ANDJANET MAXTED AND ALEXANDER JAMES JEREMY GLASGOW AS TRUSTEES OF THE ESTATE OF EDWARD ERWOOD
First Respondents
ANDTHE OFFICIAL ASSIGNEE
Second Respondent
CA485/2007 CA731/2009
AND BETWEEN ROBERT ERWOOD
Appellant
ANDRAYLEE PATRICIA HARLEY
Respondent
Court:Arnold, Randerson and Allan JJ
Counsel:Appellant in person
P D McKenzie QC as amicus curiae C R Carruthers QC for Respondent
Judgment
(On the papers): 25 March 2010 at 3 p.m.
JUDGMENT OF THE COURT
AThe application to recall the judgment of this Court of 18 November 2009 under CA567/2007 and CA631/2007 is dismissed.
BThe application for extension of time to file an appeal in CA485/2007 against the costs judgment of Ronald Young J is dismissed and that appeal is now at an end.
CThe directions as to costs memoranda are made in terms of [22] of this judgment.
(a)Declined Mr Erwood’s application to recall the judgment of this Court delivered on 19 March 2008[2] fixing security for costs in relation to his appeals CA567/07 and CA631/07;
(b)Granted Mr Erwood leave to appeal against the costs award given on 31 October 2007 in proceedings before Ronald Young J[3] but subject to strict conditions set out in [47] of our decision including the filing of an appeal and the payment of security for costs by 25 November 2009;
(c)Reserved costs on the application in (b); and
(d)Ordered Mr Erwood to pay costs to Mrs R P Harley on the recall application (as for a standard appeal on a Band A basis plus usual disbursements).
[3] Erwood v Harley HC Wellington CIV-2000-485-27.
[2] Since delivery of the judgment of 18 November 2009, we have received:
(a)A memorandum from Mr McKenzie QC dated 24 November 2009 (received on 25 November 2009) seeking an extension of time for bringing the appeal for which leave was granted until Monday 30 November 2009. This memorandum also raised an issue about a disbursement incurred by Mr Erwood which he seeks to recover in the appeal against the decision of Ronald Young J on costs.
(b)A further memorandum from Mr McKenzie dated 3 December 2009 seeking a recall of the judgment of 18 November 2009 on the ground of error of fact.
(c)A memorandum from Mr Erwood himself received on 30 November 2009 raising a series of matters and seeking a recall of the judgment of 18 November 2009.
(d)A further memorandum from Mr Erwood dated 8 December 2009 seeking a reduction to $3,100 of the amount required to be paid for security for costs in relation to the costs appeal.
(e)Three memoranda from Mr Carruthers QC (as counsel for Mrs Harley) dated 9 December 2009:
(i)disputing a submission by Mr McKenzie that there was no jurisdiction to award costs in favour of Mrs…
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
Sign in free to access the full text
Details
AGLC
Erwood v Maxted [2010] NZCA 93
Case
[2010] NZCA 93
Decision Date
CaseChat Overview and Summary
The Court of Appeal of New Zealand heard an appeal by Robert Erwood against decisions of the lower court in cases CA567/2007, CA631/2007, and CA485/2007. Erwood sought to appeal the court's decision on security for costs, the costs judgment of Ronald Young J, and to recall previous judgments. The respondents, Janet Maxted, Alexander Glasgow as trustees of the estate of Edward Erwood, and Raylee Patricia Harley, opposed the appeals and applications. The court heard arguments from Erwood in person, P D McKenzie QC as amicus curiae, and C R Carruthers QC for the respondents.
The legal issues before the court involved the validity of Erwood's applications to recall previous judgments, the conditions imposed on Erwood for appealing the costs judgment, and the court's jurisdiction to award costs to non-parties. The court examined whether Erwood's applications met the strict criteria for recalling judgments, whether he complied with the conditions set for appealing the costs judgment, and whether the court had the authority to award costs to non-parties.
The court found that Erwood's numerous attempts to revisit previous determinations constituted an abuse of process, as they did not meet the criteria for recalling judgments. The court reaffirmed that recall applications are only justified in limited circumstances, such as amendments to relevant statutes, failure to consider relevant decisions, or special reasons of justice. The court also determined that Erwood failed to comply with the strict conditions set for appealing the costs judgment, resulting in the dismissal of his appeal. Furthermore, the court held that it had jurisdiction to award costs to non-parties under the broad discretion conferred by the Court of Appeal (Civil) Rules 2005.
The court dismissed Erwood's application to recall the judgment of 18 November 2009 and denied his application for an extension of time to file an appeal against the costs judgment. The court further established guidelines for future applications to recall judgments, emphasizing the need to strictly adhere to the criteria and process for such applications.
The final orders of the court dismissed Erwood's applications to recall the previous judgments and to extend the time for filing the appeal against the costs judgment. The court also directed the parties on the process for submitting further memoranda on costs issues.