Robert Erwood v The Official Assignee - [2016] NZSC 54

IN THE SUPREME COURT OF NEW ZEALAND

SC 13/2016
[2016] NZSC 54

BETWEEN	ROBERT ERWOOD Applicant
AND	THE OFFICIAL ASSIGNEE Respondent

Court:	Elias CJ, William Young and OʼRegan JJ
Counsel:	Applicant in person C R Vinnell and R G Smedley for Respondent D M Lester as Amicus Curiae
Judgment:	16 May 2016

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant’s bankruptcy was annulled by Mackenzie J on 23 July 2013 on the basis that all creditors had been paid (see s 119(1)(b) of the Insolvency Act 1967).[1] The order was made on the application of the Official Assignee who also sought an order under s 119(7) as to a fee by way of remuneration. The Judge refused to make such an order, essentially on the basis that there were associated disputes which could not be practically resolved in the context of the annulment application.[2] The Judge also indicated that the Official Assignee had rights under s 104(1)(a) in relation to the amounts claimed and any decision made by the Official Assignee under that subsection could be the subject of appeal under s 86.[3] Acting on this indication, the Official Assignee deducted a total of $181,313.56 for commission, costs and disbursements. The applicant challenged this decision by way of appeal under s 86. This challenge was dismissed by Gendall J.[4]
[1]Official Assignee in Bankruptcy of the Property of Robert John Erwood v Erwood [2013] NZHC 1827.
[2]At [35].
[3]At [40].
[4]Erwood v Official Assignee [2015] NZHC 390.
The applicant then appealed against the judgment of Gendall J.[5] This appeal ran into difficulties in two respects. In the first place no significant progress was made in respect of the preparation of a case on appeal.[6] Secondly, and contributing to this lack of progress, was a dispute as to security for costs,[7] The applicant is not impecunious and there was no sensible reason for him to seek a dispensation from the requirement to pay security for costs. He was also, in the view of Wild J, non-co-operative to the point of being obstructive in relation to securing the release of funds from his bank account so as to provide security. In the end the time limit under r 43 of the Court of Appeal (Civil) Rules 2005 for the preparation of a case on appeal passed and the appeal was deemed to be abandoned.[8] An application for an extension of time was, however, made under r 43(2). This application was dismissed by the Court of Appeal and the applicant now seeks leave to appeal against that decision.[9]
[5]Erwood v Official Assignee [2015] NZCA 620 (French, Miller and Kós JJ) [CA Judgment].
[6]At [2]–[3].
[7]See Erwood v Official Assignee [2015] NZCA 478 (Wild J) at [10](b), [10](c) and [11]; and Erwood v Official Assignee [2015] NZCA 507 (Wild J).
[8]CA Judgment, above n 5, at [3].
[9]CA Judgment, above n 5, at [40]–[41].
In issue, therefore, is a challenge to a…

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: [2016] NZSC 54
Decision Date: 16 May 2016

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Robert Erwood, the applicant, sought leave to appeal against the Court of Appeal's decision to decline an extension of time to file a case on appeal. The Official Assignee, the respondent, opposed the application. The Court of Appeal had previously dismissed the applicant's appeal against the High Court's decision to deny the Official Assignee's claim for remuneration, costs, and disbursements following the annulment of the applicant's bankruptcy. The applicant argued that the annulment of his bankruptcy under s 119(1)(b) of the Insolvency Act 1967 should have divested the Official Assignee of any rights to remuneration and reimbursement. The Court of Appeal had found the applicant's contention arguable but refused the extension of time, reasoning that if the contention were upheld, it would result in the recall or setting aside of the High Court's decision.

The Supreme Court held that the applicant's contention was incorrect and inconsistent with the provisions of s 119(7) of the Act. The Court considered the entitlements of the Official Assignee under s 104(1)(a) and found that the annulment did not divest the Official Assignee of any accrued rights to remuneration and reimbursement. The Supreme Court also found that the applicant's challenge to the merits of the Court of Appeal's decision did not present a point of public or general importance, nor did it appear to result in a miscarriage of justice. The Court concluded that the applicant's appeal was largely a problem of his own making, and an appeal to the Court of Appeal was unlikely to yield any practical benefit. Consequently, the Supreme Court dismissed the applicant's application for leave to appeal.

The final orders of the Supreme Court were as follows: The application for leave to appeal is dismissed. The applicant to pay the respondent's costs in the Supreme Court, fixed at $3,000.

Orders