Creser v Creser
[2015] NZCA 579
•2 December 2015 at 2:30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA193/2003 [2015] NZCA 579 |
| BETWEEN | RICHARD JOHN CRESER |
| AND | JANINE MICHELLE CRESER AND ANOR AS EXECUTORS NOMINATED IN THE WILL OF JESSIE JOY CRESER |
| Hearing: | 23 November 2015 |
Court: | Randerson, French and Kós JJ |
Counsel: | Q S Haines for Applicant |
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.
____________________________________________________________________
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 differed from the order as sealed. It recorded that the costs order was made in favour of Janine Creser and Marion Creser as executors. Despite Mr Creser’s discharge from bankruptcy, he still wished to seek an order declaring that his bankruptcy was a nullity. He submitted that the correction of the error in the sealed judgment would be of assistance to Mr Creser in pursuing that goal.
Background to the costs order made in this Court in 2003
After Jessie Creser’s death, Mr Creser filed a caveat against the grant of probate to his two sisters. He also filed a separate proceeding against Janine Creser alone in which he sought an order revoking her appointment as an executor. In addition, Mr Creser sought an interim order appointing an administrator of the estate. He later amended his proceeding to seek an order that Janine Creser be removed as an administrator or trustee. Marion Creser was not named as a defendant in these proceedings.
In a judgment delivered on 2 September 2003, Gendall J struck out Mr Creser’s claim and awarded costs of $5,843.50 against him.[3] The Judge also directed Janine and Marion Creser as the named executors to apply for probate in solemn form. This order was conditional upon Mr Creser providing within 14 days a charge against his interest in his mother’s estate for $20,000 by way of security for costs.
[3]HC judgment, above n 1.
On 29 September 2003 Wild J gave certain directions including that Mr Creser should have further time to give security for costs. That time expired but this Court ordered a stay pending the hearing of an application for leave to appeal to this Court out of time against the judgment of Gendall J.
The notice of appeal dated 2 October 2003 was filed by Mr Creser. It named the respondent as “J M Creser”. An associated application for special leave was brought on for hearing urgently on 6 October 2003 with a decision being delivered on 8 October 2003.[4] To distinguish this decision from the formal sealed judgment we will call it the “reasons for judgment”. The intituling of the reasons for judgment is as follows:
BETWEEN RICHARD JOHN CRESER
Applicant
ANDJANINE MICHELLE CRESER AND ANOR AS EXECUTORS NOMINATED IN THE WILL OF JESSIE JOY CRESER
Respondents[5]
[4]CA costs judgment, above n 1.
[5]Although the applicant sought to name others in his application, we have used for convenience only the intituling adopted in the reasons for judgment.
The reasons for judgment record that Mr Creser appeared in person and Mr R Chapman for the “Respondents”. The reasons given were brief. They record that the applicant advised at the beginning of the hearing that he was prepared to give security for costs in an appropriate form and did not wish to proceed with his appeal against the order requiring security. After an adjournment, a revised form of assignment by way of charge, acceptable to the parties, was tendered. The Court said this meant the matter could effectively be resolved by consent.
The reasons for judgment record that Mr Creser wished to proceed with his application for leave to appeal against other matters dealt with by Gendall J including a challenge to the costs award of $5,843.50. This Court considered that the matters Mr Creser wished to pursue could be taken up in the High Court once an application was made for a grant of probate in solemn form. As to the costs order in the High Court, this Court was not prepared to grant special leave to appeal out of time for a discretionary order for costs of less than $6,000. It dismissed the application for leave accordingly.
The reasons for judgment record the following with regard to the costs of the application before the Court:[6]
[7] Mr Chapman sought costs on the present application. After hearing the parties we considered the executors are entitled to costs but, because of the matters raised by the applicant, we fix costs, lower than would ordinarily apply, of $2,000.
[6]CA costs judgment, above n 1.
