Erwood v Official Assignee - [2015] NZHC 912

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-001755 [2015] NZHC 912

BETWEEN
ROBERT ERWOOD

Appellant

AND

THE OFFICIAL ASSIGNEE Respondent

Hearing: Dealt with on the papers

Judgment:

4 May 2015

JUDGMENT OF GENDALL J

[1] On 6 March 2015 I gave judgment on an appeal by the appellant (Mr Erwood) with respect to decisions of the Official Assignee to take costs and expenses incurred in Mr Erwood’s bankruptcy pursuant to s 86 Insolvency Act 1967.

[2] Around 30 March 2015 Mr Erwood filed a notice of appeal to the Court of

Appeal against that judgment.

[3] Then, on 17 April 2015, Mr Erwood filed in this Court a memorandum which effectively requests that I might recall my judgment of 6 March 2015.

[4] The grounds advanced for that recall, as best as I can ascertain, are that it is suggested in the judgment in question I “overlooked a critical issue recorded in the written and oral submissions made to [me] at trial. That the OA failed to make a decision to either accept or reject two creditor’s claims of WINZ and legal aid thus preventing Mr Erwood’s annulment.”

[5] The orders made in that 6 March 2015 judgment have not been sealed and in accordance with r 11.9 High Court Rules it is possible for me to recall the judgment
if it is appropriate to do so.

ERWOOD v OFFICIAL ASSIGNEE [2015] NZHC 912 [4 May 2015]

[6] The application for recall is opposed by the Official Assignee.

[7] McGechan on Procedure at HR 11.9.01 in dealing with recalling judgments under r 11.9 High Court Rules, states:

(2) Principles

(a) The leading statement in New Zealand remains that of Wild CJ in Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633:

“Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled — first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.”

That statement has been applied by the Supreme Court in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] NZLR 76 (SC) and by the Court of Appeal in several cases including Rainbow Corp v Ryde Holdings (1992) 5 PRNZ 493 (CA), Unison Networks Ltd v Commerce Commission [2007] NZCA 49 and Erwood v Glasgow Harley [2007] NZCA 88, (2007) 18 PRNZ 336. The underlying policy is to reconcile the broad ends of justice in relation to the particular case, and the desirability of finality in litigation at first instance: Ashe…

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: [2015] NZHC 912
Decision Date: 4 May 2015

CaseChat Overview and Summary

In Erwood v Official Assignee, the appellant, Mr Erwood, sought to have the High Court recall its earlier judgment made on 6 March 2015. The original judgment related to the Official Assignee's decisions to take costs and expenses incurred in Mr Erwood's bankruptcy. Mr Erwood argued that the judgment overlooked a critical issue concerning the Official Assignee's failure to make decisions on two creditor's claims, which allegedly prevented his annulment. The Official Assignee opposed the application for recall, asserting that the grounds provided by Mr Erwood did not warrant such action.

The legal issues before the court included whether the grounds provided by Mr Erwood were sufficient to warrant the recall of the judgment, and if they fell within the three specific grounds identified in Horowhenua County v Nash. The court had to determine if there had been any amendments to relevant statutes or regulations since the hearing, if there were any legislative provisions or authoritative decisions that counsel failed to bring to the court's attention, or if there was another special reason why justice required the judgment to be recalled.

The court concluded that the grounds raised by Mr Erwood did not fit any of the three grounds identified in Horowhenua County v Nash. The court found that the matters raised by Mr Erwood were either already subject to appeal or were unsupported. Given the strict application of the guidelines outlined in Horowhenua County v Nash, and the fact that Mr Erwood had already filed an appeal against the judgment, the court dismissed the application for recall. The court emphasized the importance of finality in litigation and the serious nature of recalling a judgment, which should only be done in well-identified situations.

Orders