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Erwood v Maxted

Erwood v Maxted

Case [2009] NZCA 542 18 November 2009

Civil Litigation & Procedure

Bankruptcy & Insolvency Law

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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…

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 [2009] NZCA 542
Case: [2009] NZCA 542
Decision Date: 18 November 2009

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Mr Robert Erwood brought three applications in relation to ongoing litigation between himself, Mrs Raylee Patricia Harley, the trustees of the estate of Edward Erwood and the Official Assignee. The first application sought recall of the Court's judgment of 19 March 2008 fixing security for costs in relation to two appeals filed by Mr Erwood. The second application sought leave to appeal a costs award given on 31 October 2007 in proceedings between Mr Erwood and Mrs Harley. The third application sought an order finding the publishers of The Capital Letter in contempt of court. The Court declined Mr Erwood's application to recall the judgment of 19 March 2008. The Court granted Mr Erwood's application for leave to appeal against the costs award, but on limited terms. The Court found no contempt of court in the publication by The Capital Letter.

Orders