Erwood v Official Assignee

[2013] NZHC 3046

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-485-2128 [2013] NZHC 3046

UNDER THE	Insolvency Act 1967
IN THE MATTER OF	applications pursuant to s 85 and s 119 of the Insolvency Act 1967
BETWEEN	ROBERT JOHN ERWOOD Applicant
AND	THE OFFICIAL ASSIGNEE Respondent

Hearing:	On the papers
Counsel:	Applicant in person
Judgment:	18 November 2013

JUDGMENT OF WILLIAMS J

[1]      MacKenzie J issued a judgment on 13 August 2013 annulling the applicant’s

bankruptcy effective on the date of judgment.

[2]      On 8 October 2013, Mr Erwood filed a document entitled “Appeal against the OA decision to take costs (under s 86 of the insolvency Act 1967)”.  The grounds of appeal make it clear that this is an appeal against the judgment of MacKenzie J – particularly the effect of paragraph [35] in which the Judge rejected the Official Assignee’s application for an order for payment of fees under s 119(7)(a) preferring to leave the OA to invoke the priority conferred by s 104(1)(a) in respect of both fees and remuneration.

[3]      Mr Erwood now makes application for appointment of amicus to assist the court.    Mr  Erwood  suffers  from  chronic  schizophrenia  and  his  bankruptcy  has

occupied the courts at all levels for some years.

ROBERT JOHN ERWOOD v THE OFFICIAL ASSIGNEE [2013] NZHC 3046 [18 November 2013]

[4]      MacKenzie  J  made  two  points  in  respect  of  the  (inevitable)  prospect  of further litigation in this matter.  He said:1

The first is that, in any further litigation in which Mr Erwood is involved, consideration should be given to whether a litigation guardian will be necessary.    There  is  considerable  force  in  Ms  Levy’s  submission  that Mr Erwood’s  litigious  history  demonstrates  a  clear  inability  to  conduct litigation in a rational and discerning way.  The material available, including that  relating  to  his  mental  capacity,  indicates  clearly  that  consideration should  be  given  to  whether  Mr  Erwood  is  an  ‘incapacitated  person’ as defined in r 4.29 of the High Court Rules in any future litigation in which he may seek to become involved.

The second point is that, if Mr Erwood does become involved in any future litigation relating to his bankruptcy, the fact that he is no longer an undischarged bankrupt will be relevant to the conduct of that litigation.  The Court has in the past appointed counsel as amicus curiae, who have provided assistance to Mr Erwood as well as to the Court.  Mr Erwood cannot expect that such steps would be taken in the future.   If Mr Erwood requires the assistance of counsel, he should anticipate that the only assistance available to him from counsel will be from counsel instructed by him.

[5]      There are a number of difficulties with this appeal, not least of them being that Mr Erwood is appealing against a point on which he won.  This rather confirms MacKenzie J’s reflection of Ms Levy’s concerns about Mr Erwood’s ability to make rational decisions in relation to litigation he is conducting.   Whether a litigation guardian may be required is not a matter I propose to address at this point.

[6]      In light of the extraordinarily long history of this litigation, I am minded to follow the advice MacKenzie J gives in his second point.   Mr Erwood is now no longer bankrupt, and he will be required to fund his own litigation.

[7]      The application to appoint amicus is dismissed.

Williams J

1      At [41]–[42].