AThe application for an extension of time to apply for the allocation of a hearing date and file a case on appeal is declined.
BThe applicant is ordered to pay costs to the respondent for a standard application on a band A basis, together with usual disbursements.

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REASONS OF THE COURT

(Given by French J)

On 30 March 2015 Mr Erwood filed a notice of appeal against a judgment of Gendall J delivered in the High Court at Christchurch.[1] In his judgment, Gendall J upheld the decision of the Official Assignee (the Assignee) to take various costs and expenses incurred in Mr Erwood’s bankruptcy.
[1]Erwood v Official Assignee [2015] NZHC 390.
Under r 43(1) of the Court of Appeal (Civil) Rules 2005 an appeal is to be treated as having been abandoned if the appellant does not apply for the allocation of a hearing date and file the case on appeal within three months of the appeal being brought. This provision is subject to r 43(2), which empowers the Court on application to grant an extension of time.
In the case of this appeal, the three month period expired on 30 June 2015. On 26 June 2015 Mr Lester, who had been appointed by the Court in April 2015 as counsel to assist Mr Erwood, filed an application under r 43(2), seeking an extension of time for the preparation of the case on appeal until 6 August 2015. On 4 August 2015 Mr Lester sought a further extension of two weeks from the granting of any extension.
The application for an extension of time is opposed by the Assignee.
However, the parties agreed the application could be dealt with on the papers.
It was also common ground that in determining whether to grant an extension of time, the Court should have particular regard to the reason for the delay and the merits of the appeal, as well as the principle that some latitude in compliance is permitted to litigants in person if overall justice is to be done.[2]

The reason why the appeal has not been prosecuted diligently

[2]Schmidt v Ebada Property Investments Ltd [2012] NZCA 452; Rabson v Gallagher [2011] NZCA 204 at [9]; Harris v Davies [2007] NZCA 358 at [8].

It appears the only step taken since 30 March 2015 in preparing the case on appeal has been the circulation of an index on 4 August 2015.
The explanations advanced for the delay are:
(a)There was a misunderstanding between Mr Lester and Mr Erwood. The latter assumed Mr Lester was attending to the preparation of the case on appeal. However, given his status as Court-appointed…

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 Official Assignee

Details

AGLC: Erwood v Official Assignee [2015] NZCA 620
Case: [2015] NZCA 620
Decision Date: 18 December 2015 at 11.00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand was asked to decide whether to grant an extension of time to Robert Erwood, who was appealing a judgment of Gendall J. The judgment had upheld the Official Assignee's decision to take various costs and expenses incurred in Mr Erwood's bankruptcy. The Official Assignee opposed the extension of time and the parties agreed the application could be dealt with on the papers.

The legal issues before the court were whether to grant an extension of time for Mr Erwood to file his case on appeal and, if so, whether the appeal had genuinely arguable grounds. The court had to consider the reason for the delay and the merits of the appeal, as well as the principle that some latitude in compliance was permitted to litigants in person if overall justice was to be done. The court also had to determine whether the grounds of appeal were genuinely arguable.

The court held that the reason for the delay was unsatisfactory and the explanations for it were not compelling. The court found that Mr Erwood had had extensive experience in the appellate jurisdiction and should have been familiar with the requirements of the relevant rule and the role of Court-appointed counsel. The court also found that the grounds of appeal were not genuinely arguable, as they were based on repetition and were variations on the theme that it was the Assignee who was responsible for prolonging the bankruptcy, not Mr Erwood. The court concluded that the appeal was no more than a continuation of Mr Erwood's relentless pursuit of litigation.

The court declined to grant an extension of time and held that the appeal was to be treated as abandoned. The court ordered Mr Erwood to pay costs to the Official Assignee for a standard application on a band A basis, together with usual disbursements.

Orders