McEvedy v McEvedy
[2024] NZHC 2314
•16 August 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2021-409-583
[2024] NZHC 2314
BETWEEN VICTORIA MARGARET MCEVEDY
Plaintiff
AND
MICHAEL THOMAS MCEVEDY
First Defendant
AND
MICHAEL THOMAS MCEVEDY and BENJAMIN WILLIAM MCALPINE TOTHILL
Second Defendants
AND
CATHERINE MCEVEDY and ALEXANDRA RUTHERFORD
Third Defendants
AND
BENJAMIN WILLIAM MCALPINE TOTHILL
Fourth Defendant
AND
THE PARTNERSHIP OF DUNCAN COTTERILL
Fifth Defendant
Hearing: On the papers
(submissions 9, 16 and 21 May 2024)
Counsel:
M D Arthur for the Plaintiff
G J Ryan for the First and Third Defendants
A Gaborieau for the Second and Fourth Defendants P McKinnon for the Fifth Defendant
Judgment:
16 August 2024
JUDGMENT OF HARLAND J
(application under r 11.10 (slip rule) by defendants)
MCEVEDY v MCEVEDY [2024] NZHC 2314 [16 August 2024]
Introduction
[1] On 21 December 2023, I issued my judgment in relation to, among other things, an application by the plaintiffs for preservation orders in relation to the capital of the Connamara Trust (the Trust).1 The application was opposed by the defendants. I dismissed the application. An issue has now arisen about a matter contained in [83] of my judgment, in particular whether the first defendant would cease drawing on a loan purportedly owed to him by the Trust. The defendants have applied under r 11.10 of the High Court Rules 2016 (HCR) for this part of [83] to be corrected by deleting it.
[2]The plaintiff opposes the application.
[3] I have decided to dismiss the application. This judgment sets out my reasons for doing so.
Background
[4] The Trust was settled by the first defendant on 17 August 2005. His wife of 41 years, Adrienne McEvedy, the first defendant and their solicitor Mr Tothill were appointed as Trustees of the Trust.2 The first defendant and Adrienne McEvedy are the parents of the third defendants. Adrienne McEvedy died on 11 October 2012.
[5] The first defendant is a beneficiary as to the income of the Trust during his lifetime.
[6] The application for preservation orders by the plaintiff was brought in the context of her claim to review various acts undertaken by the trustees of the Trust who are the second defendants. The plaintiff brings the proceedings in her capacity as a beneficiary as to the capital of the Trust. The other beneficiaries as to capital are her sibling sisters who are the third defendants.
1 McEvedy v McEvedy [2023] NZHC 3875.
2 The first defendant and his wife were also the appointers under the Trust with powers of appointment in relation to the Trustees of the Trust and the capital of the Trust.
[7] As I outlined in my judgment, the Trust is a discretionary family trust which was settled in 2005. The major asset settled into the Trust was the settlor’s interest in a family farm which was sold for approximately $3 million. Its current assets comprise a home occupied by the first defendant and a portfolio managed by Jarden Securities Ltd. Before me, based on the then most recent annual accounts, the total equity in the Trust was recorded to be just over $3.2 million.
[8] The plaintiff’s eight causes of action are outlined in her second amended statement of claim. They include allegations of breach of trust, a derivative claim under s 126 of the Trusts Act 2019, a breach of agreement under the Contract and Commercial Law Act 2017, a breach of a deed of appointment entered into in 2005, negligence, and a declaration is sought pursuant to the doctrine of mutual wills. The plaintiff also seeks an order removing the second defendants as trustees of the Trust.
[9] I referenced a number of factual disputes that exist between the parties in [14]-[39] of my judgment. A key dispute relates to whether the first defendant and the late Mrs McEvedy were able to call in loans allegedly owed to them by the Trust following the transfer of most of their assets into the Trust in 2005.
