Creser v Creser - [2015] NZCA 579

IN THE COURT OF APPEAL OF NEW ZEALAND

CA193/2003
[2015] NZCA 579

BETWEEN	RICHARD JOHN CRESER Applicant
AND	JANINE MICHELLE CRESER AND ANOR AS EXECUTORS NOMINATED IN THE WILL OF JESSIE JOY CRESER Respondents

Hearing:	23 November 2015
Court:	Randerson, French and Kós JJ
Counsel:	Q S Haines for Applicant No appearance for Respondents
Judgment:	2 December 2015 at 2:30 pm

JUDGMENT OF THE COURT

AThe application to correct the judgment of this Court sealed on 14 October 2003 is dismissed.
BThere is no order for costs.

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REASONS OF THE COURT

(Given by Randerson J)

Introduction

The applicant’s mother Jessie Joy Creser died in March 2003. In her will, she named Mr Creser’s siblings Janine Michelle Creser and Marion Ngaire Creser as her executors and trustees. Mr Creser was not satisfied with the terms of the will and instituted a number of court proceedings. Costs orders were made against him in the High Court and in this Court in 2003.[1] When Mr Creser failed to pay the costs awarded, Janine Creser brought bankruptcy proceedings against him. He was adjudicated bankrupt on 8 March 2004. Mr Creser has since been automatically discharged from bankruptcy but continues to dispute his adjudication, including by seeking to have the order for adjudication declared a nullity.
[1]Re Creser HC Wellington CIV-2003-485-893, 2 September 2003 [HC judgment] and Creser v Creser CA193/03, 8 October 2003 [CA costs judgment].
One of the costs orders relied upon by Janine Creser in the bankruptcy proceedings was an order made by this Court on 8 October 2003 requiring Mr Creser to pay costs of $2,000.[2] The order was sealed by the Registrar of this Court on 14 October 2003. The order provided that the appellant was to pay the respondent costs of $2,000. Richard John Creser was described as the appellant and Janine Michelle Creser as respondent.
[2]CA costs judgment, above n 1.
After some 12 years had elapsed, Mr Creser applied on 11 September 2015 seeking various declarations and orders including:
A declaration that the Judgment sealed by the Court on 14 October 2003 was defective because it claimed that costs were the property of Janine Michelle Creser.
Mr Haines has since been instructed as counsel. He confirmed to us that the declaration we have just described is the only relief sought. He also confirmed that the application relied on r 8 of the Court of Appeal (Civil) Rules 2005 (the Rules).
The essence of the application is that the order as sealed contained a clerical mistake or an accidental slip or omission or did not express what was actually decided and intended. In particular, it was submitted the costs order should not have been made in favour of Janine Creser in her personal capacity. Rather, it should have been made in favour of Janine and Marion Creser as executors of their mother’s estate.
Mr Haines explained that Mr Creser had only recently become aware that the Registrar had issued a certificate on 8 October 2003 which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Creser v Creser

Details

AGLC: Creser v Creser [2015] NZCA 579
Case: [2015] NZCA 579
Decision Date: 2 December 2015 at 2:30 pm

CaseChat Overview and Summary

In the case of Creser v Creser, Richard John Creser sought to correct a judgment of the Court of Appeal of New Zealand, which had been sealed on 14 October 2003. He argued that the judgment contained an error, as the costs order should have been made in favor of Janine and Marion Creser as executors of their mother's estate, rather than in favor of Janine Michelle Creser in her personal capacity. The applicants sought various declarations and orders, including a declaration that the judgment was defective and that his bankruptcy was a nullity.

The Court of Appeal considered the legal issues, including the power to correct a judgment or order under Rule 8 of the Court of Appeal (Civil) Rules 2005. The Court noted that the jurisdiction to correct an accidental slip or omission is a well-settled exception to the general rule that a sealed judgment stands in its entirety. However, the Court held that the discretion to correct an accidental slip or omission is not lightly exercised and is generally directed at errors of a minor nature that do not go to the substance of the decision.

The Court found that it was not clear how the intituling in CA193/03 was changed from J M Creser as respondent at the outset to the form in which it is shown in the reasons for judgment of 8 October 2003. However, even if there was an error in the sealed order, the Court would have declined to exercise its discretion under Rule 8 to correct it. The Court concluded that Mr. Creser had done nothing to raise any concerns about the terms of the reasons for judgment and the sealed order despite the costs orders being at the heart of his attempts to resist his bankruptcy and later, to seek an annulment. Additionally, the Court found that any useful purpose would not be served if they were to make the correction sought, as Mr. Creser had long since been discharged from bankruptcy and had successfully obtained an order annulling his bankruptcy under s 119(1)(b) of the Insolvency Act.

The Court dismissed the application to correct the judgment of this Court sealed on 14 October 2003. There is no order for costs.

Orders