Leary v Barratt - [2013] NZHC 2992

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-7427 [2013] NZHC 2992

IN THE MATTER OF the Estate of the late PATRICIA AMSTEAD LEARY

BETWEEN SHARON LOUISE REYNOLDS ROBERT NEWCOMB LEARY and LYNETTE MAREE DUNCAN Plaintiffs/Judgment Creditors

ANDSHARYN DAWN BARRATT DOUGLAS JOHN BARTLETT
(aka DOUGLAS JAMES BARTLETT) TIMOTHY HARRISON as trustees of the BARRATT FAMILY TRUST Defendants/Judgment Debtors

Hearing: 8 November 2013

Appearances: G D Wiles for Plaintiffs
A M Swan for Defendants

Judgment: 8 November 2013

ORAL JUDGMENT OF ASSOCIATE JUDGE BELL

Solicitors:
Duncan Horrocks Law, Epsom Auckland, for Plaintiffs
Whitlock & Co, Auckland, for Defendants

Counsel:
G D Wiles, Auckland, for Plaintiffs
Andrew M Swan, Auckland, for Defendants

REYNOLDS v BARRATT FAMILY TRUST [2013] NZHC 2992 [8 November 2013]

[1] Today has been set down for the judgment debtors to appear to be examined as to their means under Part 17 of the High Court Rules.

Service

[2] A question has arisen as to service. Mr Bartlett has appeared in person – his examination has not yet started. Sharyn Barratt and Timothy Harrison have not appeared. Mr Swan, on their behalf, submits that they have not been validly served. He says that Mrs Barratt is out of town because of a bereavement and is unable to attend. He says that Mr Harrison has resigned as a trustee of the Barratt Family Trust and is now apparently living in Hong Kong.

[3] For service, the judgment creditors rely on an affidavit of Annette Marie Duncan, which deposes that on 13 September 2013 she served each of the judgment debtors with the sealed order for summary judgment and the orders for examination by sending them under cover of a letter dated 13 September 2013 to Gaze Burt, solicitors of Albany, to their PO Box 301251 Albany.

[4] Gaze Burt were the solicitors for the defendants in the original summary judgment application. However, on 16 September 2013 the judgment debtors filed a notice of change of representation and address for service. The judgment debtors’ new solicitor is Malcolm Whitlock, of Whitlock & Co, and his address for service is at Unit N, 44 Constellation Drive, Mairangi Bay, Auckland. In my judgment, the letter posted on 13 September 2013 would have reached Gaze Burt before the notice of change of representation was filed in this court.

[5] Mr Swan says that serving an order for examination on the judgment debtors’

address for service is not valid service. For that, he refers to r 17.13(1):

Unless the court otherwise orders, an order to attend court for examination must be served on the examinee not less than 10 working days before the examination.

[6] It is Mr Swan’s submission that the order for examination must be served on the judgment debtor in person. It cannot be served on the judgment debtor’s address for service. I do not read r 17.13 that way. That rule is directed at fixing the time before the examination, when the judgment debtor must be served – not…

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.

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Details

Case: [2013] NZHC 2992
Decision Date: 8 November 2013

CaseChat Overview and Summary

The case of Leary v Barratt revolves around an estate matter where Sharon Louise Reynolds, Robert Newcomb Leary, and Lynette Maree Duncan, the plaintiffs, sought to enforce a judgment against Sharyn Dawn Barratt, Douglas John Bartlett (also known as Douglas James Bartlett), and Timothy Harrison, who are the defendants and trustees of the Barratt Family Trust. The plaintiffs were awarded a summary judgment against the defendants, leading to an order for examination of the defendants' means to satisfy the judgment. The defendants contested the validity of the service of the examination order and sought to recall or correct the judgment based on the limitation of liability provision in the original sale agreement.

The court addressed the issue of service, confirming that the defendants were validly served as per the High Court Rules, despite the change in legal representation and the defendants' failure to appear. The court further examined the defendants' application to recall or correct the judgment. It was established that the limitation of liability clause was not raised during the summary judgment application, and therefore, the court did not consider it. The court held that once a judgment has been sealed, it cannot be recalled except in limited circumstances, and the defendants' application did not meet those criteria. Additionally, the court found that correcting the judgment to include a limitation of liability would alter the substance of the original decision, which is not permissible under the rules.

The court dismissed the defendants' application to recall or correct the judgment, affirming that the judgment as sealed should stand. The order for examination was to be broader, allowing the court to examine the defendants' personal means to satisfy the judgment, not just their capacity as trustees. The defendants were given the opportunity to protest the jurisdiction if they wished to challenge the court's authority in this matter.

Orders