Setter

[2022] NZHC 1996

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2021-441-6

[2022] NZHC 1996

UNDER

Part 18 of the High Court Rules 2016 and the Trusts Act 2019

IN THE MATTER OF

an application to correct an accidental omission in the authorised variation of trust deed

IN THEMATTER OF

an application to the Court for authorisation to vary a trust deed

BETWEEN

ALISTAIR JAMES SETTER, PATRICK MARCUS PEACOCK, KAREN ELIZABETH MIDDELBERG, ELIZABETH CLEMENT JANE GRAY TOSWILL, CALLUM LEICESTER GRAY, CATERINE ANNE AVERY, AND GEORGE HUGH WILLIAMS AS TRUSTEES OF CENTRAL HAWKES BAY CONSUMERS POWER TRUST

Applicants

Hearing:	On the Papers
Counsel:	H J P Wilson and J P Bell-Connell for Applicants K Lawrence for Beneficiaries
Judgment:	12 August 2022

JUDGMENT OF ISAC J

[Correction of judgment under the slip rule]

[1]                 This proceeding concerns an application for authorisation to vary a trust deed of the Central Hawkes Bay Consumers Power Trust (the Trust).

SETTER, PEACOCK, MIDDELBERG, TOSWILL, GRAY, AVERY, AND WILLIAMS AS TRUSTEES OF CENTRAL HAWKES BAY CONSUMERS POWER TRUST v [2022] NZHC 1996 [12 August 2022]

[2]                 In a results judgment of 10 June 2021,1 I approved the application in terms of a Variation of Trust Deed “as annexed to the affidavit of Alistair James Setter at AJS-2”. In a subsequent judgment of 1 July 2021, I provided reasons for my decision.2

[3]                 One of the key amendments to the terms of the Trust related to the number of trustees elected by electricity consumers. Prior to the amendment, the maximum number of trustees elected by consumers was four. The variation increased the number of trustees appointed in this way to seven. It did so through an amendment to cl 2.1 of the Trust Deed so that it now reads:

2.1      Number of Trustees

Number: The number of Trustees shall be seven (7) elected in accordance with the provisions contained in this Deed.

[4]                 However, in a memorandum of counsel of 3 August 2022, I was advised that there had been an oversight in the drafting of the Variation of Trust Deed. The oversight relates to cl 2.18(c) of Schedule 1, which reads:

2.18     Eligibility to Vote:

c     Eligible voters shall vote for not more than four (4) candidates.

[5]                 As counsel note, while cl 2.1 of the Trust Deed was varied by my judgments to reflect the increase in the number of trustees, the oversight in cl 2.18(c) of sch 1 as approved creates an obvious inconsistency in relation to the number of trustees elected by consumers.

[6]The Trust sought to have the error corrected under the slip rule.3

[7]                 Both the authors of McGechan on Procedure,4 and recent decisions of this Court,5 recognise that the slip rule may extend to the correction of omissions or errors resulting from inadvertence of a legal adviser. However, the circumstances in which a court may do so are quite narrow. In cases where, as here, judgment has been entered

1      Setter & Ors [2021] NZHC 1381.

2      Setter & Ors [2021] NZHC 1603.

3      High Court Rules 2016, r 11.10(1)(a).

4      McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR11.10.01].

5      FL Trustees 2012 Ltd v Moore [2021] NZHC 763; and Sloots v Sloots [2020] NZHC 1696.

on the terms sought by one of the parties, recourse to the slip rule will generally only be available where the proceeding is uncontentious and there is no requirement to receive further evidence.

[8]                 I am satisfied this is such a case. The application was advanced despite public notification without an appearance by any other party. A senior lawyer with expertise in trust matters was appointed to represent the interests of the beneficiaries and supported the application. There was no opposition to the application and correction of the error does not require the admission of further evidence.

Conclusion and orders

[9]                 For these reasons, I correct the slip in my previous judgments. The order at [3] of my judgment dated 10 June 2021 is amended to read:

The Court confirms the variation of the trust deed – as annexed to the affidavit of Alistair James Setter at AJS-2 with the addition that clause 2.18(c) of Schedule 1 of the Trust Deed be amended to read that ‘Eligible voters shall vote for not more than seven (7) candidates’.

[10]Leave to apply is reserved.

Isac J

Solicitors:

Dentons Kensington Swan, Wellington for Applicants Greg Kelly Law, Wellington for Beneficiaries