Erwood v Official Assignee

[2015] NZHC 912

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-001755 [2015] NZHC 912

BETWEEN

ROBERT ERWOOD

Appellant

AND

THE OFFICIAL ASSIGNEE Respondent

Hearing:	Dealt with on the papers
Judgment:	4 May 2015

JUDGMENT OF GENDALL J

[1]      On  6  March  2015  I  gave  judgment  on  an  appeal  by  the  appellant (Mr Erwood) with respect to decisions of the Official Assignee to take costs and expenses incurred in Mr Erwood’s bankruptcy pursuant to s 86 Insolvency Act 1967.

[2]      Around 30 March 2015 Mr Erwood filed a notice of appeal to the Court of

Appeal against that judgment.

[3]      Then, on 17 April 2015, Mr Erwood filed in this Court a memorandum which effectively requests that I might recall my judgment of 6 March 2015.

[4]      The grounds advanced for that recall, as best as I can ascertain, are that it is suggested in the judgment in question I “overlooked a critical issue recorded in the written and oral submissions made to [me] at trial.  That the OA failed to make a decision to either accept or reject two creditor’s claims of WINZ and legal aid thus preventing Mr Erwood’s annulment.”

[5]      The orders made in that 6 March 2015 judgment have not been sealed and in accordance with r 11.9 High Court Rules it is possible for me to recall the judgment

if it is appropriate to do so.

ERWOOD v OFFICIAL ASSIGNEE [2015] NZHC 912 [4 May 2015]

[6]      The application for recall is opposed by the Official Assignee.

[7]      McGechan on Procedure at HR 11.9.01 in dealing with recalling judgments under r 11.9 High Court Rules, states:

(2)      Principles

(a)       The leading statement in New Zealand remains that of Wild CJ in Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633:

“Generally  speaking,  a  judgment  once  delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled — first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance   and   high   authority;   secondly,   where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.”

That statement has been applied by the Supreme Court in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] NZLR 76 (SC) and by the Court of Appeal in several cases including Rainbow Corp v Ryde Holdings (1992) 5 PRNZ 493  (CA), Unison Networks Ltd v Commerce Commission [2007] NZCA 49 and Erwood v Glasgow Harley [2007] NZCA 88, (2007) 18 PRNZ 336. The underlying policy is to reconcile the broad ends of justice in relation to the particular case, and the desirability of finality in litigation at first instance: Ashe v Tauranga Marina Soc (1991) 4 PRNZ 89  (HC).

In Erwood v Maxted [2010] NZCA 93 at [23] the Court of Appeal has set out guidelines to deal with the proliferation of unjustified applications to recall judgments in that Court. The guidelines distinguish between correction of accidental slips and omissions and applications for recall, indicating that in respect of the latter, the criteria set out in Horowhenua County will be strictly applied.

[8]      Applying these principles, I am satisfied here that the grounds raised by Mr Erwood do not come within any of the three grounds referred to in Horowhenua County v Nash (No. 2)1 being:

1.where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority;

2.        where  counsel  have  failed  to  direct  the  Court’s  attention  to  a

legislative provision or authoritative decision of plain relevance; or

3.where for some other very special reason justice requires that the judgment be recalled.

[9] As McGechan on Procedure notes at [7] above, it is also clear from Court of Appeal statements made in Erwood v Maxted2 that the guidelines outlined in Horowhenua County v Nash (No 2) are to be strictly applied where applications for recall of judgments are to be considered.

[10]     And,  as  outlined above,  Mr Erwood has  filed  a notice of appeal  of  my

6 March 2015 judgment with the Court of Appeal.  It is not accepted that any critical issues were overlooked at trial of this matter.   In any event, as I see it, they are appeal matters.

[11]     I find therefore that, to the extent that the substantive grounds raised by Mr Erwood here can be properly understood, they are unsupported and rejected. Further, I find that those matters raised by Mr Erwood which, as I understand it, he says are matters for appeal in any event, do not come within any of the three grounds referred to in Horowhenua County v Nash (No 2) and therefore it is not appropriate for my 6 March 2015 judgment to be recalled.   The Courts have always regarded recall of a judgment as a serious step to be taken only in well identified situations,

and this is not one of them – see McGechan on Procedure at HR11.9.(1).

1      Horowhenua County v Nash (No. 2) [1968] NZLR 632 (SC).

2      Erwood v Maxted [2010] NZCA 93.

[12]     The application for recall is therefore dismissed.

...................................................

Gendall J

Solicitors:

Anthony Harper, Christchurch

Copy to Appellant