Erwood v Official Assignee [2015] NZCA 507 (29 October 2015)

Last Updated: 3 November 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA168/2015 [2015] NZCA 507
BETWEEN	ROBERT ERWOOD Appellant
AND	THE OFFICIAL ASSIGNEE First Respondent

Counsel:	Appellant in Person C R Vinnell for Respondent
Judgment: (On the papers)	29 October 2015 at 3.30 pm

JUDGMENT OF WILD J: APPLICATION TO RECALL JUDGMENT AND EXTEND TIME TO PAY SECURITY FOR COSTS

1. The appellant’s application for recall is dismissed.

2. The appellant’s application to extend time for the payment of security for costs is dismissed.

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REASONS

[1] The appellant’s memorandums filed on 20 and 27 October were referred to me on 28 October.
[2] I interpret these memorandums as seeking:

• (a) recall of my judgment of 8 October, on review of the Registrar’s decision not to dispense with security for the costs of this appeal;^[1] and
• (b) an extension, “by 1 or 2 weeks”, of the 30 October 2015 deadline for the payment of security for costs, fixed in that judgment.

[3] I decline to recall my judgment. None of the three grounds for recall identified by Wild CJ in Horowhenua County v Nash (No 2),^[2] and affirmed by this Court in Erwood v Maxted,^[3] is made out here.
[4] Nothing the appellant says in his recall application alters the position as I set it out in my judgment:

• the appellant has $783,255.51 in his account with the ASB Bank Ltd (that figure was accurate as of April this year, and presumably will have increased since then with interest accruing);
• if, as the appellant asserts, he is unable to withdraw from the ASB the $5,880 he needs to pay into Court as security for the costs of this appeal, then he should apply to the Family Court to appoint a suitable person to manage his money, and perhaps to look after his financial affairs generally.

[5] I also decline to extend the 30 October deadline for the payment of security for costs. In his 27 October memorandum the appellant states:

I have been unable to find a manager for my moneys, to have a manager under the PPPR application.

[6] In [11] of my judgment, I spelt out what Mr Erwood needed to do. He has not done it. I may be wrong, but I think that is probably because he does not want to have anyone else managing his money. If he had applied to the Family Court as I suggested, then the Family Court would have no difficulty in selecting a suitable person to appoint as manager. And that person could readily arrange payment of the required security for costs.
[7] In the result, I decline to recall my judgment and I decline to extend the 30 October 2015 deadline for the payment for security for the costs of this appeal.
[8] Accordingly, the appellant needs URGENTLY to take the necessary steps to pay the security for the costs of this appeal or he will inevitably face an application by the Official Assignee under r 37(1) for an order striking out the appeal.

Solicitors:
Anthony Harper, Christchurch for Respondent

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^[1] Erwood v The Official Assignee [2015] NZCA 478.

^[2] Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633 (SC).

^[3] Erwood v Maxted [2010] NZCA 93 at [3]–[5].