McEvedy v McEvedy - [2024] NZHC 2314

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…

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 McEvedy v McEvedy

Details

AGLC: McEvedy v McEvedy [2024] NZHC 2314
Case: [2024] NZHC 2314
Decision Date: 16 August 2024

CaseChat Overview and Summary

The case of McEvedy v McEvedy involves an application by the defendants to correct a part of the judgment issued by Harland J on 21 December 2023. The plaintiff, Victoria Margaret McEvedy, opposed the application. The defendants sought to delete a statement from the judgment that the first defendant would not draw on a loan from the Connamara Trust during the proceedings. The plaintiff argued that the requested deletion would significantly alter the judgment and that r 11.10 of the High Court Rules 2016 (HCR) did not permit corrections to the reasons for judgment. The court found that r 11.10 only allowed corrections to the "judgment" and not the "reasons for judgment". The distinction between the two was supported by case law and the interpretation provision of the HCR. The court held that it had no jurisdiction under r 11.10 to amend the reasons for judgment, and therefore dismissed the application. The plaintiff was to file a memorandum on costs within 10 working days of the judgment, with the defendants to respond within a further 10 working days. The determination of costs would be dealt with by the court on the papers.

The court's decision highlights the importance of the distinction between a judgment and the reasons for judgment. While the court can correct errors in the judgment itself, it cannot amend the reasons for judgment under r 11.10. This distinction is crucial in ensuring that the court's reasoning and the formal order it makes are not modified after the judgment has been issued. The court's decision also underscores the need for careful drafting of judgments to avoid any potential errors or omissions.

Orders