[10]At [23] and [24] of my judgment, I said:
[23] There is also force to counsel for the defendants’ submission that the reference to Mr or Mrs McEvedy being able to call in loans owing to them by the Trust made sense. As Mr and Mrs McEvedy were proposing to settle most of their assets into a Trust in which they were not to be the capital beneficiaries, their only ability to call assets out of the Trust to support themselves, in addition to any income derived from the capital, was by repayment of their loans to the Trust. Mr McEvedy’s evidence was that he has been calling on the loan made to the Trust to support himself in his retirement and there is no other evidence to suggest there are other assets available to do this. The evidence establishes that $287,585 is the balance of the loan as at 31 March 2021. The first defendant utilises funds from the Trust by payment of a monthly allowance. If it transpires that the income is not adequate to cover the payments made to him, the year end accounts debit the excess off his current account or settlor’s advance account.
[24] There is also a Deed of Appointment and Nomination dated 17 August 2005 which was signed at the same time the Trust was settled. By virtue of this Deed, the remaining capital of the Trust was to be divided on the death of the survivor of either Mr or Mrs McEvedy into three sub-trusts. This accords with Mr McEvedy’s acknowledged position that he and his wife intended to leave the remainder of the Trust to their three daughters. However, counsel for the defendants submitted that it differs from the agreement alleged by the
plaintiff because there is no reference to an intention not to recover loans owing back to them (as the division is to the remainder of the Trust capital existing on the death of the survivor) and the Deed records expressly that it is revocable.
[11] I noted the plaintiff’s claims that there had been unauthorised distributions of Trust capital to the first defendant and the first defendant’s claim that the payments made to him were not distributions but, rather, reduced his settlor’s advance loan. I referred to this in [27] of my judgment as follows:
[27] The plaintiff claims that, during the 2018 financial year, the second defendants distributed $495,400 of Trust capital to the first defendant. The first defendant claims that the payment was not a distribution but, rather, was a reduction of his settlor’s advance loan. Further, the defendants submit that this payment related to a fund referred to by the first defendant as the Education Fund.
[12]In relation to the Education Fund, I said:
[28] In his affidavit dated 23 March 2022, Mr McEvedy deposed that this fund was introduced by error into the Trust when it had always been intended to sit outside the Trust until the surviving settlor’s death. It appears that the distribution referred to above has been made to the third defendants over time and applied expressly to educate each of their children, being Mr McEvedy and Mrs McEvedy’s grandchildren.
[29] The plaintiff does not have children. Her claim is that the Education Fund should be brought back into the Trust as she claims she has been treated unfairly as a result of it.
[30] The defendants contend that the distribution to the Education Fund is not a breach of the alleged agreement because there is no reason why an equalisation could not be made upon Mr McEvedy’s death compensating the plaintiff for the earlier payments, although the defendants contend that such a payment is not required. But, more importantly, the defendants submit there is no basis for the plaintiff’s claim that the distribution should be paid back now or for the suggestion that a constructive trust existed over the capital of the Trust, essentially preserving the capital of it immediately.
[13] The remaining parts of my judgment, where I address the factual dispute, deal with an alleged sub-trust in favour of the plaintiff which the defendants do not accept and threats alleged to have been made by the first defendant to the plaintiff about calling in the balance of his loan which she deposed he considered extended to almost the whole of the Trust’s capital, and further allegations that the first defendant told her that the independent second defendant trustee was resigning as a trustee and the Trust was being wound up. These allegations were denied by the first defendant and the
defendants submitted that her subsequent conduct showed them to be unfounded as the independent second defendant trustee remains a trustee of the Trust and has not resigned and the defendants contend the Trust capital remains intact.
The December judgment
[14] The plaintiff sought orders that, until resolution of the proceedings, the leave of the Court or her prior written approval was required before any transfer, distribution or other dealing (by whatever means) of Trust capital could occur or, in the alternative, such other order as the Court considered appropriate to preserve the Trust capital.
[15] The plaintiff submitted, among other things, that the first defendant had sought to partially revoke her vested interest contrary to the terms of the Trust and that the second defendant trustees were in breach of the Trust because they had distributed, transferred or otherwise paid to the first defendant capital from the Trust and advanced or distributed further sums to the third defendants from the Trust capital.
