Korda Mentha (Formerly Ferrier Hodgson) v Siemer

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2005-404-001808 [2012] NZHC 1548

BETWEEN KORDA MENTHA (FORMERLY FERRIER HODGSON)
First Plaintiff

ANDMICHAEL PETER STIASSNY Second Plaintiff

ANDVINCENT ROSS SIEMER Defendant

CIV 2012-404-001133

AND BETWEEN VINCENT ROSS SIEMER Plaintiff

ANDMICHAEL PETER STIASSNY First Defendant

ANDKORDA MENTHA Second Defendant

Hearing: On the papers. Judgment: 2 July 2012

JUDGMENT OF ANDREWS J [Application by Mr Siemer for correction of judgment delivered on 18 May 2012 in proceeding CIV-2012-404-001133]

This judgment is delivered by me on 2 July 2012 at 4pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors: McElroys, DX CP20526, Upper Shortland Street [email protected]
F C Deliu, PO Box 68559, Newton 1145, Auckland [email protected]

And to: V Siemer

KORDA MENTHA V SIEMER HC AK CIV 2005-404-001808 [2 July 2012]

[1] In a memorandum dated 31 May 2012, Mr Siemer has asserted that there are “material inaccuracies” in my judgment delivered on 18 May 2012 in respect of the proceeding brought by Mr Siemer against Michael Peter Stiassny and Korda Mentha (“the judgment”), which he invites me to correct under the “slip rule”. In a memorandum dated 12 June 2012, counsel for Mr Stiassny and Korda Mentha submit that there are no material inaccuracies in the judgment, and that the discretion to correct a judgment should not be exercised.

[2] The “slip rule” is set out in r 11.10 of the High Court Rules, which provides that a judgment may be corrected by the court if it contains (amongst other things) “an error arising from an accident slip or omission”. The court’s power to correct an accidental slip or omission is discretionary and is sparingly exercised. The general
rule as to the finality of judgments is not likely to be weakened.[1]

[1] See McGechan on Procedure (looseleaf ed, Brookers) at [HR 11.10.02].

[3] I deal with the matters raised by Mr Siemer in turn:

(a) Mr Siemer submitted that the “judgment number” was incorrect. I do not accept this submission. The front page of the judgment identifies the two proceedings (referred to in the judgment as “the 2012 proceeding” and “the 2005 proceeding”), in respect of which interlocutory applications were set down for hearing before me on 19
March 2012. Paragraphs [1] to [4] of the judgment set out the circumstances under which the applications were set down together, and the fact that there was insufficient time on 19 March 2012 to hear both applications. As recorded at [5] of the judgment, and on the front page of the judgment, the judgment deals only with the application made by Mr Stiassny and Korda Mentha to strike out Mr Siemer’s statement of claim in the 2012 proceeding. That is the judgment to which the reference number [2012] NZHC 1074 was allocated. There is no error in the judgment number.

(b)Mr Siemer next submits that I purported to make a costs order in respect of the 2005 proceeding, which was not heard on 19 March. It

is made clear at [111] of the judgment that the costs order against Mr Siemer was in respect of the strike out application in the 2012 proceeding.

(c) At paragraphs 7 to 11 of his memorandum, Mr Siemer submits that there are various errors by way of omission in the judgment. If the matters he refers to are errors, then they are not errors which could be corrected under r 11.10.

(d)At paragraph 12 of his memorandum, Mr Siemer submits that there is an error by way of omission in the judgment in that it is not stated that an affidavit sworn by Mr Andrew Colgan on 7 March 2012 was filed in “a distinctly different proceeding” (the 2005 proceeding). In fact, the judgment records at [42] and again at [70] that Mr Colgan’s affidavit was filed in the 2005 proceeding. The reasons why I concluded that the affidavit could be read in support of the strike out application are set out at [70] and [71] of the judgment.

[4] I am satisfied that no correction of errors is required or appropriate. Mr

Siemer’s request is declined.

Andrews J

In Korda Mentha (Formerly Ferrier Hodgson) v Siemer, the defendant, Mr Siemer, sought to correct what he claimed were material inaccuracies in a judgment delivered on 18 May 2012. The judgment concerned an interlocutory application made by the plaintiffs, Korda Mentha and Mr Stiassny, to strike out Mr Siemer's statement of claim in a proceeding that was initially filed in 2005 and subsequently in 2012. The High Court of New Zealand was tasked with determining whether the judgment contained any correctable errors under the slip rule, as set out in r 11.10 of the High Court Rules.

The court was required to assess Mr Siemer's claims of inaccuracies, which included the judgment number, the inclusion of a costs order pertaining to the 2005 proceeding, and omissions in the judgment. The court examined each of these submissions in turn, considering whether they constituted correctable errors under the slip rule. For instance, the court found no error in the judgment number and clarified that the costs order applied to the 2012 proceeding, not the 2005 proceeding. Additionally, the court reviewed Mr Siemer's claims of omissions and found that any perceived errors were not correctable under the slip rule.

The court concluded that no correction of errors was required or appropriate. It found that the judgment accurately reflected the proceedings and the orders made, and that the perceived inaccuracies raised by Mr Siemer did not constitute correctable errors under the slip rule. Therefore, the court declined Mr Siemer's request for correction of the judgment. The final orders of the court were that no corrections to the judgment would be made, and the judgment as delivered on 18 May 2012 would stand.

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