R v Potae - [2007] NZCA 539

IN THE COURT OF APPEAL OF NEW ZEALAND
CA485/07
[2007] NZCA 529

BETWEENROBERT JOHN ERWOOD

Applicant

ANDRAYLEE PATRICIA HARLEY

Respondent

CA567/07
AND BETWEEN ROBERT JOHN ERWOOD

Applicant

ANDJANET MAXTED AND JANET MAXTED AND ALEXANDER JAMES JEREMY GLASGOW AS TRUSTEES OF THE ESTATE OF EDWARD ERWOOD OF NELSON

Respondent

Counsel:Applicant in person

C R Carruthers QC for Respondent in CA485/07
G M Downing for Respondents in CA567/07

Judgment:22 November 2007 at 10 am

JUDGMENT OF ELLEN FRANCE J

AThe application to review the Registrar’s decisions declining to dispense with security for costs is dismissed.
BPayment of security of $4,740 in relation to CA485/07 must be made on or before 14 December 2007.
CPayment of security of $4,740 in relation to CA567/07 must be made on or before 14 December 2007.

REASONS
Introduction
[1]       This is an application for review of the Registrar’s decisions on applications to dispense with security for costs in relation to two appeals to this Court by the applicant, Mr Erwood.
[2]       The first appeal (CA485/07) is against the judgment of Ronald Young J in Erwood v Harley HC WN CIV 2000-485-27 12 September 2007.
[3]       The second is against the judgment of Associate Judge Christiansen in Maxted v Erwood HC NEL CIV 2007-442-000331 27 September 2007.
[4]       I have considered the application under r 7(2) of the Court of Appeal (Civil) Rules 2005 and s 61A(3) of the Judicature Act 1908.
Background
[5]       The background to the appeal in CA485/07 is summarised in this Court’s decision on Mr Erwood’s application for a stay of execution pending that appeal (Erwood v Harley [2007] NZCA 415) as follows:
[2]       Mr Erwood and Ms Harley have been involved in protracted litigation. Ultimately Ms Harley was successful in that litigation, and costs totalling $121,236.64 were awarded to her.
[3]       Ms Harley attempted to execute on the judgment for that sum, by issuing writs of sale. By agreement a sum of $121,236.64 was then paid to the Registrar of the High Court at Auckland pending the determination of an application by Mr Erwood to set the writs of sale aside in their entirety.
[4]       That application was determined by Ronald Young J on 12 September 2007 in CIV 2000-485-27 Wellington Registry. In the result, the Judge held:
(a)       The application challenging the writs of sale is refused.
(b)I refuse the application for a stay of payment of the sum held by the Registrar of the High Court at Auckland and order its immediate distribution in terms of the execution process.

[5] Mr Erwood then took two steps. First, he filed a Notice of Appeal (CA485/07) challenging the judgment of Ronald Young J, both on certain process grounds and as a matter of substance. As to the latter, it appears to be his contention that the settlement on which the costs judgments against him rests, was a full and final settlement and leaves nothing to be paid by him. That is, it is his contention that he does not now owe…

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 R v Potae

Details

AGLC: R v Potae [2007] NZCA 539
Case: [2007] NZCA 539
Decision Date: 22 November 2007

CaseChat Overview and Summary

In the case of R v Potae, the Court of Appeal of New Zealand dealt with an application by Mr Erwood for a review of the Registrar's decisions declining to dispense with security for costs in relation to two appeals. The first appeal (CA485/07) was against the judgment of Ronald Young J in Erwood v Harley, and the second (CA567/07) was against the judgment of Associate Judge Christiansen in Maxted v Erwood. The applicant argued that the application for dispensation in relation to CA485/07 was not out of time because the notice of appeal had not been served, the respondent in CA485/07 had been paid her previous costs, and the importance of the issues to Mr Erwood, given his circumstances, warranted lifting any bar to the appeals proceeding.

The Court found that the Registrar was correct in asserting that the time for filing the application for dispensation of security for costs runs from the date the appeal is filed in the Court. Furthermore, there was no basis for interfering with the Registrar's assessment of the matter, as she had considered the merits of Mr Erwood's application. The Court agreed with the Registrar that there was no compelling case to dispense with security for costs in either appeal. The application to review the decisions of the Registrar declining to dispense with security for costs was dismissed. Payment of security of $4,740 in relation to CA485/07 and CA567/07 must be made on or before 14 December 2007.

Orders