[16] Further, the plaintiff contended that the trustees had refused to make any adjustment to her in respect of the Trust capital which had resulted in depletion of almost one-third of the Trust capital which prejudiced her position.
[17] The plaintiff contended there was good reason for the orders she sought as the Trust capital would be at further risk of further dissipation should the orders not be granted and in light of her contention that the second defendants had refused to provide undertakings to protect the remaining capital.
[18] The application was hotly contested. The plaintiff filed six affidavits in support of the applications and the defendants filed seven affidavits.
[19]In relation to the risk of dissipation, I addressed this at [78]-[81] as follows:
[78] The risk of dissipation is a factor for this Court to consider. The parties dispute whether there has been any distribution of the Trust capital. The issue here relates to the Education Fund, which Mr McEvedy set up to cover the future education costs of his grandchildren as it was both he and his wife’s wish that their grandchildren attend private schools. Mr McEvedy contends he has provided the funds for this from his personal assets, by reducing the loan he says is owed to him by the Trust. The first and second
defendant’s argument here is two-fold: they submit Mr McEvedy was entitled to draw down the loan owed to him from the Trust to pay for the Education Fund, but also that he retained the ultimate discretion to appoint the capital as he wished to regardless.
[79] The defendants submit Mr and Mrs McEvedy shared a mutual intention but did not create binding obligations which would see them deprived of their assets permanently, supported by legal advice provided by Duncan Cotterill that did not mention a binding promise to divide the Trust capital equally and irrevocably between the three daughters nor to forgive all debt. The defendants submit the plaintiff’s causes of action depend upon an oral agreement to which she was not a party nor was she present when the agreement was discussed or purportedly made.
[80] Although, at this early stage of the proceeding, caution should be exercised in expressing an opinion about the strength of the plaintiff’s claim, nonetheless, an assessment of the merits, as best as can be ascertained is required. In this case, there have been a large number of affidavits filed supporting the parties’ respective contentions. Although the evidence in the case will largely involve an interpretation of the Trust Deed and related documentation, there are aspects of the plaintiff’s claim and the defendants’ response that will require a trial Judge to assess the credibility and reliability of the witnesses.
[81] On a preliminary assessment, it cannot be said that the plaintiff’s case is strong, but it may not be entirely without merit. The plaintiff refers to her various attempts to obtain information from the trustees, her offer prior to issuing proceedings to mediate the issue and her unanswered request for confirmation that the defendants’ costs are not and have not been paid from Trust capital. On the other hand, the defendants contend that the plaintiff’s conduct has been far from exemplary. They refer to her taking Trust papers from Mr McEvedy’s home without his knowledge.
[20] I next considered whether there was a proper basis or good reason to make the preservation orders, noting that the onus was on the plaintiff to satisfy the Court of this requirement. At [82]-[86], I said the following:
[82] The next question to consider is whether there is a proper basis or good reason to make preservation orders. The onus is on the plaintiff to satisfy the Court of this requirement. I am not persuaded that she has. The alleged threats made by the first defendant have not transpired but, in any event, it is the trustees that control the Trust income and capital and, if there are to be distributions, the trustees are required to be satisfied that they are appropriate in terms of the Trust Deed. Accordingly, it is not simply a case of the first defendant deciding to take whatever action he wishes to take.
[83] Further, I am satisfied that the first defendant is taking a responsible approach to these proceedings. He has advised the Court, via his counsel, that he will not be drawing on his loan in the meantime until these proceedings are resolved but, further, the amount of the loan concerned, contrary to the plaintiff’s contention, will not completely dissipate the Trust fund even if it was to be drawn down.
[84] As well, I am satisfied that the intention of the first and second defendants is that there will be, in due course, an adjustment made to ensure that the distributions made via the Education Fund are taken into account in the capital finally distributed to the third defendants when their entitlement of capital of beneficiaries arises.
