ERWOOD V RAYLEE PATRICIA HARLEY HC WN CIV 2000 485 27

ERWOOD V RAYLEE PATRICIA HARLEY HC WN CIV 2000 485 27 31 October 2007IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2000 485 27BETWEEN ROBERT JOHN ERWOOD Applicant AND RAYLEE PATRICIA HARLEY Respondent Hearing: Submissions 19 and 29 October 2007 for Applicant Submissions 29 October 2007 for Respondent Counsel: Applicant in person C R Carruthers QC for Respondent Judgment: 31 October 2007JUDGMENT AS TO COSTS OF RONALD YOUNG J[1] In these proceedings the respondent seeks costs either on an uplifted 2B basis or an uplifted 3B basis. In the substantive proceedings Mr Erwood unsuccessfully sought orders that two writs of sale obtained by Mrs Harley and executed by the Registrar of the High Court be "set aside". The basis on which he did so involved a challenge by him to a settlement agreement reflected in a Court order between himself, Mrs Harley and a law firm. [2] I concluded that Mrs Harley was simply enforcing costs orders made in her favour and against Mr Erwood in terms of the settlement of outstanding matters between Mr Erwood and Mrs Harley. [3] I refused to order any stay of payment of the sum held by the Registrar of the High Court at Auckland as a result of the writ of sale execution.[4] Mr Erwood unsuccessfully appealed to the Court of Appeal challenging my refusal to stay execution pending his appeal against my judgment. [5] The respondent says that given; (a) the lack of merit of Mr Erwood's arguments; (b) Mr Erwood represented himself, failed to serve a number of documents and filed unclear documents meant considerable extra time was required by counsel; (c) Mr Erwood made serious allegations against Mrs Harley with respect to her truthfulness then an uplift on either category 2 or category 3 should be allowed. [6] On the basis of category 2B costs would be $11,200, on category 3B costs would be $16,590. [7] Mr Erwood has responded with two documents. [8] The first is said to be a memorandum to remove charging order nisi. It is unsigned but simply says the writs of sale have been fully satisfied. It does not mention costs. The second which has no intituling. A significant section of the document is in writing with a number of cross-outs and capitals. Simon France J in his minute of 10 August 2007 made it clear that the Court should not accept documents from Mr Erwood which were handwritten and which did not clearly identify what proceedings they related to and clearly identified what application was being made. [9] As I understand Mr Erwood's second application, it is an attempt to argue: (a) That a guardian ad litem should have been appointed for him at the time the writ of sale was sought.(b) In any event, the amount sought by Mrs Harley in the writ of sale was wrong. (c) Mr Erwood had previously paid all of the monies the subject of the writ of sale. [10] As to (b) and (c) these were dealt with in my judgment and are not part of this costs judgment. [11] As to (a) Mr Erwood had a guardian ad litem at the time of the settlement in this matter between himself, Mrs Harley and Glasgow Harley. He did not have a guardian ad litem at the time the writ of sale was sought. Given the writ of sale was granted ex parte, whether Mr Erwood was or was not entitled to be represented by a guardian ad litem hardly seems the point. [12] I am satisfied that this was a relatively simple matter. For the reasons in my judgment I gave I considered Mr Erwood was trying to reinterpret a settlement agreement and Court order. I see no reason why costs beyond 2B costs should be ordered in these circumstances. [13] I therefore allow the respondent costs on a 2B basis of $11,200 plus disbursements as fixed by the Registrar."Ronald Young J"Solicitors: Russell McVeagh, Wellington, for Respondent