Erwood v Maxted and anor [2007] NZCA 161 (30 April 2007)

Last Updated: 22 May 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA126/06
[2007] NZCA 161

BETWEEN ROBERT ERWOOD
Appellant

AND JANET MAXTED
First Respondent

AND JANET MAXTED AND ALEXANDER JAMES JEREMY GLASGOW AS TRUSTEES OF THE ESTATE OF EDWARD ERWOOD
Second Respondents

Hearing: 16 April 2007

Court: O'Regan, Robertson and Wilson JJ

Counsel: J J McGuire for Appellant
G M Downing for Respondents

Judgment: 30 April 2007 at 11 am

JUDGMENT OF THE COURT

A The application for extension of time for applying for the allocation of a hearing date and filing the case on appeal is dismissed.
B The appellant must pay costs of $1,500 plus usual disbursements to the respondents.

REASONS OF THE COURT

(Given by O’Regan J)

The appellant’s appeal

[1]	This is an appeal against a judgment of Wild J, Erwood v Maxted & Ors HC NEL CIV-2003-442-363 26 May 2006. The Judge dismissed the appellant’s claim that his brother’s estate, administered by the second respondents, held a house subject to a trust in the appellant’s favour.
[2]	Wild J ordered the appellant to pay costs to the first respondent (the appellant’s sister, Janet Maxted), and the second respondents (Ms Maxted and the other trustee of the appellant’s brother’s estate, Mr Glasgow).

Issue

[3]

The deadline by which the appellant was required under the Court of Appeal (Civil) Rules 2005 (the Rules) to file the case on appeal and apply for a fixture has expired. The appellant seeks an extension of time. The respondents oppose this. The issue before us is whether an extension should be granted.

Background

[4]

Wild J refused to adjourn the hearing of the appellant’s case in the High Court and it proceeded in the appellant’s absence, though with the assistance of an amicus. In doing so he referred to an observation by Ronald Young J in Glasgow Harley v Erwood HC NEL CP 22/98 30 May 2002 that there was evidence that the appellant was a mentally fragile man who has used his mental illness at times in a highly manipulative way to advantage himself in litigation.

[5]

The appellant filed an appeal to this Court on 22 June 2006. He sought a stay of execution of Wild J’s judgment pending his application for legal aid to facilitate the appeal. On 16 August 2006, Ronald Young J granted a stay on the basis that if one were not granted, the estate would sell the house, thereby rendering the appellant’s appeal rights nugatory. The stay was conditional as follows:

(a) If the appellant were successful in obtaining legal aid, the Court would not order the payment of costs incurred before Wild J. If he were unsuccessful, the respondents would be entitled to security for costs ordered in the High Court and the appellant would be required to pay to the Registrar of the High Court at Nelson the full amount of the costs ordered by Wild J within seven days of the final refusal by legal aid authorities;
(b) The appellant was required to pursue his appeal expeditiously and to comply with the Rules. A failure to do so would invite reconsideration of the stay of execution.

[6]

On 15 December 2006 the Legal Aid Review Panel confirmed the Legal Service Agency’s decision to decline to grant legal aid to the appellant. On 7 January 2007 the appellant filed a notice of appeal in the High Court in respect of the Panel’s decision. At that stage the appellant was out of time. In his notice of appeal he sought an extension of time. The Agency informed counsel for the respondents of the Panel’s decision on 25 January 2007.

How matters stand

[7]	The appellant’s application is made under r 43(2) of the Rules. Rule 43 provides:

43 Appeal abandoned if not pursued

(1) An appeal is to be treated as having been abandoned if the appellant does not apply for the allocation of a hearing date and file the case on appeal within 6 months after the appeal is brought.

(2) The Court, on application, may--

(a) grant an extension of the period referred to in subclause (1); and

(b) grant 1 or more further extensions of any extended period.

(3) An application for the grant of an extension may be made before the expiry of the period to which the application relates or within 3 months after that expiry; but no extension may be granted on an application that is made later than 3 months after that expiry.

(4) This rule overrides rules 5(2) and 6.

[8]

Given the appeal was filed on 22 June 2006, the expiry of the period referred to in r 43(1) occurred on 22 December 2006. This means the application for the grant of an extension needed to be made by 22 March 2007. The appellant’s amended application for the grant of an extension was received on 21 December 2006. It sought an extension of three months (ie until 21 March 2007). That date has now passed. We were told that the appellant now seeks an extension until after the final determination of the appellant’s High Court appeal against the determination of the Panel (presumably on the assumption that the High Court will agree to hear it). No hearing date for that appeal has been set. Counsel for the appellant told us that there is to be a callover on 22 May 2007.

