Secure Funding Limited v Asaua

[2020] NZHC 432

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2871

[2020] NZHC 432

UNDER

the Property Law Act 2007

BETWEEN

SECURE FUNDING LIMITED

Plaintiff

AND

NORMAN ASAUA

Defendant

Hearing:	On the papers
Appearances:	TRJ Jeffcott for the Plaintiff
Judgment:	11 March 2020

JUDGMENT OF GAULT J

This judgment was delivered by me on 11 March 2020 at 11:30 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Mr TRJ Jeffcott, Lowndes Ltd, Auckland

SECURE FUNDING LTD v ASAUA [2020] NZHC 432 [11 March 2020]

[1]                The plaintiff’s without notice interlocutory application to amend the name of the defendant pursuant to r 11.10 of the High Court Rules 2016, dated 5 March 2020, has been referred to me.

[2]                The plaintiff seeks to correct the order dated 4 June 2019 by substituting for the defendant, Norman “Asua”, the name Norman “Asaua”.

[3]Rule 11.10 provides:

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.

[4]                In a pleading, a misspelling of a defendant’s name can be corrected even to defeat limitation where a misnomer has occurred, that is, where a reasonable person reading the pleading would appreciate that the plaintiff meant to sue him or her and not the person actually named as the defendant. If the reader would be left unsure, such that further enquiry was needed, then it is not a case of misnomer.1

[5]                This principle has been applied under r 11.10 to amend the misspelled name of a party against whom a sealed judgment had been obtained.2

[6]                I am satisfied that the defendant, reading the pleading, would be in no doubt that it was referring to him, notwithstanding the misspelling. That would be apparent

1      Registered Securities Ltd (in liquidation) v Jensen Davies & Co Ltd [1999] 2 NZLR 686 (CA).

2      Turrall v Bluett [2018] NZHC 760, citing Allan Scott Wines & Estates Holdings Ltd v Lloyd

(2006) 18 PRNZ 199 (HC) at [50] which addressed the District Court equivalent.

on the face of the statement of claim. In addition, the statement of claim refers to documents which correctly spell the defendant’s name. There is authority for the proposition that where documents are referred to in a pleading they become part of the pleading.3 Such documents, correctly spelling the defendant’s name, were exhibited to the affidavit in support of the application for summary judgment.

[7]                Accordingly, I consider that r 11.10 applies and the order may be corrected on a without notice basis with no injustice.

Result

[8]                I direct that the order dated 4 June 2019 be corrected by substituting for the defendant, Norman Asua, the name Norman Asaua.

Gault J

3      Registered Securities Ltd (in liquidation) v Jensen Davies & Co Ltd [1999] 2 NZLR 686 (CA) at 689, citing Day v William Hill (Park Lane) Ltd [1949] 1 KB 632, [1949] 1 All ER 219 (CA) and Krone (NZ) Technique Ltd v Connector Systems Ltd (1988) 2 PRNZ 627 (HC).