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 and judgments as a result of a slip or accidental omission. I accept that the rule extends to correction of a clerical mistake or error arising from a slip or omission made by a party (i.e. rather than the Court itself).1

[6]However, as the authors of McGechan on Procedure note:2

The slip rule does not apply where the order implements exactly what was intended by counsel or a party, but is later discovered to be mistaken. In these circumstances an application for recall is more appropriate.

[7]    This commentary is drawn from the decision in Sloots v Sloots. 3 In that case, the order made appointed “The New Zealand Guardian Trust Company Limited and Perpetual Trust Limited (trading as Perpetual Guardian)” as administrator and trustee of a deceased estate. Relevantly for present purposes, an order made in those terms was in accordance with the form of consent provided by “Perpetual Guardian,” and was also in accordance with counsel’s submissions.

[8]    It subsequently transpired that the appointment made by the Court was not in fact what Perpetual Guardian’s counsel desired. The correct entity which counsel should have requested to be appointed was “Perpetual Trust Limited (trading as Perpetual Guardian).”

[9]    On an application to deal with this issue through the slip rule, Osborne J stated that it was not appropriate to treat the matter as falling within the scope of that rule. Referring to authorities discussed in McGechan on Procedure (to the effect that the rule can extend to inadvertence of a legal adviser or a slip made by a party), Osborne

1      Re Gower (No 2) [2020] NZHC 461.

2      Andrew Beck McGechan on Procedure (looseleaf ed, Brookers) at [HR11.10.01].

3      Sloots v Sloots [2020] NZHC 1696.

J did not consider those authorities directly applicable in the circumstances before him. This was because:4

… as here, the party which consents to appointment identifies itself in exactly the terms in which the Court makes its orders. In my view, the intended entities were appointed.

[10]   Osborne J noted, however, that that did not mean the Court was unable to deal with the problem identified, given that Rule 11.9 permits a judge to recall a judgment before it is drawn up and sealed. The judgment in Sloots v Sloots had not been sealed, and Osborne J accordingly dealt with the application under the recall rule. He recalled and reissued his judgment with the alternative party identified.

Plaintiffs’ submissions

[11]   Counsel for the plaintiffs refers to the slip rule, and notes that the present application is not intended to alter the substance of my earlier judgment or what was intended to be decided, but is limited to correcting an oversight by the plaintiffs themselves. Counsel submits that the application will not alter the substantive decision and because of this, it is appropriate for the application to be dealt with without notice to the beneficiaries of the Trust.

[12]   Counsel does not address the authorities referred to in McGechan on Procedure, including Sloots v Sloots.

Discussion

[13] While I have some sympathy with the plaintiffs’ position, the appropriate procedural route is not in my view to correct my earlier judgment under the slip rule. Having regard to the form of the slip rule (set out at [4] above), my earlier judgment does not contain a “clerical mistake”, or an “error” arising from an accidental slip or omission. There is accordingly no “error” in the judgment requiring “correction”. The judgment reflects precisely the content and subject matter of the original application for vesting orders, which related only to the two properties referred to.

4 At [7].

[14]   Further, and as noted in the commentary to the slip rule in McGechan on Procedure, the jurisdiction ought not to be invoked where determination of the question at hand would require the calling of further evidence.5 Further evidence is required in this case (and has in fact been filed by the plaintiffs on the present application).

[15]   For completeness, I note that in Mutual Shipping Corp of New York v Bayshore Shipping Co of Monrovia (The Montan), Lord Goff referred to earlier authorities in which a judgment had been corrected as a result of an accidental slip or omission, even though the judgment or order as drawn did in fact represent the intention of the Court at the time.6 Those authorities concerned:

(a)correcting an order to award certain costs to the plaintiff, which the plaintiff’s counsel had accidentally omitted to draw to the attention of the Court;7

(b)correcting a judgment which had been drawn up on the basis that certain payments of interest had been made from a particular date, due to the accidental slip of one of the parties;8

(c)correcting a costs order, where one of the parties, by a pure slip, had not included in its bill of costs for taxation an item which “obviously ought to have been included”;9

(d)correcting a judgment which, through a slip by a party’s solicitor’s clerk, the sum in respect of which judgment had been signed included a reference to costs at too high a scale;10 and

5      Brickell v Attorney-General (2002) 16 PRNZ 557 (HC); see generally Andrew Beck McGechan on Procedure (looseleaf ed, Brookers) at [HR11.10.01].

6      Mutual Shipping Corp of New York v Bayshore Shipping Co of Monrovia (The Montan) [1985] 1 All ER 520 (CA) at 528.

7      Fritz v Hobson 14 Ch D 542, [1874-80] All ER Rep 75.

8      Barker v Purvis (1887) 56 LT 131.

9      Chessum & Sons v Gordon [1901] 1 KB 694, [1900-3] All ER Rep 260.

10     Armitage v Parsons [1908] 2 KB 410.

(e)the correction of an order to add costs which had been omitted because counsel had forgotten to ask for them to be included.11

[16]   These types of omissions on counsel’s part could be said to be analogous to that arising in this case; the judgment or order that was “corrected” had in fact reflected the application that had been put before the Court. But a review of those authorities highlights that they were largely concerned with uncontentious matters on which no further evidence was required. The judgment in re Inchcape usefully summarises the principles. In re Inchcape itself, full solicitor/client costs had been awarded in relation to the application that had been before the Court. But through inadvertence, counsel did not seek costs incurred before the summons had been issued. Morton J noted that if he had been asked to award such costs, he would have awarded them and no further evidence was required to deal with the matter. Morton J surveyed the earlier authorities. His Honour noted that in the earliest decision in the line of authorities, Fritz, the Judge had had sufficient recollection of the circumstances to be sure he would have made the order he was then being asked to make, and the “whole of the substance” had been before him at the time of the original judgment. On that basis, Morton J was prepared to make the “correction” as requested.

[17]   The circumstances in which a slip rule or similar has been deployed where the judgment or order reflects what had originally been put before the court are accordingly quite narrow. As will be appreciated, those authorities are also consistent with the observations in McGechan on Procedure that the slip rule jurisdiction ought not to extend to where determination of the question at hand would require the calling of further evidence.

[18]   I therefore return to the point that my earlier judgment does not contain an “error”. Moreover, further (albeit limited) evidence is required in this case to correct the suggested error. In my view, and noting the importance attaching to finality of judgments, the slip rule ought not to be expanded further than the ordinary words of the rule can bear.

11     Re Inchcape Craigmyle v Inchcape [1942] 2 All ER 157, [1942] Ch 294.

[19]   I accordingly decline to amend my earlier judgment on the basis of the slip rule.

[20]   My 2019 judgment has been sealed. The recall route adopted in Sloots v Sloots is accordingly unavailable. This likely means that the only remaining course available to the plaintiffs is to commence a fresh application for vesting orders in relation to the third parcel of land. While inconvenient, that is likely to be the appropriate procedural route to deal with the problem that has arisen.

[21]   Counsel may wish to consider seeking directions from the Court dispensing with service on the beneficiaries, given the vesting of the earlier two parcels of land and that the same principles to vest the third parcel would no doubt apply. I expect that the application for a further vesting order could be dealt with by a Judge on the papers, given my earlier judgment addressing the principles and matters in issue.12

Fitzgerald J

12 For completeness, and for any future papers prepared by the plaintiffs in this case, I note that there appears to be a typographical error in the papers filed on the present application. The application and the affidavit in support both refer to the third parcel of land as comprising 1,3450 hectares of land, whereas the Certificate of Title annexed to the affidavit refers to only 1.3450 hectares of land.