Turrall v Bluett

[2018] NZHC 760

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-1706

[2018] NZHC 760

IN THE MATTER

of Section 244 of the Property Law Act 2007

BETWEEN

JOHN GRAHAM TURRALL and PETER

WILLIAM BUTLER as Trustees of the Carler Family Trust

Applicants

AND

BRIAN GRAHAM BLUETT and TODD GRAHAM BRUCE BLUETT

Respondents

Hearing:	On the papers
Counsel:	A Gilchrist for the Applicants
Judgment:	23 April 2018

JUDGMENT OF MUIR J

This judgment was delivered by me on Monday 23 April 2018 at 3.00 pm Pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:…………………………

Counsel/Solicitors:
A Gilchrist, Barrister, Auckland

TURRALL v BLUETT [2018] NZHC 760 [23 April 2018]

[1]        The applicants apply for orders amending the name of the first named respondents, against whom a sealed judgment has already been obtained.

[2]        The proposed amendment is to his middle name which, in terms of the sealed judgment, appears as “Graham”. In fact, the spelling of his middle name is “Grayham”, as confirmed in his own affidavit of opposition dated 21 September 2015.

[3]        Originally, the applicants also sought a change to their name to accommodate the fact that one of the trustees had been omitted and another has recently died. In response to a minute from me dated 16 April 2018, that application is no longer progressed. Counsel accepts that there is no jurisdiction to make such amendment after sealing of the judgment because it would not relate to a clerical mistake or error. Rather, it would involve an alteration to the identity of the parties.

[4]        In respect of the application relating to Mr Bluett, I accept that this is governed by r 11.10. That 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.

[5]The power under r 11.10 extends to amending a judgment under seal.1

1      Willcocks v Teat HC Rotorua, CIV-2008-463-784; Andrew Beck and others McGechan on Procedure HR11.10.01

[6]        The jurisdiction has been held specifically to apply where a defendant has been mis-named. In Allan Scott Wines and Estates Holdings Limited v Lloyd, Miller J held:2

[50] I conclude that the jurisdiction under the second limb of  rule 12  permits the Court to amend a judgment so as to substitute another defendant, where it has been shown that the defendant was wrongly named due to an accidental slip or omission that was not identified and addressed before the judgment was sealed, and where the amendment can be made summarily with no injustice to the substituted party. Such an amendment could be countenanced only in a clear case of misnomer, in which the correct defendant had appreciated from the outset that it was the intended target and conducted itself accordingly.

[7]        That case concerned the interpretation of r 12 of the District Court Rules 1992. That rule, however, is in almost identical terms to r 11.10 of the High Court Rules 2016.

[8]        The test for whether a “misnomer” has occurred is whether 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.3

[9]        In this case, I am satisfied, having particular regard to the terms of the first named respondent’s own affidavit that he could be under no illusion that he was the person in fact named as one of the respondents in the proceedings.

[10]      Accordingly,  I consider  the application  falls  squarely within  the terms  of  r 11.10.

Result

[11]      I direct that the order for possession of land and cancellation of lease, dated  3 February 2016, be corrected by substituting for the first named respondent, Brian Graham Bluett, the name Brian Grayham Bluett.

2      Allan Scott Wines and Estates Holdings Limited v Lloyd (2006) 18 PRNZ 199 (HC) at [50].

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

[12]I make no order as to costs in relation to that application.

Muir J