Clements v Clements

[2019] NZHC 204

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2018-488-106

[2019] NZHC 204

UNDER

the Trustee Act 1956

BETWEEN

KEVIN ALLEN CLEMENTS

Plaintiff

AND

PHYLLIS IRENE CLEMENTS as Trustee of the ERIC AND PHYLLIS CLEMENTS FAMILY TRUST

Defendant

On the papers
Appearances:	AG Jackson for Plaintiff
Judgment:	19 February 2019

SUPPLEMENTARY JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 19 February 2019 at 3.00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

CLEMENTS v CLEMENTS [2019] NZHC 204 [19 February 2019]

[1]                 On 15 October 2018, I issued a judgment in which I made the following orders in accordance with a draft submitted by counsel:1

(a)Pursuant to section 51 of the Trustee Act 1956, Phyllis Irene Clements shall cease to be the Trustee of the Eric and Phyllis Clements Family Trust forthwith;

(b)Simultaneously with part (a) of the Order, and pursuant to section 51 of the Trustee Act 1956, the Applicant and YHPJ Trustees (2018) Limited be appointed as Trustees of the Estate of the Eric and Phyllis Clements Family Trust.

(c)Simultaneously with parts (a) and (b) of the Order, and pursuant to section 47 of the Trustee Act 1956, all property in the Eric and Phyllis Clements Family Trust be vested in the Applicant and YHPJ Trustees (2018) Limited as Trustees of the said Trust; and

(d)The costs of the proceeding shall be met by the Trust.

[2]                 At [4], I said that I would be prepared to make an order vesting the Trust assets, including the property at 1274 State Highway 1, RD2, Hikurangi, in the new trustees but the orders omitted specific mention of the property.

[3]                 On 22 January 2019, the solicitor for the trustees received a requisition from the Registrar-General of Land pursuant to s 37(1)(b) of the Land Transfer Act 2017, directing the trustees to obtain an order from the Court which refers to the land the subject of the orders by reference to either a legal description or a record of title reference.

[4]                 The requisition is properly served. The absence of a specific reference to the land renders the orders unfit for the intended purpose of enabling the transfer of the land to the new trustees.

1      Clements v Clements [2018] NZHC 2657.

[5]                 I cannot recall the earlier judgment under r 11.9 of the High Court Rules 2016, because it has been sealed, but I have the power under r 11.10 to correct an accidental slip or omission. Rule 11.10(1)(b) provides that a judgment or order “may be corrected by the court … if it … is drawn up so that it does not express what was decided and intended.” Further, the Court has an inherent power to correct errors, in exceptional circumstances, in the interests of justice.2

[6]I issue this Supplementary Judgment accordingly.

[7]                 To make the necessary corrections to the original orders, the orders at paragraph [5] of my judgment of 15 October 2018 are recalled and the following orders are made:

(a)Pursuant to section 51 of the Trustee Act 1956, Phyllis Irene Clements shall cease to be the trustee of the Eric and Phyllis Clements Family Trust forthwith.

(b)Simultaneously with Order (a) above, and pursuant to section 51 of the Trustee Act 1956, Kevin Allen Clements and YHPJ Trustees (2018) Limited are appointed as trustees of the Eric and Phyllis Clements Family Trust.

(c)Simultaneously with Orders (a) and b) above, and pursuant to s 47 of the Trustee Act 1956, all property in the Eric and Phyllis Clements Family Trust, including all of the land at 1274 State Highway 1, RD2, Hikurangi, comprised in Record of Title Identifier No. 132015, North Auckland Land Registration District, being Lot 1 on Deposited Plan 332180, shall be vested in the Applicant and YHPJ Trustees (2018) Limited as Trustees of the said Trust.

2      R v Smith [2003] 3 NZLR 617 (CA) at [28]-[36].

(d)The cost of the proceeding shall be shall be met by the Trust.

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

Toogood J