Erwood v Maxted

[2007] NZCA 236

IN THE COURT OF APPEAL OF NEW ZEALAND

CA126/06
[2007] NZCA 236

BETWEENROBERT ERWOOD

Appellant

ANDJANET MAXTED

First Respondent

ANDJANET MAXTED AND ALEXANDER JAMES JEREMY GLASGOW AS TRUSTEES OF THE ESTATE OF EDWARD ERWOOD

Second Respondents

Hearing:16 April 2007

Court:O'Regan, Robertson and Wilson JJ

Counsel:J J McGuire for Appellant

G M Downing for Respondents

Judgment:12 June 2007 at 1.00pm

JUDGMENT OF THE COURT

The application for stay is dismissed.

REASONS OF THE COURT

(Given by O’Regan J)

[1]       Mr Erwood applies for a stay of the judgment of this Court which was delivered on 30 April 2007.  We also have before us a number of documents filed by Mr Erwood seeking the recall of this Court’s judgment, and a notice of opposition to the application for recall from the respondents.  In this judgment we deal with the application for stay: we will deal with the application for recall in a later judgment.  We do not intend to convene a hearing in relation to either application.

[2]       The effect of this Court’s judgment was that Mr Erwood’s application for an extension of time for applying for the allocation of a hearing date and filing of the case on appeal was dismissed, and his appeal to this Court was therefore deemed to be abandoned.

[3] Mr Erwood sought leave to appeal to the Supreme Court against this Court’s judgment. He was granted a stay by a Judge of that Court pending the outcome of his application for leave to appeal. On 31 May 2007, the Supreme Court dismissed Mr Erwood’s application for leave to appeal, and the stay was revoked: [2007] NZSC 38.

[4]       The application for recall raises issues which were never argued in the course of the original hearing in this Court, in which Mr Erwood was represented by counsel.  In those circumstances, we have to be mindful of the rights of the respondents who succeeded in this Court, as they had in the High Court.  In the normal course, they ought to be entitled to the fruits of the judgment they obtained. 

[5]       Applying the conventional factors for determining stay of applications, as summarised in Dymocks Franchise (NSW) Pty Limited v Bilgola Enterprises Limited (1999) 13 PRNZ 48 at 50, we conclude that the balance clearly favours the interest of the respondents in the present situation, and that a stay should not be granted.  In that regard, we take into account the disentitling behaviour which we highlighted in our original judgment when declining an extension of time for the prosecution of the appeal.  In our view the public interest in the finality of litigation and the rights of the respondents outweighs the appellant’s interest in preserving his attempt to reopen the case after his appeal to this Court has been deemed to be abandoned and his subsequent attempt to appeal to the Supreme Court has failed.

[6]       We therefore decline to grant a stay.

Solicitors:
Jeremy McGuire, Wellington for Appellant
McFadden McMeeken Phillips, Nelson for Respondents