Sloots v Sloots - [2020] NZHC 1696

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2019-442-62

[2020] NZHC 1696

UNDER THE Administration Act 1969 and the Trustee Act 1956

IN THE MATTER

of the Estate of CORNELIA ANTONIA MARIE SLOOTS

BETWEEN

JENNIFER MARY ANNE SLOOTS

Plaintiff

AND

JENNIFER MARY ANNE SLOOTS and ROSE-MARIE HUBERTHA JOHANNA

SPIJKERMAN, as Trustees and Executors of the estate of Cornelia Antonia Marie Sloots Defendants

Representation:
N McKessar for Plaintiff

R H J Spijkerman (second-named defendant) in person

Judgment:

15 July 2020

(Determined on the papers)

RECALL JUDGMENT OF OSBORNE J

This judgment was delivered by me on 15 July 2020 at 10.30 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

[1] On 13 July 2020, this Court issued a judgment, upon formal proof, granting the plaintiff orders as to the removal of the former administrators of the Estate of Cornelia Sloots and the appointment of new administrators/trustees.1

1 Sloots v Sloots [2020] NZHC 1670.

SLOOTS v SLOOTS [2020] NZHC 1696 [15 July 2020]

[2] The order made by the Court named The New Zealand Guardian Trust Company Ltd and Perpetual Trust Ltd (trading as Perpetual Guardian) as administrator of the estate and also trustees of the estate. The identification of the new administrators/trustees in those terms flowed from the form of consent provided by “Perpetual Guardian” and was, in accordance with counsels’ submission, contained in a memorandum dated 19 June 2020.

The error

[3] It transpires that the appointment made by the Court is not what Perpetual Guardian’s solicitor desired. Mr McKessar records in a memorandum now filed:

On liaising with legal counsel from the Perpetual Guardian it is apparent that whilst the Perpetual Guardian (as a trading entity) can still act as per their consents, having both named companies in the application will cause a problem.

The correct entity which counsel should have requested to be appointed is Perpetual Trust Ltd (trading as “Perpetual Guardian”).

Remedy

[4] Mr McKessar seeks a correction of the judgment alternatively pursuant to the slip-rule (r 11.10 High Court Rules) or in the Court’s jurisdiction to recall a judgment (r 11.9 High Court Rules).

[5] Mr McKessar notes that the overall outcome, under either rule, will be the same as the current judgment because “Perpetual Guardian” will act as administrators and trustees.

Discussion

[6] I am not satisfied that it is appropriate to treat the present situation as falling within the intent of the slip rule, r 11.10. What is covered, in terms of r 11.10(1)(a), is “a clerical mistake or an error arising from an accidental slip or omission”. Alternatively, under r 11.10(1)(b), also covered is a form of judgment or order which is drawn up so that it does not express what was decided and intended.

[7] There is authority, referred to in the commentary on r 11.10 in McGechan on Procedure, for correction under the slip-rule of omissions arising from the inadvertence of a legal adviser or a…

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 Sloots v Sloots

Details

AGLC: Sloots v Sloots [2020] NZHC 1696
Case: [2020] NZHC 1696
Decision Date: 15 July 2020

CaseChat Overview and Summary

In Sloots v Sloots, the parties involved were Jennifer Mary Anne Sloots as the plaintiff and Jennifer Mary Anne Sloots and Rose-Marie Hubertha Johanna Spijkerman as defendants, who were also the trustees and executors of the estate of Cornelia Antonia Marie Sloots. The dispute centred around the administration of Cornelia's estate and the appointment of new administrators/trustees. The case was heard in the High Court of New Zealand, Nelson Registry, and was determined on the papers. The legal issues before the court were whether the judgment could be corrected under the slip-rule or recalled under the High Court Rules to address an error in the appointment of the administrators/trustees of the estate.

The court found that the error in the judgment was not a clerical mistake or an accidental slip, as the appointed entities were correctly identified in the consent form. However, the court acknowledged that the appointment could cause a problem as identified by the legal adviser within the appointed entities. The court exercised its jurisdiction to recall the judgment under rule 11.9 of the High Court Rules, as the appointment would be contrary to justice for the plaintiff and the beneficiaries. The court considered the special circumstances of the case, where the administration of the estate was at stake, and it would be unjust to leave the appointment in place. The court invited the relevant entities to reconsider their trading style to avoid confusion in the future.

The court issued an order recalling the previous judgment and reissuing it with the amended appointments, with the changes taking effect from the original date of the judgment. The court emphasized the importance of clear communication and accurate identification of entities involved in estate administration to avoid such errors in the future. The final orders ensured that the intended administrators/trustees were appointed, and the administration of Cornelia's estate could proceed without further delays or complications.

Orders