Erwood v Official Assignee - [2015] NZHC 390

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-001755 [2015] NZHC 390

BETWEEN
ROBERT ERWOOD

Appellant

AND

THE OFFICIAL ASSIGNEE Respondent

Hearing:
29 September 2014

Further Submissions of Amicus dated 26 November 2014
Reply Submissions of Official Assignee filed 6 January 2015
Additional Reply Submissions of Amicus filed 24 February
2015

Appearances:

Appellant Appears in Person
C R Vinnell for Respondent
D M Lester as Amicus Appointed for Mr Erwood

Judgment:

6 March 2015

JUDGMENT OF GENDALL J

Introduction

[1] This is an appeal by the appellant Mr Robert Erwood (Mr Erwood) against decisions of the Official Assignee to take costs and expenses incurred in Mr Erwood’s bankruptcy pursuant to s 86 Insolvency Act 1967. The application is opposed by the Official Assignee.

[2] On 29 September 2014 when this matter was for hearing before me Mr Erwood, the appellant, appeared in person. Mr Lester appeared as amicus appointed by the Court and provided submissions on the appeal, effectively for Mr Erwood. Mr Vinnell appeared as counsel for the Official Assignee.

[3] At the conclusion of the one day allocated hearing for this application on

29 September 2014, it was indicated to the Court that a number of matters were still

ERWOOD v THE OFFICIAL ASSIGNEE [2015] NZHC 390 [6 March 2015]

outstanding. The first was a request by the Official Assignee to provide a short affidavit relating to issues over the Official Assignee’s communication with Mr Erwood throughout the bankruptcy. In particular the Official Assignee says this concerned rising levels of legal and other costs which were incurred by the Official Assignee, details of which it is claimed were discussed with Mr Erwood.

[4] A second matter related to additional submissions which Mr Lester, the amicus on behalf of Mr Erwood, wished to provide. These related to “further grounds of challenge” advanced by Mr Erwood only on 29 September 2014. The Official Assignee was then to have some time to provide supplementary submissions in reply to those submissions of Mr Lester.

[5]      Accordingly, following the hearing on 29 September 2014, I issued a minute to deal with these matters which allowed a total period of six weeks from
29 September 2014 for the filing and service of this additional material. [6]           Subsequently, the following events occurred:
(a)      On 8 October 2014 the Official Assignee filed in this Court the further affidavit of Mr Grant Edward Slevin (Mr Slevin), an employed solicitor with the Official Assignee’s office dated 6 October 2014.

(b) On 26 November 2014 Mr Erwood filed an affidavit dated

25 November 2014 in reply to Mr Slevin’s affidavit.

(c) On 26 November 2014 Mr Erwood himself purported to file in this

Court a document headed “Addendum to Affidavit” dated

26 November 2014 which seemed to include some additions and changes to his earlier affidavit dated 25 November 2014.

(d)Also on 26 November 2014, Mr Lester filed in this Court his further submissions arising from Mr Erwood’s further grounds of challenge in this matter.

(e) On 16…

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 390
Decision Date: 6 March 2015

CaseChat Overview and Summary

In Erwood v Official Assignee, the appellant, Robert Erwood, sought to appeal against the Official Assignee's decisions to deduct certain costs and expenses from his bankruptcy estate. The Official Assignee opposed the appeal, and the matter was heard by Gendall J. The court had to determine whether the Official Assignee had properly exercised her discretion in deducting the costs and expenses from Mr Erwood's estate. The legal issues included the appropriateness of the commission and external legal costs, as well as the reasonableness of other disbursements. Gendall J found that the Official Assignee had acted properly and in good faith in managing the bankruptcy, and dismissed Mr Erwood's appeal. The court held that the Official Assignee was entitled to deduct the commission and external legal costs from Mr Erwood's estate, as well as other disbursements. The Official Assignee was awarded costs on a category 2B basis, together with disbursements as fixed by the Registrar.

Orders