Erwood v Maxted

[2009] NZCA 542

s

IN THE COURT OF APPEAL OF NEW ZEALAND

CA567/2007
CA631/2007
[2009] NZCA 542

BETWEENROBERT ERWOOD

Appellant

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

First Respondents

ANDTHE OFFICIAL ASSIGNEE

Second Respondent

CA485/2007

AND BETWEEN  ROBERT ERWOOD

Appellant

ANDRAYLEE PATRICIA HARLEY

Respondent

Hearing:19 October 2009

Court:Arnold, Randerson and Allan JJ

Counsel:R Erwood in Person

P D McKenzie QC as Amicus Curiae
C R Carruthers QC for Raylee Patricia Harley

Judgment:18 November 2009 at 2.30 pm 

JUDGMENT OF THE COURT

AMr Erwood’s application to recall the judgment of this Court delivered on 19 March 2008 ([2008] NZCA 74) fixing security for costs in relation to his appeals numbered CA567/07 and CA631/07 is declined.

BMr Erwood’s application for  leave to appeal against the costs award given on 31 October 2007 in proceedings before Ronald Young J (HC WN CIV 2000-485-27) is granted subject to the conditions set out in [47] of this decision.

CMr Erwood’s informal application in relation to alleged contempt of court by the publishers of The Capital Letter is dismissed.

DThe costs of Mr P D McKenzie QC as amicus curiae are to be fixed and paid by the Registrar of this Court.

EMrs R P Harley is entitled to costs against Mr Erwood in respect of the application for recall for a standard appeal on a band A basis plus usual disbursements.

FThe issue of costs in relation to Mr Erwood’s application for leave to appeal is reserved pending the final outcome of the appeal.

___________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1]        This judgment deals with three applications made by Mr Robert Erwood.  They form part of long-running litigation between Mr Erwood, Mrs R P Harley, the trustees of the estate of Edward Erwood and the Official Assignee.

[2]        It is unnecessary to recite the full history of the various pieces of litigation involving Mr Erwood.  The various events have been detailed in previous judgments of this Court.  It is sufficient to say by way of background that Mr Erwood was adjudicated bankrupt on 22 November 2007.  The bankruptcy notice relied on three judgment debts each relating to costs orders made against Mr Erwood in proceedings in which he was unsuccessful.  Mr Erwood’s application to set aside the bankruptcy notice was dismissed by Associate Judge Christiansen on 28 September 2007. 

[3]        Mr Erwood then filed two appeals in this Court.  The first (CA567/07) was an appeal against the refusal to set aside the bankruptcy notice.  The second (CA631/07) was an appeal against the making of the order for adjudication. 

[4]        On 19 March 2008, this Court dismissed an application by the respondents to strike out Mr Erwood’s appeals but made the following orders against him for security for costs:

BSecurity for costs in CA567/07 in the sum of $4,740 is to be paid by the Official Assignee forthwith to the Registrar of this Court out of the frozen funds pursuant to the appellant’s authority advised to the Court by his counsel on 18 March 2008.

CSecurity for costs in CA631/07 is fixed at $20,000. Unless the appellant no later than 5 pm on 20 March 2008 authorises the Official Assignee to make payment of that sum to the Registrar of this Court the appeals in both CA567/07 and CA631/07 will be struck out. If the appellant gives such authority to the Official Assignee within such time, the further sum of $20,000 is to be paid by the Official Assignee forthwith to the Registrar of this Court out of the frozen funds pursuant to the appellant’s authority.

[5]        The reference to frozen funds in the orders above is to funds then held in certain bank accounts under the control of the Official Assignee in relation to Mr Erwood’s bankruptcy.  There is no dispute that the Official Assignee was holding or controlling more than sufficient funds to enable the sums ordered by way of security for costs to be paid.  The sums so ordered were not paid as directed and both appeals were struck out as a consequence.  Mr Erwood’s first application before this Court is for an order recalling the judgment of 19 March 2008.

[6]        The second application relates to an order for costs in the sum of $11,200 plus disbursements made by Ronald Young J in proceedings between Mr Erwood and Mrs Harley: HC WN CIV 2000-485-27 31 October 2007.  Those costs followed a substantive hearing in which Mr Erwood unsuccessfully sought orders setting aside two writs of sale obtained by Mrs Harley and executed by the Registrar of the High Court.  Mr Erwood now seeks leave to appeal out of time against the costs decision.

