Erwood v Official Assignee - [2015] NZCA 478

IN THE COURT OF APPEAL OF NEW ZEALAND

CA168/2015
[2015] NZCA 478

BETWEEN	ROBERT ERWOOD Appellant
AND	THE OFFICIAL ASSIGNEE Respondent

Counsel:

D M Lester as amicus (to assist Appellant)
C R Vinnell for Respondent

Judgment:

(On the papers)

8 October 2015 at 2.30 pm

JUDGMENT OF WILD J:
APPLICATION TO REVIEW REGISTRAR’S DECISION NOT TO DISPENSE WITH SECURITY FOR COSTS

The application to review the Registrar’s decision not to dispense with security for the costs of this appeal is dismissed.

____________________________________________________________________

REASONS

On 3 July 2015 Mr Erwood applied, pursuant to r 7(2) of the Court of Appeal (Civil) Rules 2005 to review the decision of this Court’s Registrar declining to dispense with security for the costs of this appeal.
That application was made by Mr Lester on behalf of Mr Erwood. Mr Lester was appointed amicus by this Court on 24 April, to assist Mr Erwood with this appeal.
The Registrar’s decision is contained in a letter dated 18 June 2015 addressed to Mr Erwood. In that decision the Registrar records that she wrote to Mr Erwood on 28 April asking for more information in support of his application to dispense with security. She states that, in response, Mr Erwood advised that there is currently $783,255.51 in his account with ASB Bank Ltd (ASB) but that those funds were frozen. The Registrar’s decision records that she sought the following further information from Mr Erwood:
I require from you full details of who has taken the steps to freeze your accounts and on what grounds. Also details from the bank of under what circumstances you can access those funds. Evidence from you that you have sought permission from the bank for release of the funds to meet the requirement for security for costs, and if there are issues that you need to resolve to access those funds what steps you have taken to do that.
Later in her decision, the Registrar said this:
Is the appellant impecunious?
You have provided an e-mail from ASB Bank confirming that your funds are frozen and there are no circumstances at this time that you can access these funds. However, despite being given two opportunities to clarify your financial position, you have not provided details of who has taken the steps to freeze your accounts and on what grounds. Also, whether there are steps you can take to resolve the issues and, if so, whether you have taken the appropriate steps or are refusing to do so. Without this information I cannot make an informed decision as to the true state of your financial position.
The fact that you have been granted a waiver of fees is not conclusive evidence of impecuniosity for the purposes of dispensing with security for costs, as security for costs is an inter parties issue. In any event, impecuniousity alone does not warrant dispensation from the requirement to pay security for costs.
In his application for review, Mr Erwood submits the Registrar’s approach is in error. The reasons…

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.

Keep reading for free

Create a free CaseChat account to read Erwood v Official Assignee and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NZCA 478
Decision Date: 8 October 2015 at 2.30 pm

CaseChat Overview and Summary

In the case of Erwood v Official Assignee, the Court of Appeal of New Zealand considered an application by Mr Erwood to review the Registrar's decision not to dispense with security for the costs of his appeal against the Official Assignee. The Court dismissed Mr Erwood’s application. The matter revolved around Mr Erwood’s financial capacity to pay the security for costs required to proceed with his appeal. The legal issues centered on whether Mr Erwood could demonstrate impecuniosity or another compelling reason to be exempt from the requirement to provide security for costs.

The court examined Mr Erwood's financial situation, including the freezing of his bank accounts, and the reasons behind the freezing. It was noted that Mr Erwood had significant funds on deposit, which were frozen, yet he had not provided full details about the circumstances leading to the freezing or any efforts to resolve the issue. The court also considered medical reports suggesting Mr Erwood’s diminished capacity to manage his financial affairs. Despite this, the court found that Mr Erwood had not taken the appropriate legal steps to address his financial situation, such as applying to the Family Court under the Protection of Personal and Property Rights Act 1988.

The Court of Appeal upheld the Registrar's decision, emphasizing that Mr Erwood had not sufficiently demonstrated his impecuniosity or any other grounds for dispensing with the security for costs. It was held that if Mr Erwood could not manage his financial affairs, he should seek an order from the Family Court appointing a suitable person to manage his financial affairs. The court concluded that it would not accept a "halfway house" approach where Mr Erwood claimed he had no access to his funds without taking the necessary legal steps to resolve the issue. The Court ordered Mr Erwood to pay the security for costs by a specified date or risk having his appeal struck out.

The court's decision highlights the importance of demonstrating a genuine inability to pay costs or taking appropriate legal measures to address financial incapacity. The Court also expressed gratitude to the amicus appointed to assist Mr Erwood and directed the Registrar to inform the bank manager of the court's views on the bank's handling of Mr Erwood’s accounts.

Orders