The Queen v Potae [2007] NZCA 539 (26 November 2007)

Last Updated: 7 December 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA485/07

[2007] NZCA 529

BETWEEN ROBERT JOHN ERWOOD
Applicant

AND RAYLEE PATRICIA HARLEY
Respondent

CA567/07

AND BETWEEN ROBERT JOHN ERWOOD
Applicant

AND JANET 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

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

100. Payment 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 Ms Harley any further sums. Secondly, Mr Erwood applied to this Court (CA480/07) to stay the orders of Ronald Young J until his appeal has been dealt with.

[6] The appeal in CA567/07 relates to Mr Erwood’s unsuccessful application to set aside a bankruptcy notice. The notice claims an amount of $27,401.97 in relation to three costs judgments. The costs awards arose following the failure of his claim against the respondents to this appeal in the High Court (HC NEL CIV 2003 442 363 26 May 2006) and after subsequent unsuccessful appeals to this Court ([2007] NZCA 161) and then the Supreme Court ([2007] NZSC 38).

The application to the Registrar under r 35

[7] In terms of CA485/07, the application to have security dispensed with was filed on 17 October 2007. The Registrar, in a letter dated 29 October 2007, informed Mr Erwood that the application was out of time. Rule 35(7)(a) provides that an application to have security dispensed with must be made and served within 20 working days after the notice of appeal was filed in the Registry. The notice of appeal was filed on 12 September 2007. The Registrar accordingly refused the application to have security dispensed with.
[8] Mr Erwood wrote and asked the Registrar to reconsider this decision. In a letter dated 5 November 2007, the Registrar said there was no jurisdiction to reconsider but did look at the matter again. The Registrar took the same view as in the 29 October letter pointing out that there was no right of withdrawal of an appeal to file a replacement appeal. The Registrar said an appeal could be abandoned but there was then no further opportunity to file again.
[9] The Registrar did however go on to consider the merits of the matter and said:

I would refuse to dispense with security under rule 35(6)(c) as I do not consider the reason of impecuniosity in this instance a sufficient cause to grant such an application. The purpose of security is to protect the Respondent should you not be successful and I am very mindful of the number of judgments that have been given against you in the past with costs outstanding.

[10] The application to dispense with security in the matter of CA567/07 was refused for the same reasons.

Applications for review under r 7(2)

[11] Mr Erwood’s application for review was filed on 6 November 2007 and referred to me on 13 November. It is not clear from the application whether it relates to CA567/07 as well as to CA485/07 but I have treated it as applying to both.
[12] The grounds for the application for review (expanded upon in a further note filed on 19 November) appear to be as follows:

(a) The application for dispensation in relation to CA485/07 was not out of time because the notice of appeal had not been served;

(b) The respondent in CA485/07 had been paid her previous costs and so security was not necessary; and
(c) The importance of the issues to Mr Erwood particularly given his circumstances were such that any bar (in the form of security for costs) to the appeals proceeding should be lifted. Those circumstances include what Mr Erwood describes as inability to access a lawyer and the effect of the appointment of a litigation guardian in earlier proceedings.

Discussion

[13] Turning first to CA485/07. The Registrar is right that the time for filing the application for dispensation of security for costs runs from the date the appeal is filed in this court. I doubt there is power to file a “replacement” appeal. But, in any event, the Registrar has considered the merits of Mr Erwood’s application and there is no basis for me to interfere with her assessment of the matter. (The Registrar appears to have accepted Mr Erwood’s claim of impecuniosity: cf Ronald Young J’s judgment at [2].)
[14] This Court in the stay application had this to say about the possible merits of the appeal:

[13] Consideration of the balance of convenience inevitably invites some consideration of whether Mr Erwood has any respectable chance of success on the merits of the appeal. In this case, there was an agreed settlement – in writing – which was subsequently confirmed by Frater J in an Order of the High Court. The only argument open to Mr Erwood is to contend that the Order of the Court does not mean what it says. Ronald Young J gave careful attention to that matter. His construction of the relevant order is set out at [25] of his judgment. It is not necessary for us to recite the Judge’s views on the construction of the agreement here. It suffices to say that Mr Erwood would appear to have very grave hurdles in contending for the interpretation he now says should be placed on the Court order.

[15] Against that background and given the fact there are obviously costs awards outstanding in other proceedings the Registrar was entitled to conclude there was no compelling case to dispense with security.
[16] In terms of CA567/07, again, the merits of the appeal do not appear to be strong. The bankruptcy notice as I have said relates to three costs judgments. Mr Erwood challenged the fact that the bankruptcy notice referred to three costs judgments (rather than there being three notices), and the place of filing the notice. He also said he had a counterclaim and that he required a litigation guardian. These matters were all dealt with by the Associate Judge in a comprehensive way.
[17] I agree with the Registrar that there was no compelling case to dispense with security.
[18] Finally, I note that it does not appear that written submissions from the respondents were received on the question of security although I understand that the relevant correspondence has been copied to the parties. In terms of CA485/07 there is an application for an order striking out the appeal for non-payment of security.

Result

[19] The application to review the decisions of the Registrar declining to dispense with security for costs is dismissed. The Registrar allowed 20 working days for payment of security and I adopt a similar period.
[20] Payment of security of $4,740 in relation to CA485/07 must be made on or before 14 December 2007.
[21] Payment of security of $4,740 in relation to CA567/07 must be made on or before 14 December 2007

Solicitors:
Russell McVeagh, Wellington for Respondent in CA485/07
McFadden McMeeken Phillips, Nelson for Respondents in CA567/07