On 8 October 2003 the Registrar of this Court gave notice to the High Court of the outcome of Mr Creser’s application for special leave. This notice, expressed in the form of a certificate, was required by r 23 of the 1997 Court of Appeal (Civil) Rules then in force which provided:[7]
23. Result of appeal — The Registrar must notify the Registrar of the Court below of the result of each appeal.
[7]Court of Appeal (Civil) Rules 1997 (SR1997/180).
The intituling on this certificate was the same as that on the reasons for judgment. In respect of costs, the certificate stated:
The executors are entitled to costs but, because of the matters raised by the applicant, we fix costs, lower than would ordinarily apply, of $2,000.
Then, on 14 October 2003, at Mr Chapman’s request, the Registrar sealed judgment in these terms:
BEFORE THE RIGHT HONOURABLE JUSTICE GAULT, THE RIGHT HONOURABLE JUSTICE BLANCHARD AND THE HONOURABLE JUSTICE McGRATH
Wednesday 8 October 2003
UPON READING the appellant’s notice of appeal AND UPON HEARING the appellant in person and Mr Roger Chapman, counsel for the respondent, THIS COURT ADJUDGES AND ORDERS –
1.That the appellant’s application for special leave to appeal against the judgment of the High Court of New Zealand at Wellington dated 2 September 2003 in Proceedings Nos CIV 2003-485-644 and CIV-2003-485-893 be and it is hereby dismissed.
2.That the appellant pay the respondent’s costs of and incidental to the application in the sum of $2,000.
By the Court
___________
Registrar
SEALED this 14th day of October 2003.
The intituling on the front page of the sealed judgment referred to Richard John Creser as appellant and Janine Michelle Creser as respondent. So the sealed order reflected the original intituling on Mr Creser’s notice of appeal naming J M Creser alone as respondent and with no reference to her nomination as one of the executors.
Subsequent events
Relevantly for present purposes, Janine Creser issued bankruptcy notices against Mr Creser on 16 October 2003 relying on the costs awarded by Gendall J of $5,843.50 and the costs of $2,000 ordered by this Court. Mr Creser was adjudicated bankrupt on 8 March 2004. He appealed against that order but this Court determined on 2 September 2004 that his failure to provide security for Janine Creser’s costs in this Court meant that the appeal was treated as having been abandoned.[8] This Court also concluded that the order for adjudication was properly made and that Mr Creser had no arguable grounds of appeal.[9] The Court said:
[7] Mr Creser has advanced a number of grounds of appeal, but all of them are misconceived. Mr Creser sought to go behind the costs orders, which were the unpaid debts leading to his bankruptcy. That is plainly impermissible. Those orders have been fixed. Gendall J’s order was affirmed on appeal. There has been no appeal from this court’s judgment. The costs orders are final.
[8] Secondly, Mr Creser argued that he should not have to pay the costs orders because of his entitlement under his mother’s estate. He should be able, he said, to set off these orders against that entitlement. There is nothing in that point, however, as Mr Creser has no vested interest in his mother’s estate. His “share” has been left to an institutional trustee who has a discretion to pay income to Mr Creser. In any event, Mr Creser’s earlier proceeding against his sister was not a claim against the estate: it seems to have been a misguided attempt to prevent his sister from applying for probate.
(emphasis added)
[8]Creser v Creser CA110/04, 2 September 2004.
[9]At [12].
In consequence of a successful application brought under the Family Protection Act 1955 by the Official Assignee on behalf of Mr Creser’s bankrupt estate, the High Court awarded Mr Creser a one‑third share in his mother’s estate absolutely, so terminating a trust made for him under the will.[10] The result of that judgment was that the Official Assignee was able to clear all of Mr Creser’s debts, leaving a modest surplus.[11]
[10]Creser v Creser [2006] NZFLR 850 (HC).
[11]Creser v Creser [2014] NZHC 3267 at [27].