[7]        The third application is informal in nature.  Mr Erwood contends that the publishers of The Capital Letter are in contempt of court by publishing the fact of his bankruptcy.  No oral argument was addressed to this last issue, Mr McKenzie QC as amicus curiae advising the Court that this matter could be dealt with on the papers. 

[8]        The first respondents in CA567/07 and CA631/07 informed the Court by memorandum that they did not wish to appear and would adopt the submissions of Mrs Harley and the Official Assignee.

Composition of Court

[9]        Mr Erwood filed a memorandum objecting to the composition of the Court.  In particular he said that Baragwanath J had directed that the matter should be set down before a coram involving Ellen France J and himself, and that Arnold J had not sat on earlier occasions because of his prior involvement with Mr Erwood. 

[10]       As to the first point, Mr Erwood relies on a memorandum dated 22 June 2009 which Baragwanath J sent to a member of the Court’s Registry.  In that memorandum Baragwanath J asked that a fixture be made for a court including himself and Ellen France J to deal with the present matters.  No doubt this reflected the fact that he and Ellen France J were members of the coram which issued the 19 March 2008 judgment that is the subject of the recall application.  As it transpired, it would not have been possible to hold a hearing involving both Judges until early 2010, which, given the delays to date, was thought to be unsatisfactory.  Accordingly, the matters were set down before the present coram.  Further, it should be noted that the memorandum did not record a formal direction of the Court.

[11]       As to Arnold J’s position, shortly after joining the Court of Appeal, he indicated a preference not to sit on matters involving Mr Erwood because of the involvement referred to below, but does not consider that he is precluded from sitting by reason of conflict, actual or perceived.  For that reason he sat as part of the coram which delivered a judgment dated 23 December 2008 in CA631/07, without objection from Mr Erwood.

[12]       Arnold J’s prior involvement is that in 1998 or 1999 while at the Bar he was asked by Mr Erwood to consider the judgment of Giles J in McDonald v FAI Insurance HC AK CP507/96 11 December 1997 in order to assess whether Mr Erwood (then known as Mr McDonald) had grounds for an appeal.  This work concerned Mr Erwood’s claim against the New Zealand Law Society and not the costs award against Mrs Harley.  The work was preliminary in nature and was undertaken on a pro bono basis, and Arnold J had very limited contact with Mr Erwood.  The appeal was ultimately argued by Mr Mathieson QC: see McDonald v New Zealand Law Society CA33/98 7 December 1999.

[13]       We do not consider that either matter prevents us from dealing the present applications.

Mr Erwood’s application to recall this Court’s judgment of 19 March 2008 in relation to security for costs

[14]       Mr McKenzie made detailed submissions in support of Mr Erwood’s application to recall the judgment of 19 March 2008.  He relied in part on written submissions made by Ms Levy who was earlier appointed as amicus curiae to assist Mr Erwood.  Mr McKenzie’s oral submissions were supplemented by Mr Erwood himself from time to time during the course of the hearing before us. 

[15]       It is common ground that an application for recall is to be considered in accordance with the principles set out in Horowhenua County Council v Nash (No 2) [1968] NZLR 632 at 633 (SC):

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.

[16]        These principles have been affirmed by this Court on a number of occasions including Sexton v Rice Craig [2008] NZCA 324; Air Nelson Ltd v Minister of Transport [2008] NZAR 139 (CA); and Unison Networks Ltd v Commerce Commission [2007] NZCA 49.

[17]       Mr McKenzie also referred to the possibility of a general residual jurisdiction available to the court to reopen an appeal in order to avoid injustice, citing Payne v Payne (2005) 17 PRNZ 518 (CA) and R v Smith [2003] 3 NZLR 617 at [34] (CA). For present purposes, we proceed on the basis that in the absence of a relevant law change or a failure to direct the court’s attention to a legislative provision or authoritative decision of plain relevance (neither of which is suggested here), the court will require special reasons to conclude that justice requires a judgment to be recalled: see the approach adopted by this Court in Rainbow Corporation Ltd v Ryde Holdings Ltd (1992) 5 PRNZ 493.

[18]       Mr Erwood’s application for recall focused on three principal issues:

(a)Alleged defects in the process leading to the fixing of security for costs;

(b)The order that both appeals would be struck out unless the sum of $20,000 in respect of CA631/07 was paid by 5 pm on 20 March 2008; and

(c)Alleged incapacity issues.

