FL Trustees 2012 Limited v Moore - [2021] NZHC 763

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2019-470-35

[2021] NZHC 763

UNDER Part 18 of the High Court Rules

AND

the Trustee Act 1956, section 52

BETWEEN

FL TRUSTEES 2012 LIMITED, MICHELLE GAYLENE MOORE and

WILLIAM JOHN MOORE as trustees of the Valerie Moore Family Trust

Plaintiffs

AND

VALERIE MARGARET MOORE

Defendant

Hearing: On the papers

Appearances:

MP Ward-Johnson for plaintiffs

Judgment:

12 April 2021

JUDGMENT OF FITZGERALD J

[As to request for correction of judgment under slip rule]

This judgment was delivered by me on 12 April 2021 at 5.00pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

FL TRUSTEES 2012 LIMITED v MOORE [2021] NZHC 763 [12 April 2021]

Introduction

[1] The plaintiffs apply (without notice) pursuant to r 11.10 of the High Court Rules (the slip rule) for correction of an error said to have been made in a judgment delivered by me on 9 July 2019. In short, in that judgment, I made orders vesting trust property in the plaintiffs’ names as the continuing trustees of the Valerie Moore Family Trust (the Trust). The vesting orders were made against the backdrop of Mrs Valerie Moore (an original trustee) having been removed as a trustee of the Trust due to dementia. Vesting orders were necessary as the trust property (being real property) was still registered in Mrs Moore’s (and the other trustees’) names.

[2] My judgment related to two parcels of land, as referred to in the orders I made at [22] of the judgment. Those orders accurately reflected the content of the application that had been put before the Court.

[3] It has since become apparent that there is in fact a third parcel of land, being an area of 1.3450 hectares of land in South Auckland, which also needs to be vested in the names of the continuing trustees (for the same reasons as the two parcels of land dealt with in my original judgment). The plaintiffs, as applicants under the slip rule, state that by an accidental slip or omission, they failed to include this third parcel of land within their original application for vesting orders. They seek correction of my earlier judgment to deal with this error.

The slip rule

[4]The slip rule provides as follows:

11.10 Correction of accidental slip or omission

(1)A judgment or order may be corrected by the court or the Registrar who made it, if it–

(a)contains a clerical mistake or an error arising from an accidental slip or omission, whether or not made by an officer of the court; or

(b)is drawn up so that it does not express what was decided and intended.

(2)The correction may be made by the court or the Registrar, as the case may be,–

(a)on its or his or her own initiative; or

(b) on an interlocutory application. (emphasis added)

[5] The rule reflects the Court’s inherent jurisdiction to correct errors made in orders…

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 FL Trustees 2012 Limited v Moore

Details

AGLC: FL Trustees 2012 Limited v Moore [2021] NZHC 763
Case: [2021] NZHC 763
Decision Date: 12 April 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Tauranga Registry, the case of FL Trustees 2012 Limited v Moore was heard. The plaintiffs, FL Trustees 2012 Limited, Michelle Gaylene Moore, and William John Moore, as trustees of the Valerie Moore Family Trust, sought to correct an error in a previous judgment that had failed to include a third parcel of land in the vesting orders. The defendant, Valerie Margaret Moore, an original trustee of the trust, had been removed due to dementia. The issue before the court was whether the slip rule could be used to correct an oversight by the plaintiffs.

The slip rule provides a mechanism for correcting errors in judgments or orders that arise from accidental slips or omissions. However, the court found that the earlier judgment did not contain an error that required correction under the slip rule. The judgment accurately reflected the content and subject matter of the original application for vesting orders, which related only to two properties. The court held that the slip rule should not be used to correct errors where further evidence is required, as was the case here.

The court declined to amend the earlier judgment on the basis of the slip rule, noting the importance of the finality of judgments. Instead, the court suggested that the plaintiffs commence a fresh application for vesting orders in relation to the third parcel of land. The court also noted a typographical error in the papers filed on the present application, which referred to the third parcel of land as comprising 1,3450 hectares of land, whereas the Certificate of Title referred to only 1.3450 hectares of land.

In conclusion, the court declined to amend the earlier judgment on the basis of the slip rule, and suggested that the plaintiffs commence a fresh application for vesting orders in relation to the third parcel of land. The court also noted a typographical error in the papers filed on the present application.

Orders