Erwood v Maxted - [2007] NZCA 161

IN THE COURT OF APPEAL OF NEW ZEALAND
CA126/06
[2007] NZCA 161
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:30 April 2007 at 11 am

JUDGMENT OF THE COURT

AThe application for extension of time for applying for the allocation of a hearing date and filing the case on appeal is dismissed.
BThe appellant must pay costs of $1,500 plus usual disbursements to the respondents.

REASONS OF THE COURT
(Given by O’Regan J)
The appellant’s appeal
[1]       This is an appeal against a judgment of Wild J, Erwood v Maxted & Ors HC NEL CIV-2003-442-363 26 May 2006. The Judge dismissed the appellant’s claim that his brother’s estate, administered by the second respondents, held a house subject to a trust in the appellant’s favour.
[2]       Wild J ordered the appellant to pay costs to the first respondent (the appellant’s sister, Janet Maxted), and the second respondents (Ms Maxted and the other trustee of the appellant’s brother’s estate, Mr Glasgow).
Issue
[3]       The deadline by which the appellant was required under the Court of Appeal (Civil) Rules 2005 (the Rules) to file the case on appeal and apply for a fixture has expired. The appellant seeks an extension of time. The respondents oppose this. The issue before us is whether an extension should be granted.
Background
[4]       Wild J refused to adjourn the hearing of the appellant’s case in the High Court and it proceeded in the appellant’s absence, though with the assistance of an amicus. In doing so he referred to an observation by Ronald Young J in Glasgow Harley v Erwood HC NEL CP 22/98 30 May 2002 that there was evidence that the appellant was a mentally fragile man who has used his mental illness at times in a highly manipulative way to advantage himself in litigation.
[5]       The appellant filed an appeal to this Court on 22 June 2006. He sought a stay of execution of Wild J’s judgment pending his application for legal aid to facilitate the appeal. On 16 August 2006, Ronald Young J granted a stay on the basis that if one were not granted, the estate would sell the house, thereby rendering the appellant’s appeal rights nugatory. The stay was conditional as follows:
(a)If the appellant were successful in obtaining legal aid, the Court would not order the payment of costs incurred before Wild J. If he were unsuccessful, the respondents would be entitled to security for costs ordered in the High Court and the appellant would be required to pay to the Registrar of the High Court at Nelson the full amount of the costs ordered by Wild J within seven days of the final refusal by legal aid authorities;
(b)The appellant was required to pursue his appeal expeditiously and to comply with the Rules. A failure…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Erwood v Maxted

Details

AGLC: Erwood v Maxted [2007] NZCA 161
Case: [2007] NZCA 161
Decision Date: 30 April 2007

CaseChat Overview and Summary

In Erwood v Maxted, the appellant appealed a judgment dismissing his claim against his sister and the trustees of his deceased brother’s estate. The appellant sought an extension of time to file his case on appeal and apply for a hearing date. The respondents opposed this, arguing that the appellant had abused the process of the Court and was not entitled to legal aid. The Court found that the appellant’s delays in filing the case on appeal were due to his attempts to obtain legal aid, which were unlikely to be successful given his considerable financial assets. The Court also noted the appellant’s history of disruptive behaviour and disregard for the Rules, which disentitled him to an extension of time. The appeal was deemed abandoned, and the appellant was ordered to pay costs to the respondents.

Orders