[19] We record that the sum of $4740 ordered to be paid by way of security in respect of CA567/07 was first fixed by the Registrar of this Court under r 35 of the Court of Appeal (Civil) Rules 2005 and later upheld by Ellen France J, exercising her power to review the Registrar’s decision under r 7(2): [2007] NZCA 529. That sum was ultimately paid (as we describe at [25] below) and is not now in issue.

Process issues

[20]       It was submitted that the proper process to fix security for costs for CA631/07 should have involved an initial decision by the Registrar, subject to a review by a judge.  It was submitted that the rules do not contemplate a coram of three judges increasing security for costs without formal application or notice. 

[21]       There can be no doubt that the issue of security for costs did not proceed on the normal default process under rr 35(2) – (5), or by decision by the Registrar under rr 35(6) – (8), subject to review by a single judge.  Equally however the numerous appeals and applications filed by Mr Erwood have been anything but usual. 

[22]       On 21 December 2007 William Young P issued a minute in which, amongst other things, he extended the time for Mr Erwood to provide security for costs in CA631/07 until 9 February 2008.  In the minute, the President warned Mr Erwood that he would be well advised not to seek a dispensation from security for costs without first having taken all practicable steps to pay security, including seeking a release of sufficient funds from the money presently held under order of the court to permit that to happen. 

[23]       On 30 January 2008 Mr Erwood applied for dispensation from the requirement to pay security for costs in CA631/07, attaching only one of two letters of 21 January 2008 from the Official Assignee.  These letters set out the Official Assignee’s stance in relation to his willingness to release sufficient funds to satisfy an order for security for costs.  The letters were apparently inconsistent on this point.

[24]       Then, on 25 February 2008 the President directed that both CA567/07 and CA 631/07 be called on 17 March 2008 to determine whether they should be struck out under r 37(1) for failure to provide security.  An explanation was also sought at that time in relation to the two apparently inconsistent letters issued by the Official Assignee on 21 January 2008.  The Official Assignee’s position in that respect was clarified by an affidavit in which he made it clear that, subject to Mr Erwood’s direction, the necessary funds for security would be released. 

[25] As at 17 March 2008, Mr Erwood had not paid security for costs in either CA567/07 or CA631/07, despite the dismissal of his application to review the Registrar’s decision refusing waiver in CA567/07 and the President’s minutes of 21 December 2007 and 25 February 2008 in relation to CA631/07. Mr Erwood could have been in no doubt at the time of the hearing that security for costs in relation to both appeals was at issue and that his failure to pay security for costs up to that date had placed his appeals in serious jeopardy, with the real prospect they would be struck out upon application by the respondents. The respondents’ intention to seek an order striking out the appeals had been signalled in memoranda dated 12 February 2008 and 13 March 2008. No more formal application was required by the Rules in the circumstances of this case. The $4,740 ordered by way of security in CA567/07 was paid immediately after the hearing (see order B at [4] above).

[26]       We are satisfied that the Court had jurisdiction to make orders as to security for costs under the broad power conferred by r 5(1) to “give any directions that seem necessary for the just and expeditious resolution of any matter that arises in a proceeding”.

[27]       The second process issue raised was the lack of notice that a sum substantially higher than usual would be fixed for security for costs.  At the hearing on 17 March 2008 Mr Erwood was not present personally but was represented by a lawyer (Mr Soondram) via video-link.  Mr Soondram has provided a letter to Mr McKenzie dated 16 September 2009 to the effect that his instructions to appear at the hearing were very limited and only in relation to the issue of whether or not the appeals ought to be struck out.  Although he accepted his recollection of events was “somewhat vague” he was “certain that a figure of about $4000” was mentioned in respect of each appeal.  His letter says he advised the Court that Mr Erwood would consent to orders being made in respect of security for costs.  The decision of the Court was reserved and delivered on 19 March 2008. 

[28] We accept it is possible that the figure of $20,000 for security for costs in respect of CA631/07 was not discussed at the hearing although Mr Soondram’s recollection of events is not supported by the judgment of the Court which refers to agreement only in respect of the security for CA567/07: at [17]. The reason for the higher award stated in this Court’s judgment was to allow for the possibility of an increased costs order against Mr Erwood should it be established at the substantive appeal that he had misled the Court in relation to the letters of 21 January 2008 from the Official Assignee. While accepting that the amount fixed for security for costs was higher than normal, we are satisfied it was within the discretion of the Court.

