Erwood v Maxted, Maxted and Glasgow as Trustees of Erwood

[2009] NZCA 91

IN THE COURT OF APPEAL OF NEW ZEALAND

CA567/07
CA631/07
CA545/2008
[2009] NZCA 91

BETWEENROBERT JOHN ERWOOD

Appellant

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

First Respondents

ANDTHE OFFICIAL ASSIGNEE

Second Respondent

Court:William Young  P, Hammond and Robertson JJ

On the Papers

Judgment:25 March 2008 at 11.30 am

JUDGMENT OF THE COURT

The recall application is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by William Young P)

[1]       Mr Erwood seeks what in effect is a recall of our judgment delivered on 17 February 2009.  He maintains that the annulment ought to stand and that what he refers to as “the alleged new debt” was notified to the Official Assignee in early 2008 and has previously been before the Court (in particular on 23 April 2008).

[2]       We propose to deal with the application without a hearing (see r 53(6) of the Court of Appeal (Civil) Rules 2005).

[3]       The Supreme Court has declined Mr Erwood’s application for leave to appeal against our 17 February judgment which it regarded as “clearly correct”. This provides an inauspicious context for Mr Erwood’s current application, which in any event, is misconceived.

[4]       As is probably apparent, we have reservations whether the annulment order should be sealed and in particular, we think that creditors who are not covered by it may wish to consider their options in relation to it (including whether they should apply for it to be recalled).  But the merits of the annulment and in particular whether it should stand or not are not issues which are before this Court.

[5]       As to the suggestion that “the alleged new debt” was before the Official Assignee early last year and considered by this Court in April last year, we rather think that Mr Erwood has misunderstood what was said at the hearing on 17 February and in our judgment delivered on the same day.  As we understand it, the two new alleged debts we referred to (being debts apparently owed to the Ministry of Social Development and the Wellington Regional Legal Aid Unit) were not known about in early 2008.  We note that a report from the Official Assignee issued in February 2008 states that Mrs Maxted and Ms Harley are “the only creditors known to the Official Assignee”.  Nor does it appear that the two new alleged debts were discussed at the hearing on 23 April 2008, which resulted in the judgment of 30 May 2008.

[6]       In any event, we are not disposed to recall the orders made in our judgment of 17 February 2009.  The application to recall is accordingly dismissed.

Solicitors:
Russell McVeagh, Wellington for Mrs Harley and First Respondents
Gibson Sheat, Wellington for Second Respondent