[85] Although undertakings to this effect have not been provided, even taking into account the plaintiff’s estrangement from her family, there is nothing, in my view, to suggest likely untoward behaviour by the first or second defendants pending the outcome of the substantive hearing.
[86] In my view, the plaintiff has not discharged the onus of showing there is a “proper basis” or “good reason” to make a preservation order.
(emphasis added)
[21]I dismissed the plaintiff’s application for preservation orders.
The application for correction under the slip rule and opposition to it
[22] The issue in contention in this application is the portion of [83] as emphasised above. By its application, the defendants seek to delete the words in italics in [83]. They submit that such advice was not given to the Court, in other words, what was recorded was recorded in error and is required to be corrected because it amounts to an accidental slip or omission in the judgment.
[23] The plaintiff opposes the application. She submitted that the deletion requested would significantly rewrite [83] and further that:
(a) r 11.10 does not extend to the reasons for judgment and that the judgment must stand for better or for worse;
(b) the passage sought to be deleted is not an accidental slip, omission or clerical error, but records the Court’s understanding of the submissions advanced which were relied upon to support one of the four reasons given to refuse her application; and
(c) even if there is a power to amend as suggested, the requested deletion seeks to avoid the assurance that the monthly allowance is limited to
$8,000, such assurance, having been relied on by the Court as one of the four reasons given to refuse her application.
[24] If there is to be an amendment of [83], the plaintiff submits it should be as follows:
[83] Further, I am satisfied that the first defendant is taking a responsible approach to these proceedings. He has advised the Court, via his counsel, that he will not draw from the trust more than $8,000 per month (whether by way
of distribution of income or repayment of any loan) be drawing on his loan in
the meantimeuntil these proceedings are resolved andbut, further, the amount of the loan concerned, contrary to the plaintiff’s contention, will not completely dissipate the Trust fund even if it was to be drawn down.
Transcript
[25] The transcript was not available before my judgment was issued on 21 December 2023 and would not normally have been requested given that the Court was dealing with interlocutory applications and affidavit evidence. Prior to me directing that a copy of the transcript be obtained, Mr Carey (then counsel for the plaintiff) filed an affidavit stating:3
4 To the best of my recollection, during the hearing Mr Ryan, counsel for the first defendant, made a statement that the first defendant did not intend to draw down on the loan until these proceedings were resolved.
[26] I directed that a copy of the transcript of the hearing be obtained on 27 February 2024.
[27] Counsel are agreed that the relevant portions of the transcript appear at pages 21-23 inclusive but counsel for the plaintiff also referred to portions of the transcript at pages 46 and 84.
[28] In an interaction with the Court in relation to the loan issue and Mr Ryan, then counsel for the first and third defendants, the following appears:
A. … Now in relation to the loan, the debt owing back to Mr McEvedy, that is recorded there under non-current liabilities, settlors advance MT McEvedy 233,960 and you’ll see in the previous year your Honour that it was 287,585 and if we went back through previous accounts and I won’t do that unless your Honour wants me to, but if we went back through previous accounts, we would see that there is a gradual reduction in that loan and the reason for that is that Mr McEvedy outlines this in his evidence that he essentially has been for some years, he’s been retired for some years, been receiving what he quaintly recalls – calls perhaps an
3 Affidavit of Samuel Redmond Carey regarding slip application, affirmed 19 February 2024.
allowance from the Trust and the way this is done is, of course he’s an income beneficiary so he’s receiving the income but the income has - of course it fluctuates and it hasn’t been sufficient to sustain the allowance the trustees have deemed is appropriate to pay to Mr McEvedy. So what’s happened is, he’s paid, I think it’s $8,000 a month and there’s a wash-up at the end when the accounts are done and to the degree that the income that the Trust has earned in that year is not sufficient to cover the allowance that has been paid to him, the rest of it is debited from his settlor’s advance account. Does that make sense your Honour?
