Erwood v Maxted - [2008] NZCA 74

IN THE COURT OF APPEAL OF NEW ZEALAND
CA567/07
[2008] NZCA 74

BETWEENROBERT ERWOOD

Appellant

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

Respondents

CA631/07
AND BETWEEN ROBERT 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

Hearing:17 March 2008

Court:William Young P, Ellen France and Baragwanath JJ
Counsel:J Soondram via videolink for Appellant

G M Downing via videolink for Respondents
P R W Chisnall for Official Assignee

Judgment:19 March 2008 at 4.30 pm

JUDGMENT OF THE COURT

A THE APPLICATION TO STRIKE OUT THE APPEALS IS DISMISSED.
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.

DUNLESS THE APPELLANT NO LATER THAN 5 PM ON 9 APRIL 2008 FILES FOUR COPIES OF THE CASE ON APPEAL IN A FORM COMPLYING WITH THE COURT OF APPEAL RULES THE APPEALS IN BOTH CA567/07 AND CA631/07 WILL BE STRUCK OUT.

EUNLESS THE APPELLANT NO LATER THAN 5 PM ON 9 APRIL 2008 FILES AND SERVES ON THE RESPONDENTS FOUR COPIES OF HIS WRITTEN SUBMISSIONS AND CHRONOLOGY IN A FORM COMPLYING WITH THE COURT OF APPEAL RULES THE APPEALS IN BOTH CA567/07 AND CA631/07 WILL BE STRUCK OUT.

FIF THE APPEALS HAVE NOT PREVIOUSLY BEEN STRUCK OUT, THE RESPONDENT’S SUBMISSIONS ARE TO BE FILED AND SERVED ON THE APPELLANT AT THE OFFICES OF MR ROPATI BY 19 APRIL 2008.

GThe appellant is to pay the costs associated with the security for costs issues to date in relation to both appeals including the hearing of 17 March 2008 which we fix at $3,000 and order to be paid forthwith. 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, that sum is to be paid by the Official Assignee forthwith to the respondents out of the frozen funds pursuant to the appellant’s authority.

____________________________________________________________________
REASONS OF THE COURT
(Given by Baragwanath…

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 [2008] NZCA 74
Case: [2008] NZCA 74
Decision Date: 19 March 2008

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Erwood v Maxted involved Robert Erwood as the appellant and Janet Maxted and Janet Maxted and Alexander James Jeremy Glasgow as Trustees of the Estate of Edward Erwood as respondents. The case dealt with two appeals, CA567/07 and CA631/07, against decisions related to a bankruptcy notice issued by the respondents and an order of adjudication in bankruptcy made by Associate Judge Christiansen. The respondents sought to have the appeals struck out due to the appellant's alleged breach of an order for security for costs.

The legal issues the court needed to decide included whether the appeals should be struck out for the appellant's failure to provide security for costs and the appropriate amount of security for costs required. The court also needed to consider the appellant's history of delays and whether his mental health necessitated the appointment of a litigation guardian.

The court decided against striking out the appeals but warned that any further breach by the appellant of the conditions imposed would result in the appeals being struck out. The court ordered that security for costs in CA567/07 in the sum of $4,740 was to be paid by the Official Assignee to the Registrar of this Court out of the frozen funds. For CA631/07, the court fixed security for costs at $20,000, to be paid by the Official Assignee if the appellant authorised it within the given timeframe. The appellant was also required to file the case on appeal and written submissions and chronology in a form complying with the Court of Appeal Rules by 9 April 2008, or face the possibility of the appeals being struck out.

The court further ordered that the appellant was to pay the costs associated with the security for costs issues to date in relation to both appeals, fixed at $3,000, and to be paid forthwith. If the appellant authorised the Official Assignee to make payment within the given time, the sum would be paid by the Official Assignee to the respondents out of the frozen funds. The respondents' submissions were to be filed and served on the appellant by 19 April 2008. The court also decided to appoint amicus curiae to assist at the hearing of the appeal on 23 April.

Orders