Erwood v Minchin - [2025] NZSC 122

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 21/2025
[2025] NZSC 122

BETWEEN	ROBERT ERWOOD Applicant
AND	GRAEME EDWARD MINCHIN First Respondent
ANTHONY DAVID BANBROOK Second Respondent
GLASGOW HARLEY Third Respondent
RAYLEE PATRICIA HARLEY Fourth Respondent
JOHN ROBIN HOLMES Fifth Respondent

Court:	Glazebrook, Ellen France and Williams JJ
Counsel:	Applicant in person First Respondent in person No appearance for Second, Third, Fourth and Fifth Respondents
Judgment:	22 September 2025

JUDGMENT OF THE COURT

A The application for an extension of time is dismissed.

B Costs of $500 are awarded to the first respondent.

____________________________________________________________________

REASONS

Introduction

Mr Erwood applies for an extension of time to file an application for leave to appeal against a judgment of the Court of Appeal (2024 Court of Appeal judgment).[1] This judgment dealt with and dismissed applications in respect of three separate proceedings commenced by Mr Erwood.
[1]Erwood v Glasgow Harley [2024] NZCA 679 (Mallon, Cooke and Collins JJ) [2024 CAjudgment].
The notice of appeal was filed on 14 February 2025. It was out of time as it should have been filed by 10 February 2025, the judgment having been delivered on 18 December 2024. Mr Erwood says that he only received the 2024 Court of Appeal judgment by post in January.

Background

The procedural history is complicated and is set out in full in the 2024 Court of Appeal judgment.[2]
[2]At [2]–[16].
The genesis of the three proceedings at issue was an action brought by Mr Erwood against the New Zealand Law Society and an insurance company with regard to losses suffered by him because of the collapse of law firm Renshaw Edwards in 1992. Ms Harley, instructed by Glasgow Harley, represented Mr Erwood in these proceedings.
In 2002, Mr Erwood brought proceedings against Ms Harley and Glasgow Harley alleging negligence in the way in which they conducted his litigation. The High Court appointed a lawyer, Mr Minchin, to be Mr Erwood’s litigation guardian. Mr Minchin arranged for Mr Holmes, a solicitor, to instruct Mr Banbrook (now deceased) as counsel.
In October 2003, Mr Erwood was assessed by a psychiatrist who concluded he was not suffering from a mental disorder and that he no longer needed a litigation guardian. On 25 November 2003, Mr Banbrook and Mr Minchin attended a judicial settlement conference. Mr Banbrook did not notify the Court of the psychiatrist’s report. The proceedings settled. Consent orders were made by Frater J.
In January 2004, Mr Erwood commenced parallel proceedings to have the consent orders recalled and to have Mr Minchin removed as litigation guardian. On 15 December 2005, the High Court ruled that Mr Minchin’s appointment as litigation guardian continued until his appointment was terminated by the Court. As a consequence, Mr Minchin was authorised to settle Mr Erwood’s litigation, and there was no merit in Mr Erwood’s application to have the consent orders set aside.[3]
[3]Erwood v Glasgow Harley HC Auckland CIV-2002-404-1663, 15 December 2005 (Harrison J).
Mr Erwood then attempted…

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.

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Details

Case: [2025] NZSC 122
Decision Date: 22 September 2025

CaseChat Overview and Summary

The applicant, Robert Erwood, has applied for an extension of time to file an application for leave to appeal against a judgment of the Court of Appeal that dismissed his appeals in respect of three separate proceedings. The first respondent, Graeme Edward Minchin, who was appointed as Mr Erwood's litigation guardian in 2002, has filed submissions in opposition to the application. The other respondents have not appeared or filed submissions. The court was required to determine whether there were exceptional circumstances justifying an extension of time for Mr Erwood to file his application for leave to appeal against the Court of Appeal's judgment.

The court found that there was no jurisdiction to hear an appeal against the Court of Appeal's refusal to recall its 2008 recall decision, and in any event, the leave criteria were not met. Regarding the Court of Appeal's refusal to grant extensions of time to appeal against the two 2019 High Court decisions, the court found that there was no point of general or public importance arising, and there was no risk of a miscarriage of justice. The application for an extension of time was dismissed, and costs of $500 were awarded to the first respondent.

The Supreme Court dismissed Mr Erwood's application for an extension of time to file an application for leave to appeal against the Court of Appeal's judgment. The court found that there was no jurisdiction to hear an appeal against the Court of Appeal's refusal to recall its 2008 recall decision, and in any event, the leave criteria were not met. The court also found that there was no point of general or public importance arising in respect of the Court of Appeal's refusal to grant extensions of time to appeal against the two 2019 High Court decisions, and there was no risk of a miscarriage of justice. The application for an extension of time was dismissed, and costs of $500 were awarded to the first respondent.

Orders