Q. Absolutely.
A. So essentially he’s been paid by accommodation of income and reduction of debt.
Q. Yes, so that’s why it’s different each year?
A. Correct, yes.
Q. So it’s not him making demand necessarily on it during the year, it’s the wash-up at the end of the year?
A. Exactly your Honour, yes, yes.
Q. So not seeking to access extra funds for anything else?
A. Correct.
Q. No.
A. And that’s why we say it’s not capital and this is the fundamental difference I think between the plaintiff and the defendants in this case is the plaintiff, you’ll hear a lot I think when you hear the plaintiff’s case about this idea that the plaintiff believes that capital has been depleted and the defendant’s response to that is no it’s not because capital, capital is the net assets of the Trust. It’s the assets of the Trust less its liabilities and so the reduction of the settlor’s advance account is not the payment of capital to Mr McEvedy at all.
Q. And the 8,000 is to enable him to live a comfortable life in his retirement?
A. Essentially your Honour yes. Yes. And he relies on it, he says in his evidence he relies on that. He relies on that allowance to give him a reasonable – a comfortable life. Now there’s just before we move off this page –
Q. Well can I just take that idea a bit further and it might be crystal ball gazing and you might say I’m not able to do this, but say, for example, there was an improvement in the income that could be received and that it was sufficient to meet the 8,000, is it the position that there wouldn’t be a call on the loan?
A. I imagine, I mean that would be a decision for the Trustees your Honour.
Q. Yes.
A. But I imagine it would be, yes, yes.
Q. So the current understanding you have is that it’s the 8,000 per month that’s the desire is to continue with that rather than to continue making drawings over or making requests for a repayment of the loan over and above that?
A. Correct. That would be my understanding your Honour, yes that’s the position which as I understand it historically has been fairly settled. There has been an allowance paid at a very, you know, at a, at that level.
Discussion
[29] I have outlined the three reasons the plaintiff submits that r 11.10 does not apply in this situation. I now address the first reason.
No jurisdiction under r 11.10
[30] The plaintiff submits that the defendants’ application is premised on the “assurance” in [83] being an accidental slip in the “judgment” that should be corrected under r 11.10 of the HCR. It was submitted that this premise is incorrect as the requested correction is not to the “judgment” but forms part of the “reasons of judgment”. Counsel referred to the distinction between a judgment and the reasons for judgment as being based in the common law and made clear in r 11.1 of the HCR.
[31] In support of this argument, counsel for the plaintiff referred to Nakhla v McCarthy and R v Ireland, referred to with approval in Attorney-General v Siemer and Rawlinson v Rice, where the distinction between the reasons for judgment and judgment are distinguished.4 In both cases, reference is made to the judgment being the formal answer given to the question before the Court or the order it makes rather than the reasons for judgment which in R v Ireland were expressed as “… not themselves judgments though they may furnish the court’s reason for decision and thus form a precedent.”5
[32] It was submitted that judgment in r 11.10 therefore has a narrow meaning, particularly when considered with reference to r 11.1 and considering how “judgment”
4 Nakhla v McCarthy [1978] 1 NZLR 291 (CA) at 296; R v Ireland (1970) 126 CLR 321 at 330, referred to with approval in Attorney-General v Siemer [2022] NZHC 917 at [52]-[53]; Rawlinson v Rice (1998) 12 PRNZ 639 (HC)
5 R v Ireland, above n 4, at 330.
is referred to in other rules in pt 11 of the HCR, including r 11.8 where judgment and reasons for a judgment are distinguished.
[33] To provide further support to this argument, counsel for the plaintiff also referred to r 8 of the Court of Appeal (Civil) Rules 2005 where the slip rule in that Court has been expressly extended to cover “the reasons for any judgment” along with the “judgment or order”.6 Comparing this rule with r 11.10, counsel submitted that, given the fact that “reasons” are not referred to in r 11.10 of the HCR, this difference confirms that the reference to “judgment” in r 11.10 does not encompass the reasons for judgment.
[34] By way of completeness, counsel for the plaintiff accepted that there are cases that have been decided under r 11.10 that permit corrections to the reasons for judgment7 but submitted that practices cannot expand the meaning of judgment as it appears in r 11.10 for the reason he submitted should apply.
