Raylee Patricia Harley v Robert John Erwood

IN THE SUPREME COURT OF NEW ZEALAND
SC 89/2010
[2010] NZSC 138

BETWEENRAYLEE PATRICIA HARLEY

Applicant

ANDROBERT JOHN ERWOOD

Respondent

Court:Blanchard, Tipping and McGrath JJ
Counsel:C R Carruthers QC for Applicant

P R W Chisnall for Official Assignee
N Levy as Amicus Curiae

Judgment:16 November 2010

JUDGMENT OF THE COURT

The applications for leave to appeal by Mrs Harley and Mr Erwood are both dismissed.

REASONS

[1]        The High Court[1] and the Court of Appeal[2] are agreed that Mrs Harley’s proof of debt should not have been accepted by the Official Assignee to the extent that it related to a claim which had been compromised by a consent order made by the High Court on 25 November 2003.
[1]Erwood v Official Assignee HC Wellington CIV-2008-442-449, 9 April 2009 per Simon France J.
[2]      Official Assignee v Erwood [2010] NZCA 362 per Hammond, O’Regan and Arnold JJ.
[2]        We are not persuaded that there is any error of principle in the interpretation given to the consent order by the Courts below. Nor, to address the other test for leave, is the interpretation so obviously wrong that there may have been a substantial miscarriage of justice. On the contrary, it appears to us to be unchallengeable.
[3]        Mr Erwood has in his application for leave challenged the decision not to order that the Official Assignee’s costs in the High Court be borne by Mrs Harley. In her very helpful submissions, the amicus, Ms Levy, has pointed out that this puts Mr Erwood in the position of bearing those costs notwithstanding his success. The High Court Judge considered, however, that in all the circumstances, including the extra and unnecessary costs caused by the manner in which Mr Erwood conducted the litigation, the appropriate outcome was that all costs and disbursements in that Court should lie where they fell. We are not disposed to interfere with that assessment which the Judge was well placed to make, noticing that the Court of Appeal also took the view that it was not unreasonable for the Official Assignee to be represented in the High Court.
Solicitors:
Thompson & Morgan, Christchurch for Applicant

CaseChat Overview and Summary

Raylee Patricia Harley, an applicant, brought an appeal against Robert John Erwood, the respondent, concerning a debt that was compromised by a consent order made by the High Court. The Supreme Court of New Zealand heard the appeal and dismissed the applications for leave to appeal by both parties. The court found that Mrs Harley’s proof of debt should not have been accepted by the Official Assignee to the extent that it related to a claim which had been compromised by the consent order. The court also found that there was no error of principle in the interpretation given to the consent order by the Courts below and that the interpretation was not so obviously wrong that there may have been a substantial miscarriage of justice.

The legal issues that the court had to decide included whether the decision not to order that the Official Assignee’s costs in the High Court be borne by Mrs Harley was appropriate. The court found that it was not disposed to interfere with the High Court Judge’s assessment that all costs and disbursements in that Court should lie where they fell, considering the extra and unnecessary costs caused by the manner in which Mr Erwood conducted the litigation. The court also found that it was not unreasonable for the Official Assignee to be represented in the High Court.

The court concluded that the decision of the Courts below was unchallengeable and that there was no substantial miscarriage of justice. The court dismissed the applications for leave to appeal by both parties and upheld the decision of the Courts below.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established