Despite Mr Creser’s automatic discharge from bankruptcy in March 2007, he persisted with applications for annulment of his bankruptcy under both s 119(1)(a) and (b) of the former Insolvency Act 1967. In a reserved decision given on 24 August 2007, MacKenzie J made an order releasing the Official Assignee from administration of Mr Creser’s bankrupt estate.[12] He recorded there was no dispute that Mr Creser was entitled to an annulment under s 119(1)(b) as his creditors had all been paid. An order for annulment was made under that provision. Such an order is effective from the date it is made. However, the Judge declined to order an annulment under s 119(1)(a) which would have had the effect of annulling the adjudication from and after the date of the adjudication. MacKenzie J held it was inappropriate to re-open the issue of the adjudication noting that this Court had already rejected Mr Creser’s argument that the debt upon which the bankruptcy petition was based should have been set off against his share in his mother’s estate.
[12]Creser v Creser HC Wellington, CIV-2003-485-2225, 24 August 2007.
In 2014, nearly seven years later, Mr Creser again filed an application in the High Court seeking an annulment of his bankruptcy under s 119(1)(a) of the Insolvency Act 1967. That application was dismissed by Associate Judge Smith on 16 December 2014.[13] Mr Creser’s appeal against this decision was deemed abandoned under r 43 of the Rules on 30 April 2015.[14]
The application
[13]Creser v Creser, above n 11.
[14]CA38/2015.
Rule 8 of the Rules provides:[15]
[15]The Court of Appeal (Civil) Rules 2005 apply to all existing proceedings: r 56(1)(a).
8 Correction of accidental slip or omission
(1) This rule applies if—
(a)any judgment or order or the reasons for any judgment or order contain a clerical mistake or an error arising from an accidental slip or omission (whether the mistake, error, slip, or omission was made by an officer of the Court or not); or
(b)any judgment or order is drawn up in a way that does not express what was actually decided and intended.
(2) The Court or the Registrar may correct the judgment or order or the reasons for the judgment or order on—
(a) the Court’s or Registrar’s own initiative; or
(b) an interlocutory application made for that purpose.
(3) The Registrar may correct the judgment or order or the reasons for the judgment or order in accordance with subclause (2) only if the judgment or order in question was made by the Registrar.
Mr Haines accepted that the power to correct a judgment or order of the Court or the reasons for that judgment or order is discretionary in nature. Rule 8(1)(a) permits the correction of a clerical mistake or an error arising from an accidental slip or omission. It does not matter whether the relevant mistake or error is made by an officer of the Court or otherwise. Rule 8(1)(b) enables the correction of a judgment or order which is drawn up in a way that does not express what was actually decided and intended. The correction may be made by the Court on its own initiative or upon an interlocutory application. Where the judgment or order in question was made by the Registrar, he or she has the same discretionary power as the Court has to correct the judgment or order or the reasons for the judgment or order.
As this Court held in Nash v Nash, the discretion to correct an accidental slip or omission under this rule is a well-settled exception to the general rule that a sealed judgment stands in its entirety.[16] The jurisdiction is not lightly exercised[17] and is generally directed at errors of a minor nature that do not go to the substance of the decision. In the absence of consent, a change such as the substitution of a new party may be of such a fundamental nature that it should not be countenanced under the rule.[18] We do not accept Mr Haines’ submission that r 8 is not available in an appropriate case to correct an error in the reasons for judgment. Rule 8(1)(a) expressly confers jurisdiction to do so.
Discussion
[16]Nash v Nash (1995) 8 PRNZ 575 (CA) at 576.
[17]Bank of New Zealand v Mulholland (1991) 4 PRNZ 299 (HC).
[18]Allan Scott Wines and Estates Holdings Ltd v Lloyd (2006) 18 PRNZ 199 (HC) at [43]–[51].
We record that we arranged for Mr Haines to view the court file after the hearing and agreed to allow him to file any further correspondence considered relevant to the application. When this material had not arrived we prepared a judgment for delivery but delayed this when Mr Haines advised further material and a memorandum were to be submitted. These additional documents have now been received and considered.
