Erwood v Maxted - [2011] NZSC 23

IN THE SUPREME COURT OF NEW ZEALAND

SC 66/2010
[2011] NZSC 23

BETWEEN ROBERT ERWOOD
Appellant

AND JANET MAXTED AND ALEXANDER JAMES JEREMY GLASGOW AS TRUSTEES OF THE ESTATE OF EDWARD ERWOOD
First Respondents

AND THE OFFICIAL ASSIGNEE
Second Respondent

Hearing: 18 March 2011

Court: Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ

Counsel: Appellant in Person
No appearance for Respondents
P D McKenzie QC as Amicus Curiae

Judgment: 18 March 2011

JUDGMENT OF THE COURT

A. The appeal is allowed.
BThe appeal to the Court of Appeal is reinstated. The proceeding is remitted to the Court of Appeal for hearing.

C The costs order in the Court of Appeal is set aside.

REASONS

(Given by Blanchard J)

We have heard an appeal against the striking out of an appeal to the Court of Appeal[1] on the ground that the appellant, Mr Erwood, had not paid the security for costs ordered by the Court of Appeal. Leave to appeal to this Court was granted because at a late stage it has become apparent that the Court of Appeal proceeded on the basis of a crucial misapprehension about the matter. The respondents have offered no opposition and, this Court being satisfied that the Court of Appeal was in error, Mr Erwood’s appeal must be allowed.
[1] Erwood v Maxted [2010] NZCA 93.
The Court is grateful to Mr McKenzie QC for the assistance he has rendered as amicus in investigating and reporting to the Court on the situation.
The background factual situation is complicated but can be summarised. A bankruptcy notice was issued against Mr Erwood by the first respondents in relation to certain judgments in their favour for costs and interest. Mr Erwood applied to set aside the bankruptcy notice. Associate Judge Christiansen dismissed that application on 27 September 2007.[2]
[2] Erwood v Maxted HC Nelson CIV-2007-442-331, 27 September 2007.
Mr Erwood appealed from that decision. This was appeal CA 567/07, which we will call “the bankruptcy notice appeal”.
On 22 November 2007 the Associate Judge dealt with the bankruptcy application and made an order adjudicating Mr Erwood bankrupt.[3] On 26 November 2007 he appealed against the adjudication order. That was appeal CA 631/07, which we will call “the adjudication appeal”.
[3] Maxted v Erwood HC Nelson CIV-2007-442-331, 22 November 2007.
On 13 December 2007 Mr Erwood made an application to the Court of Appeal seeking an order for a stay of the public advertising of the bankruptcy and of the calling of a creditors’ meeting pending the hearing of the adjudication appeal. The Court looked into the merits of the appeal in some detail and granted a stay provided that security for costs was paid.[4]
[4] Erwood v Maxted [2007] NZCA 572.
Then the event occurred which has, in our view, derailed this matter. For some reason, Mr Erwood, who was a litigant in person, filed in the Registry of the Court of Appeal a notice of abandonment of the adjudication appeal. He did this on 17…

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 [2011] NZSC 23
Case: [2011] NZSC 23
Decision Date: 18 March 2011

CaseChat Overview and Summary

The case of Erwood v Maxted was heard in the Supreme Court of New Zealand. The appellant, Robert Erwood, appealed the decision of the Court of Appeal that struck out his appeal due to non-payment of the security for costs. The first respondents were Janet Maxted and Alexander James Jeremy Glasgow, as trustees of the estate of Edward Erwood, and the second respondent was the Official Assignee. The legal issues in this case involved the striking out of an appeal to the Court of Appeal due to non-payment of security for costs, and whether the Court of Appeal had proceeded on a crucial misapprehension about the matter.

The Court found that the Court of Appeal had indeed proceeded on a crucial misapprehension about the matter, as the adjudication appeal had already been abandoned by the appellant, and therefore, the Court of Appeal could not have fixed security for costs in relation to it, linked the two appeals for the purpose of payment, and then strike out the bankruptcy notice appeal for non-compliance. The appeal was allowed, the appeal to the Court of Appeal was reinstated, and the proceeding was remitted to the Court of Appeal for hearing. The costs order in the Court of Appeal was set aside.

The Court's reasoning was based on the fact that the bankruptcy notice appeal should not have been struck out for non-payment of security for costs, as the security ordered in relation to that appeal was duly paid. The strike-out order was made only because security for costs had not been provided in relation to the adjudication appeal, but since that appeal had already been abandoned, the Court of Appeal could not fix security for costs in relation to it. Thus, the appeal was allowed, and the proceeding was remitted to the Court of Appeal for hearing. The costs order in the Court of Appeal was set aside as a result.

Orders