[29]       There could be no injustice to Mr Erwood in the making of the orders since it is accepted that the funds were available to him subject only to his giving the necessary authorisation to the Official Assignee to release the funds to the Court.  There is no question this could have been done within the strict time limit specified.  That limit was justified given Mr Erwood’s serial failures to comply with court orders in the past.  Mr McKenzie suggested that the Court should have taken into account that Mr Erwood might react adversely to a security for costs order of the magnitude fixed.  We were not persuaded there is anything in this point.  Mr Erwood was aware of his obligations and the consequences should he fail to meet them.  His failure to do so must be treated as his sole responsibility.

The requirement that both appeals be struck out if the $20,000 for CA631/07 was not paid

[30]       The second issue raised in relation to the recall application is the requirement that the security for both appeals be paid within the time fixed, failing which both would be struck out.  It was submitted that no principled basis was given for the linking of the two appeals in this way.  It was submitted that Mr Erwood ought to have been free to pursue one appeal and abandon the other. 

[31]       We accept that, in the ordinary course, the payment of security for costs and the consequences of non-payment should be kept separate for discrete appeals.  But, in the present case, while there was no formal order for consolidation or joint hearing of the appeals, it is common ground that both appeals were closely linked.  There was no suggestion that they should be heard separately.  Rather, the assumption clearly was that they would be heard together.  If the bankruptcy notice were set aside on appeal in CA567/07 then the order for adjudication could not stand.  A successful challenge to the adjudication order under CA631/07 would have achieved the same result. 

[32]       In the circumstances, we are satisfied it was appropriate to order that both appeals be struck out if the security for both was not paid by the time specified.  Mr Erwood did not forfeit the right to abandon one of the proceedings.  He could have paid the security ordered in respect of either of the appeals and abandoned the other. 

Mr Erwood’s capacity

[33]       The final issue relates to Mr Erwood’s capacity.  A medical certificate dated 17 March 2008 from Dr Louise Aldridge was produced immediately after the hearing of this Court and was considered.  This certificate offered the opinion that Mr Erwood was not capable of representing himself in court.  It was stated he had multiple psychiatric and physical conditions which had deteriorated recently and that the stress of the court proceedings was contributing to this.  The appointment of a litigation guardian was suggested. 

[34] The issue of a litigation guardian has been discussed in various decisions relating to Mr Erwood’s litigation. See, for example, the discussion by this Court in [2008] NZCA 139. For present purposes, we are concerned only with the hearing on 17 March 2008 before this Court. On that occasion, Mr Erwood was represented by legal counsel. While his legal representative on that occasion may have had limited instructions, we are satisfied from our own observations of Mr Erwood that he could have been in no doubt about the import of this Court’s decision delivered on 19 March 2008 which clearly stated the orders made. For reasons of his own, Mr Erwood decided not to comply with those orders when he could have done so without difficulty. We conclude that any impairment from which Mr Erwood may have been suffering had no impact on his ability to comply with the orders made or on the conduct of the hearing on 17 March.

[35]       Both counsel addressed some argument about the merits of the appeals which have been struck out.  While it is possible there may have been one or two arguable points as noted by this Court on previous occasions (including in its judgment of 19 March 2008), none of the challenges raised by the appeals could be regarded as having such obvious merit as to give rise to a substantial injustice to Mr Erwood should his application for recall of the 19 March 2008 judgment be refused.

[36]       We record that Mr Carruthers QC submitted that this Court had no jurisdiction to entertain the recall application given views expressed by this Court and the Supreme Court on appeals relating to a stay on advertising of Mr Erwood’s bankruptcy.  It is unnecessary for us to deal with that submission in the circumstances.  Nor need we address an issue about the introduction of further evidence since it was agreed it was immaterial in the light of a concession made by Mr Carruthers.

[37]       In summary, we are not persuaded that there are any special reasons to justify the recall of the judgment or to displace the objective of finality in litigation.

Mr Erwood’s application for leave to appeal against the costs award given on 31 October 2007

[38]       The background to this application is as follows.  On 29 June 2007, a writ of sale was issued by Mrs Harley against property owned by Mr Erwood.  On 9 July 2007, Mr Erwood applied for orders setting aside the writ of sale and appointing an amicus curiae.  He did not seek an order appointing a litigation guardian at that time but did so subsequently.  On 6 August 2007, Mr Erwood’s application for the appointment of an amicus and Mrs Harley’s application for security for costs were heard by Simon France J.  Both applications were dismissed by judgments delivered on 7 and 10 August 2007 respectively. 