[35] The defendants’ position is that the case law cited by the plaintiff does not support her argument that the wording of r 11.10 does not apply to the reasons for judgment.
[36]The interpretation provision of the HCR applicable to r 11.10, r 11.1, sets out:
judgment includes a decree or order of the court
reasons for judgment means—
(a) the written reasons given by a Judge for his or her decision;
…
[37] It is not contentious that [83] is part of the reasons for judgment, not the judgment itself. This distinction was explained by the Court of Appeal in Nakhla v McCarthy.8 In this case, a page of a judgment dismissing an appeal against conviction and leave to appeal against sentence had been inadvertently omitted, resulting in the
6 Erwood v Maxted [2010] NZCA 93.
7 For example Proprietors of Wakatu v Curnow HC Nelson CIV-2014-442-27, 11 November 2014;
Skipjack Ltd v Hung HC Blenheim, CIV-2005-406-85, 1 July 2005.
8 Nakhla v McCarthy, above n 4.
judgment not referring to one of the grounds put forward during the hearing. Mr Nakhla sought for the orders to be set aside and a rehearing directed, and rejected, once learning of the typist’s omission error, that the Court was entitled to add to the record of the reasons handed down. He withdrew his earlier motion and brought action against the President of the Court of Appeal claiming damages for “abuse of legal process”, of which the orders for strikeout were the subject of this appeal.
[38]The Court in Nakhla v McCarthy held:9
The casual and convenient use by lawyers of the word “judgment” to refer to both reasons and determination may tend sometimes to obscure the distinction which is properly emphasised by the last two sentences of the foregoing extract from the memorandum. The operative judicial act is the formal answer given to the question before the court and that answer or determination is, in the true sense, its judgment.
[39]To similar effect, the High Court of Australia in R v Ireland stated:10
In a proper use of terms, the only judgment given by a court is the order it makes. The reasons for judgment are not themselves judgments though they may furnish the Court’s reason for decision and thus form a precedent.
[40] In R v Ireland, the Supreme Court of Australia had published separate judgments and, by majority, had set aside the respondent’s conviction for murder and ordered a new trial. The judges who formed the majority did not express identical reasons for making such an order. Special leave was sought to appeal against the decision. The applicant’s first submission was that, upon analysis of the separate judgments, there was not a majority in favour of upholding any single ground of the respondent’s appeal and therefore the only order which those judgments would support would be an order dismissing the appeal. The High Court considered that argument “clearly erroneous” and, in making the distinction above at [39], held the Supreme Court’s order allowing the appeal was determined in accordance with the opinion of the majority, despite the different reasoning.11
[41]This Court in Attorney-General v Siemer cited the above passage at [39] from
R v Ireland with approval, observing that while the distinction is generally “given little
9 At 296.
10 R v Ireland, above n 4, at 330.
11 At 330.
attention”, it becomes significant in some contexts, and “is made clear” in r 11.1 of the HCR.12
[42] In Proprietors of Wakatu v Curnrow, Clifford J had ordered that Wakatū was entitled to cancel Mr Curnrow’s lease if he did not pay outstanding rent and legal costs by the specified date.13 Four days later, by way of Minute, Clifford J made corrections to that decision pursuant to the slip rule.14The corrections comprised changing a date included in the order to what it should have originally stated, adding “by Wakatū” in a sentence that otherwise did not make grammatical sense, and fixing a reference to a section of an Act that was relevant to the order. None of the corrections amended the Court’s reasoning but rather gave effect to the order that was otherwise affected by the errors. In Skipjack Ltd v Hung, Gendall J made corrections to a judgment issued two days earlier15 pursuant to the slip rule. 16 However, the slip rule applied was not r
11.10 of the HCR but r 12 of its predecessor, which notably did not include an interpretation section like distinguishing between “judgment” and “reasons for judgment”.17
[43] In Bhullar v Auckland Co-Operative Taxi Society Ltd, Jagose J dismissed an application under r 11.10.18 The applicant sought to correct an interim order which the applicant contended did not express what was decided and intended, implying that the terms of the order were inconsistent with earlier discussion in the judgment about a possible order. Jagose J held:
[3] I doubt HCR 11.10(b) can be relied upon to address contended internal ambiguity in a judgment. That paragraph more naturally refers to the formal order ‘drawn up’ in the wake of the judgment. And the cases are clear the rule may not be invoked to improve on, or to permit second thoughts about, the judgment obtained…
12 Attorney-General v Siemer, above n 4, at [53]-[54]. Both this case and Rawlinson v Rice, above n 4, concerned admissibility of the formal order and reasons for judgment as evidence in criminal trials.
