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 slip made by a party.2 I view those authorities as not directly applicable when, as here, the party which consents to appointment identifies itself in exactly the terms in which the Court makes its order. In my view, the intended entities were appointed. What appears from Mr McKessar’s memorandum is that a legal adviser within the appointed entities has now appreciated that the joint appointment will “cause a problem”.

[8]    That, of course, does not mean that the Court is unable to deal with the problem now identified. As relied upon by Mr McKessar, r 11.9 permits a Judge to recall a judgment before it is drawn up and sealed. This judgment has not been sealed.

[9]    The leading guidance on the Court’s jurisdiction to recall a judgment is contained in the judgment of Wild CJ in Horowhenua County v Nash (No 2), where his Honour stated:3

Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled - first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.

[10]   There is in this case a very special reason for recall. In the present application, the Court is exercising its statutory jurisdiction to remove obstacles to the administration of an estate in the interests of the beneficiaries. It would be contrary to justice for the plaintiff and the beneficiaries to leave in place an appointment which the appointees themselves consider will cause a problem.

[11]There will therefore be an order in terms of r 11.9 High Court Rules.

2      A C Beck and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR11.10.01].

3      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

Observation

[12]   The difficulty in relation to the appointment made in the judgment arose through the fact that Perpetual Guardian states in the form of letter which contains its initial consent that “Perpetual Guardian is a trading name of The New Zealand Guardian Trust Company Ltd and Perpetual Trust Ltd”.

[13]   Mr McKessar’s memorandum indicates that the solicitor from Perpetual Guardian has informed him that “Perpetual Trust Ltd (alone) also trades as Perpetual Guardian”.

[14]   In a situation in which the Court has been called upon to revisit a judgment carefully considered and prepared, it is appropriate to record the Court’s concern that the trading style adopted by the two separate companies jointly but, apparently, also by those companies individually, is apt to lead to confusion, precisely as it has in this case. Given the frequency with which “Perpetual Guardian” is involved with estates, including through Court appointment, the Court invites the relevant entities to reconsider their trading style so as to avoid confusion for the Court and any other entities with whom “Perpetual Guardian” interacts.

Order

[15]I order:

(a)the judgment in this proceeding dated 13 July 2020 is recalled;

(b)the judgment is reissued, amended in the terms attached to this Recall Judgment with the ordered appointments still taking effect from 13 July 2020.

Osborne J

Solicitors:

Hardy-Jones Clark, Blenheim

Copy to: R-M H J Spijkerman, Christchurch (self-represented Defendant)