[39]       On 12 September 2007, Ronald Young J delivered his judgment on Mr Erwood’s substantive application to set aside the writ of sale.  The application was dismissed and costs memoranda were directed.  Mrs Harley filed her memorandum on 17 September 2007 and Mr Erwood on 29 October 2007.  Ronald Young J delivered his decision as to costs on 31 October 2007 awarding $11,200 plus disbursements to Mrs Harley.

[40]       Mr Erwood appealed against the substantive judgment of Ronald Young J (CA485/07).  This appeal has been struck out for non-payment of security for costs.

[41]       Mr Erwood maintains that he filed a notice of appeal against the costs judgment within time.  He says further that he was informed by registry staff that the relevant file had been lost and was not located despite his repeated inquiries.  Our inquiries of the registry have not produced a copy of any such notice of appeal.  However, there is some support for Mr Erwood’s assertions because Mrs Harley has filed an affidavit in which she attaches a copy of a notice of appeal by Mr Erwood dated 17 November 2007 which she says was date-stamped 18 November 2007.  This was served around that date.  Mrs Harley says that she checked with the Registrar for the number of the appeal and was advised there was no such number.  She does not know whether the notice of appeal was filed but did not receive any communications from the Court about it.

[42]       On 23 April 2009, Mr Erwood filed an application for leave to appeal against the costs judgment.  By this time, nearly 18 months had gone by from the date of the judgment.

[43]       Mr McKenzie was uncertain whether the former r 29(4) of the Court of Appeal (Civil) Rules 2005 applies or whether the present r 29A is applicable.  The latter has effect from 1 July 2008.  However, he accepted that the relevant considerations were the same whichever rule applied.  The Court has a general discretion to grant an extension of time to appeal.  Leave is not lightly granted; the overriding consideration is the justice of the case: Hetherington Ltd v Carpenter (1995) 9 PRNZ 1 (CA) and Havanaco Ltd v Stewart (2005) 17 PRNZ 622 at [5] (CA). 

[44]       Mr McKenzie submitted there was an adequate explanation for the delay; there was no significant prejudice to Mrs Harley if the application were granted; and the appeal had merit.  In this last respect, Mr Carruthers submitted there was no basis for interfering with the decision of Ronald Young J in relation to costs and pointed out that Simon France J, in a judgment delivered on 9 April 2009, had ruled that Mrs Harley’s proof of debt in Mr Erwood’s bankruptcy (which included the costs awarded by Ronald Young J) was properly accepted by the Official Assignee.  He submitted that Mr Erwood’s cross-appeal in respect of Simon France J’s judgment had not been properly served (a matter disputed by Mr Erwood).  He also submitted that the Official Assignee had not given Mr Erwood any permission to pursue any claim of his own for costs in relation to the proceedings determined by Ronald Young J.

[45]       Mr McKenzie submitted there were arguable issues in relation to four specific items in the costs award which he said were not properly recoverable.  He also submitted that Mr Erwood was entitled to costs in respect of his successful opposition to Mrs Harley’s application for security and to a proportion of a fee rendered by Mr Comeskey for legal advice to Mr Erwood.

[46]       We consider that the application for leave should be granted but on strictly limited terms.  We are prepared to give Mr Erwood the benefit of the doubt about the filing of the appeal and his explanation for the delay.  Our assessment is that there may be some merit in limited aspects of the appeal against the costs award.  However, we see little or no merit in Mr Erwood’s assertions that he should have been entitled to costs since he was representing himself.  In any event, the Official Assignee has not given him any permission to proceed with any such claim.

[47]       Accordingly, with some reluctance given the relatively minor amounts involved, we grant special leave to Mr Erwood to bring an appeal against the costs judgment of Ronald Young J but strictly on the following terms and conditions:

(a)Mr Erwood must file and serve a typewritten notice of appeal within seven days of the date of this judgment.

(b)The appeal is to be limited to the following items totalling 2.2 days at $1600 per day:

·     Preparing and filing opposition to interlocutory application for appointment of amicus - 0.6 days.

·     Preparation for hearing of defended interlocutory applications - 0.5 days.

·     Preparing and filing interlocutory application for security - 0.6 days.

·     Appearance at hearing of defended interlocutory applications on 6 August 2007 - 0.5 days.

(c)Mr Erwood must provide to this Court the sum of $4000 by way of security for costs on the appeal, such sum to be paid within seven days of today’s date.

[48]       Submissions by Mr Erwood in support of the appeal must be filed and served within 14 days of today’s date and submissions by Mrs Harley in response within 14 days thereafter.

