Erwood v Maxted - [2013] NZCA 573

IN THE COURT OF APPEAL OF NEW ZEALAND

CA567/2007
[2013] NZCA 573

BETWEEN	ROBERT ERWOOD Applicant
AND	JANET MAXTED AND JANET MAXTED AND ALEXANDER JAMES JEREMY GLASGOW AS TRUSTEES OF THE ESTATE OF EDWARD ERWOOD First Respondents
AND	THE OFFICIAL ASSIGNEE Second Respondent

Court:

O'Regan P, Ellen France and Stevens JJ

Counsel:

Applicant in person
C R Carruthers QC and R P Harley for First Respondents
P R W Chisnall and D Slevin for Second Respondent
P D McKenzie QC as counsel assisting the Court

Judgment:

(On the papers)

22 November 2013 at 2 pm

JUDGMENT OF THE COURT

AThe applicant’s application for costs in CA567/2007 is dismissed.
BOrders are made that:
(i)The judgment of 27 March 2012 ([2012] NZCA 110) be sealed.
(ii)The $4,740 held as security for costs in relation to CA567/2007 and any accumulated interest be released to the first respondents as soon as the costs owed to the first respondents and the disbursements of the first respondents that relate to CA567/2007 have been calculated.

____________________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Application for costs

In this judgment, we deal with an application by Mr Erwood, the applicant, for an award of costs and release to him of security for costs held for this appeal (CA567/2007).

Panel

The panel that dealt with the applicant’s substantive appeal comprised O’Regan P, Glazebrook and Arnold JJ. As Glazebrook and Arnold JJ have now been appointed to the Supreme Court, the President has constituted the present panel to deal with the application.

Background

The applicant was issued with a bankruptcy notice by Ms Maxted and Mr Glasgow (the first respondents). He applied to set aside the bankruptcy notice. Associate Judge Christiansen dismissed that application on 27 September 2007.[1] The applicant appealed against that decision to this Court, which is appeal CA567/2007 (the “bankruptcy notice appeal”).
[1]Erwood v Maxted HC Nelson CIV-2007-442-331, 27 September 2007.
On 22 November 2007 Associate Judge Christiansen adjudicated the applicant bankrupt.[2] The applicant appealed the adjudication order. That was appeal CA631/2007 (the “adjudication appeal”).
[2]Maxted v Erwood HC Nelson CIV-2007-442-331, 22 November 2007.
It emerged some time later that a notice of abandonment of the adjudication appeal dated 17 December 2007 was on the Court file but had not been acted upon and was not drawn to the attention of the Judges dealing with the appeal.
Security for costs was set for the bankruptcy notice appeal at $4,740. On 21 December 2007 an extension of time was given for the giving of security in the adjudication appeal. The existence of the notice of abandonment was not drawn to the Court’s attention after the extension of time was granted.
Both appeals were called on 17 March 2008 to determine whether they should be struck out for failure to provide security. The applicant was not present at that hearing but was represented by Mr Soondram. The Court delivered its judgment on 19 March 2008.[3] The Court noted that security had been set…

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 [2013] NZCA 573
Case: [2013] NZCA 573
Decision Date: 22 November 2013 at 2 pm

CaseChat Overview and Summary

In the case of Erwood v Maxted, the Court of Appeal of New Zealand dismissed the applicant's application for costs. The applicant, Robert Erwood, sought an award of costs and the release of security for costs held in relation to the appeal CA567/2007. The first respondents, Janet Maxted and Alexander James Jeremy Glasgow as trustees of the estate of Edward Erwood, and the Official Assignee opposed the application. The applicant had previously appealed against the decision to set aside a bankruptcy notice and the adjudication order, which were both dismissed. The Court of Appeal held that it was not appropriate to award the applicant costs in relation to the earlier judgment of 19 March 2008, as the issue of costs had already been resolved by the judgment of 27 March 2012.

The court found that the order of 27 March 2012, which dealt with the issue of costs in CA567/2007, resolved the costs in the bankruptcy notice appeal. It was noted that the Supreme Court had set aside the costs order made against the applicant in the 19 March 2008 judgment, but did not order that costs be paid to the applicant. The Court of Appeal considered that the costs order in the judgment of 27 March 2012 was final and that the applicant had the benefit of the Supreme Court's decision setting aside the costs order against him.

In light of this, the Court of Appeal dismissed the application for costs and ordered that the judgment of 27 March 2012 be sealed. The security for costs of $4,740 held in relation to CA567/2007 and any accumulated interest would be released to the first respondents once the costs owed to them and the disbursements that relate to CA567/07 have been calculated. If the costs and disbursements do not exceed the amount held as security, any excess would be refunded to the applicant.

Orders