Erwood v Maxted
[2020] NZCA 537
•2 November 2020 at 9 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA567/2007 [2020] NZCA 537 |
| BETWEEN | ROBERT ERWOOD |
| AND | JANET MAXTED AND JANET MAXTED AND ALEXANDER JAMES JEREMY GLASGOW AS TRUSTEES OF THE ESTATE OF EDWARD ERWOOD |
| Court: | Kós P, Cooper and Gilbert JJ |
Counsel: | Applicant in person |
Judgment: | 2 November 2020 at 9 am |
JUDGMENT OF THE COURT
AThe application for recall is declined.
BThere is no order as to costs.
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REASONS OF THE COURT
(Given by Kós P)
Mr Erwood seeks recall of a judgment of this Court dated 27 March 2012.[1]
Background
[1]Erwood v Maxted [2012] NZCA 110 [Court of Appeal judgment].
The respondents served a bankruptcy notice on Mr Erwood in respect of three costs judgments. Mr Erwood applied to set aside the bankruptcy notice. Associate Judge Christiansen declined his application.[2] Mr Erwood was then adjudicated bankrupt on 22 November 2007.[3]
[2]Maxted v Erwood HC Nelson CIV-2007-442-331, 28 September 2007.
[3]Maxted v Erwood HC Nelson CIV 2007-442-331, 22 November 2007.
However, Mr Erwood pursued an appeal against the decision declining to set aside the bankruptcy notice.[4] This Court dismissed Mr Erwood’s appeal on 27 March 2012. The judgment was subsequently sealed on 11 December 2013. It is that judgment which Mr Erwood now seeks to recall.
[4]Court of Appeal judgment, above n 1.
Mr Erwood also appealed against the decision adjudicating him bankrupt. However, this Court did not determine the appeal, as ultimately the Supreme Court held that Mr Erwood had abandoned the adjudication appeal by a notice filed on 17 December 2007.[5]
Grounds
[5]Erwood v Maxted [2011] NZSC 23 at [7] and [19].
Mr Erwood alleges there are a number of errors in this Court’s judgment. The errors listed in the application for recall are that:
(a)He did not apply for a litigation guardian, contrary to [21] of the judgment.
(b)The judgment omits to mention that Mr Erwood was excluded from attending a settlement conference discussed at [22]. The same paragraph errs in stating that a dispute as to the scope of the consent orders made subsequent to that conference was ultimately resolved in Mr Erwood’s favour.
(c)Mr Erwood disagrees with the statement at [57] that “Mr Erwood’s liability to pay the court costs was clear and he did not pay them.” He says he was unable to pay because there were charging orders over his money.
Further alleged errors with other paragraphs of the judgment are listed in Mr Erwood’s submissions. We need not traverse them individually.
Discussion
Whether or not there remains a residual discretion to recall sealed judgments,[6] there is no basis for doing so here. The Supreme Court has recently confirmed that this Court’s recall jurisdiction, in both criminal and civil matters, is sufficiently captured by the standard prescribed in Horowhenua County v Nash (No 2):[7]
Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled — first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.
[6]See, for example, Unison Networks Ltd v Commerce Commission [2007] NZCA 49 at [14]–[18].
[7]Uhrle v R [2020] NZSC 62 at [25]–[29], citing Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
The first two criteria are not relevant. The third criterion is not made out either. Of the alleged errors, those that may be material in effect involve challenges to substantive findings of fact which are not properly the subject of recall applications, but ought to be determined on appeal.[8] Recall is for demonstrable, material defects that speak for themselves. If immaterial, there is no need for recall. If complex, contested matters of fact are advanced, appeal is the appropriate route.
[8]Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19,832 (HC) at [13], endorsed by this Court in Rogan v Kaipara District Council [2018] NZCA 553 at [11].
Even if these objections were not enough, two further obstacles lie in Mr Erwood’s path. First, there is no utility whatever in recalling a judgment on an appeal against a decision declining to set aside a bankruptcy notice when subsequently he was adjudicated bankrupt (and abandoned his appeal against that decision). Secondly, Mr Erwood has not explained adequately his extraordinary delay in bringing this application to recall a judgment delivered more than eight years ago.
Result
The application for recall is declined.
There is no order as to costs, the respondents not having participated in the application. But for that, an award of costs would have been made.
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