The appellant’s case

[9]	The appellant relied on the delays in exhausting all possible means of obtaining legal aid as the reason for his substantial delay in this case. Mr McGuire appeared for the appellant in this Court, though he asked us to note that he has agreed to act for the appellant in relation to the appeal to this Court only if legal aid is granted (ie if the High Court gives an extension of time to appeal against the decision of the Panel upholding the refusal of legal aid and the appeal is allowed). On the appellant’s behalf, Mr McGuire argued the delay in this case is merely a "collateral effect" of the legal aid appeal procedure. He submitted that there was a prima facie case on the merits. Counsel undertook to prosecute the appeal expeditiously in the event that legal aid is granted,.
[10]	The appellant also pointed to his deteriorating mental and physical health, the death of his sister of which he was not immediately informed, and the vandalising of his property, as further reasons for delay.
[11]	An extension of time is sought on the condition that, if the High Court allows the appeal against the Panel’s determination (assuming it gives leave for the appeal to be brought at all), the appellant will seek the earliest hearing date possible for the substantive appeal in this Court.

The respondents’ opposition

[12]	Counsel for the respondents, Mr Downing, submitted that:

(a) The appellant’s continual appealing of decisions as to his legal aid status, and failing to take steps in the present appeal until the legal aid appeals are exhausted, amounted to an abuse of process of this Court’s procedure;
(b) The appellant had a propensity to seek adjournments at every step, and this meant we could have little confidence that the appellant’s appeal to the High Court against the Panel’s decision will be prosecuted timeously;
(c) Granting an extension conditional on the terms sought by the appellant could conceivably lead to a delay of over a year;
(d) The appellant’s appeal against the Panel’s decision was probably meritless in any event;
(e) The appellant had substantial savings and thus did not require, and was not entitled to, legal aid;
(f) The appellant was an obsessive litigant who was bogged down with the extensive litigation he has commenced;
(g) The need for a finality in litigation, and the Supreme Court’s stated desire to take a tough stance on abuses of process (Chamberlains v Lai [2006] NZSC 70), supported the contention that the appellant should not be allowed to further prolong this litigation;
(h) The respondents were suffering ongoing prejudice from the delay, because the litigation was preventing them from finalising the estate and/or selling the house. The house could not be rented because of the appellant’s conduct but rates and other outgoings had to be paid.

[13]

Mr Downing drew to our attention the affidavit filed in support of the opposition to the extension. The affidavit was sworn by Mr Glasgow, one of the second respondents. In that affidavit, Mr Glasgow states that he has, in his capacity as a trustee of the appellant’s brother’s estate, become aware that the appellant has substantial savings and investments of at least $632,000. These are apparently held by the relevant financial institutions under the name "Robert Woods", which, he says, is a well known pseudonym used by the appellant, as noted by Ronald Young J in his judgment in Glasgow Harley v Erwood HC NEL CP 22/98 21 February 2003. Mr Erwood made an affirmation on 27 March 2007 dealing with a number of matters raised in the notice of opposition and Mr Glasgow’s affidavit, but did not contest the above statements about his wealth.

Our approach

[14]	As noted earlier, the application is made in terms of r 43(2) of the Rules.
[15]	This Court noted in the leading decision on the predecessor to the current r 43 (r 10 of the Court of Appeal (Civil) Rules 2001), that where the Court was satisfied that there was a sound reason for allowing further time and that the appeal was not devoid of merit, the Court would grant the indulgence of an extension of time as a matter of normal practice: Airwork (NZ) Ltd v Vertical Flight Management Ltd [1999] 1 NZLR 29 at 31. However, the extension would normally be only for a limited period.
[16]	The fact that an extension is an "indulgence" was emphasised by this Court in a later decision, Scenic Developments Ltd v Kelmarna Properties Ltd [2004] NZCA 271; (2004) 17 PRNZ 489. In that decision, the Court said at [29]:

First, on a leave application, what is being sought is an indulgence... We are required to have regard to the whole of the circumstances of the case... The appellants have throughout the unfortunate history of this litigation continually failed to comply with timetabling orders and directions; and have had counsel in the proceedings in and out of them continually, with a disruptive and delaying effect on the proceedings. Their conduct disentitles them to an indulgence.

[17]

We see this case as having many of the same features as the Scenic Developments case. The judgment of Wild J chronicles the repeated applications for adjournment and other disruptive tactics of the appellant, which ultimately led to the High Court hearing the proceeding in the appellant’s absence. While we cannot judge the possibility of success of the appellant’s High Court appeal against the Panel’s decision, it is notable that he has not contested the evidence before us of his considerable financial assets which would disentitle him to legal aid. And, even in the absence of an award of legal aid, there is no reason why he could not have filed the case on appeal and applied for a fixture so as not to cause any unnecessary delay in the conduct of the appeal in this Court.

[18]

Looking at the matter in the round, we are not satisfied that there are good grounds for the granting of an extension of time in this case. Quite apart from the disentitling behaviour of the appellant, we note the continuing prejudice to the respondents of any further delays in the progress of this litigation. It is notable that the stay granted by Ronald Young J on 16 August 2006 was conditional on the appellant pursuing his appeal in this Court expeditiously and in compliance with the Rules. He has failed to do that.

Result

[19]	We dismiss the application and award costs to the respondents. The appellant’s appeal to this Court is deemed to be abandoned under r 43(1) of the Rules.

Solicitors:
Jeremy McGuire, Wellington for Appellant
McFadden McMeeken Phillips, Nelson for Respondents