13 Proprietors of Wakatu v Curnrow [2024] NZHC 2782.
14 Proprietors of Wakatu v Curnrow, above n 7.
15 Skipjack Ltd v Hung HC Blenheim CIV-2005-406-85, 29 June 2005.
16 Skipjack Ltd v Hung, above n 7.
17 High Court Rules (1 January 1986 to 31 January 2009).
18 Bhullar v Auckland Co-Operative Taxi Society Ltd [2018] NZHC 1375.
[44] In Kilduff v Tower Insurance Ltd, the parties had filed a joint memorandum alleging errors in the calculation of the defendant’s maximum liability in the judgment that should be corrected by way of r 11.10.19 The plaintiff submitted the method of calculation was accurate, but the stated amounts were in error, while the defendant submitted the method of calculation was in error. Gendall J agreed there was a “clear mistake that has a marked effect on the outcome of the judgment” and therefore corrected the amounts, commenting that “crucially, it does not affect the Court’s reasoning”.20 His Honour, however, held the alleged errors in the method of calculation was an impermissible amendment under the slip rule.21
[45] While the Court of Appeal in Nakhla v McCarthy held that “there can be no challenge to the right of a judge to ensure by correction that the transcript of the reasons for the order… is not wrong”, the Court also stated it is “equally clear” that judges cannot and must not attempt to “modify or change the effect of” the order once it has been formally made and perfected.22 To remove the statement at [83] may amount to a modification of my reasoning and further, Nakhla v McCarthy was not subject to the HCR.
[46] The distinction in r 11.1 means, pursuant to r 11.10(1), corrections may be made only to a “judgment” or “order”. It does not permit the correction of “reasons”. I agree with the plaintiff that any residual doubt is removed by comparing the distinction expressly made in other rules of pt 11 of the HCR and the Court of Appeal (Civil) Rules. For example, r 11.8(1) of the HCR states “A Judge or the Registrar may give a judgment or deliver the reasons for a judgment…”. Rule 8 of the Court of Appeal (Civil) Rules provides:
8 Correction of accidental slip or omission
(1)This rule applies if—
(a)any judgment or order contains, or the reasons for any judgment or order contain, a clerical mistake or an error arising from an accidental slip or omission, whether or not made by an officer of the Court; or
19 Kilduff v Tower Insurance Ltd [2018] NZHC 1243.
20 At [9].
21 At [10].
22 Nakhla v McCarthy, above n 4, at 296.
(b)any judgment or order is drawn up in a way that does not express what was actually decided and intended.
(2)The Court of 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 informal application made for that purpose. (emphasis added)
[47] As a result, I find r 11.10 does not permit me to amend [83] which, as I have outlined, was part of the reasons for my judgment.
[48] Having reached the conclusion that I have no jurisdiction under r 11.10 to make either of the amendments sought, I need deal no further with the alternative arguments. The concerns about [83] are now able to be seen in the context of the discussion as it appears in the transcript and which I have recorded in [28] of this judgment.
Result
[49] The application is dismissed. Although the application was made by the defendants, as it transpired, the plaintiff also sought to amend [83]. Should costs be an issue, memoranda are to be filed sequentially, with the plaintiff to file and memorandum within 10 working days of this judgment and the defendants are to respond within a further 10 working days. The determination of costs will be dealt with by me on the papers.
Harland J
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