It is not clear to us 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. There is nothing we can find on the Court file to explain the change nor any evidence of an order amending the intituling being made. Mr Creser’s affidavit in support of his application contains no explanation for the change.
To show Janine Creser alone in her personal capacity would have been consistent with the High Court proceedings from which Mr Creser’s appeal was brought. It would also have been consistent with the nature of the dispute that existed between Janine Creser and Mr Creser as to whether she should be entitled to a grant of probate. Mr Creser appeared to recognise this himself when he filed his appeal simply against “J M Creser”. On the other hand, the change of intituling may simply have reflected the Court’s view that security for costs should be given by Mr Creser in favour of both Janine and Marion Creser as the executors nominated under the will.
Contrary to Mr Haines’ submission, it appears from relevant correspondence that Mr Chapman (who represented Janine and Marion Creser at the time) considered the costs order was payable to Janine Creser personally. His letter of 10 October 2003 sending the order for sealing was headed “CA193/03 – Creser v Creser” and in a letter dated 18 December 2008 responding to a complaint Mr Creser had made against him to the New Zealand Law Society he said he recalled an exchange with a member of the Court at the time of the appeal asking whether the costs were payable to Janine Creser personally. His response was this was correct. He pointed out in the letter that probate had not then been granted and that Janine Creser would be entitled to indemnity from the estate when and if probate was granted to her.
Mr Haines drew our attention to a letter Mr Chapman sent to Mr Creser dated 8 October 2003 requesting payment of the costs. This was headed “Your Mother’s Estate” and stated “While our clients could collect them from your share of the estate, they are not required to wait for that”. We do not view this letter as indicating that Mr Chapman accepted the costs were payable to Mr Creser’s sisters in their capacity as executors and trustees. They did not then have that status since probate had not been granted and the reference to recovery from the estate is plainly a reference to the security Mr Creser had provided to his sisters over his share in the estate.
The certificate issued by the Registrar for the purposes of r 23 of the 1997 Rules does not assist. It does not constitute a judgment in itself as Mr Creser appears to have thought. It is merely notice of this Court’s decision for the purpose of informing the Court below.
Some form of error appears to have occurred given the discrepancy between the reasons for judgment and the sealed order but we are unable to determine some 12 years after the event how this came about or which version is correct. Further, even if we were satisfied there was an error in the sealed order we would have declined to exercise our discretion under r 8 to correct it. First, Mr Creser must at least have been aware of the terms of the reasons for judgment and the sealed order since 2003. Yet he has done nothing until now to raise any concerns despite the costs orders being at the heart of his attempts to resist his bankruptcy, and later, to seek an annulment. Second, we are not persuaded that any useful purpose would be served if we were to make the correction sought. Mr Creser has long since been discharged from bankruptcy and has successfully obtained an order annulling his bankruptcy under s 119(1)(b) of the Insolvency Act. Third, he has now been unsuccessful on two occasions in seeking an annulment under s 119(1)(a) and his appeal rights have been exhausted. This Court has concluded he had no valid basis for such an order.
Finally, it is not apparent to us how the correction sought would assist Mr Creser in any event. In terms of the reasons for judgment, the costs order is still expressed to be only against his two sisters as the executors nominated under the will. Referring to them in that fashion is no more than a description of their status at the time of the order. The order could not be treated as affecting them in their capacity as executors and trustees of their mother’s estate since probate had not then been granted. Indeed, Mr Creser was strongly disputing the grant. As we see it therefore, the costs order could only have been in favour of Janine and Marion Creser in their personal capacity. This Court reached a similar conclusion in 2004 in the passage we have highlighted at [18] above.
Result
The application to correct the judgment of this Court sealed on 14 October 2003 is dismissed.
There is no order for costs.
Solicitors:
Simpson & Co, Otaki for Applicant