[49]       The Registrar is to allocate a half day fixture as soon as is convenient, subject to the filing of the appeal and the payment of security for costs in accordance with these directions.

[50]       Mr McKenzie’s appointment as amicus is extended to include providing assistance to Mr Erwood in meeting the conditions upon which leave is granted and for the substantive hearing.  We are grateful to him.

Mr Erwood’s application in relation to alleged contempt of court by the publishers of The Capital Letter

[51] On 13 December 2007, this Court ordered that there be a stay of public advertising or calling of a creditors meeting in respect of the adjudication made on 22 November 2007 of Mr Erwood as a bankrupt pending the hearing of appeal CA631/07, or the abandonment or striking out of the appeal: [2007] NZCA 572. On 23 December 2008, this Court directed that the appeals CA567/07 and CA 631/07 be called on 17 February 2009 and that the stay on public advertising remain in place: [2008] NZCA 571. The Court further directed that if the creditors were paid or satisfactory arrangements entered into with them by the time of the adjourned hearing, the bankruptcy would be annulled. If not, the remaining applications would be adjourned for a fixture on the basis that the stay would be lifted. When the appeals came back before the Court on 17 February 2009, the stay on public advertising and the calling of creditors meetings was lifted. This Court found on that occasion that Mr Erwood had not ensured that his creditors were paid during the intervening period.

[52]       In the meantime, on 27 January 2009, The Capital Letter published a case note on the Court’s judgment of 23 December 2008 stating that:

...the CA ... adjourned E’s appeal against adjudication of bankruptcy to a date by which either E was to have paid the debts ($220,000 of $900,000 the OA had identified and frozen) so having the bankruptcy annulled, or the bankruptcy would stand.

[53]       Although the letter “E” was used, Mr Erwood’s name appeared in full in the case name, so that he was identified.

[54]       Mr Erwood claims that by identifying him by name and linking his name to a case note referring to his adjudication in bankruptcy, the publishers of The Capital Letter breached the order staying public advertising. 

[55]       A complaint was made to the Capital Letter and to the Solicitor-General who responded by letter of 18 May 2009 to Mr Erwood in which it was stated:

The stay on advertising was directed at “advertising” of the bankruptcy process, which in practice involves the Official Assignee publicly advertising the bankruptcy proceeding to alert creditors.  The Court did not suppress publication of the fact of your bankruptcy, or suppress its own judgment.  I do not consider that the publication by The Capital Letter amounted to a breach of the stay against advertising.  I advise that this office will not be taking any further steps in relation to it.

[56]       Mr McKenzie submitted that this Court had jurisdiction to initiate contempt proceedings if it considered it appropriate to do so in circumstances where an order of this Court has been breached.  We do not need to enter into the issue of jurisdiction since we are satisfied that the publication did not breach the order staying advertising.  Following the making of an order for adjudication, the Official Assignee is obliged to advertise the adjudication and its date (s 31 of the Insolvency Act 1967 then in force) and, except as provided in s 34A of that Act, to summon a meeting of creditors under s 34.  The order of this Court placed a temporary stay prohibiting the Official Assignee from taking those steps.  It did not restrict the publication of the fact of the bankruptcy by others.

[57]       We conclude there is no justification for taking any further steps in relation to the alleged contempt.

Summary and conclusions

[58]       For the reasons stated:

(a)Mr Erwood’s application to recall of the judgment of this Court delivered on 19 March 2008 ([2008] NZCA 74) fixing security for costs in relation to his appeals numbered CA567/07 and CA631/07 is declined;

(b)Mr Erwood’s application for leave to appeal against the costs award given on 31 October 2007 in proceedings before Ronald Young J (HC WN CIV-2000-485-27) is granted subject to the conditions set out in [47]  of this decision;

(c)No action is required in respect of Mr Erwood’s informal application in relation to alleged contempt of court by the publishers of The Capital Letter.  We find there was no contempt of court.

(d)The costs of Mr McKenzie as amicus curiae are to be fixed and paid by the Registrar of this Court.

(e)Mrs­ Harley is entitled to costs against Mr Erwood in respect of the application for recall for a standard appeal on a band A basis plus usual disbursements;

(f)The issue of costs in relation to Mr Erwood’s application for leave to appeal is reserved pending the final outcome of the appeal.

Solicitors

McFadden McMeeken Phillips, Nelson for First Respondents in CA567/07 and CA631/07

The Official Assignee as Second Respondent in CA567/07 and CA631/07

Russell McVeigh, Wellington for Respondent in CA485/07