REYNOLDS v BARRATT FAMILY TRUST [2013] NZHC 2992

REYNOLDS v BARRATT FAMILY TRUST [2013] NZHC 2992

Service of the orders for examination was valid by posting to the specified PO Box under r6.1 and complied with r17.13 (which concerns timing not method); the sealed judgment could not be recalled under r11.9 and could not be substantively altered under r11.10 to introduce a limitation of liability not raised at the summary judgment hearing; accordingly the defendants' applications to recall or correct the sealed judgment were dismissed; the examination may extend to both trust assets and the defendants' personal means.

Citation
[2013] NZHC 2992
Parties
Plaintiff/judgment Creditor: Sharon Louise Reynolds; Plaintiff/judgment Creditor: Robert Newcomb Leary; Plaintiff/judgment Creditor: Lynette Maree Duncan; Defendant/judgment Debtor (trustee of the Barratt Family Trust): Sharyn Dawn Barratt; Defendant/judgment Debtor (trustee of the Barratt Family Trust): Douglas John Bartlett (aka Douglas James Bartlett); Defendant/judgment Debtor (trustee of the Barratt Family Trust): Timothy Harrison
Court
High Court
Jurisdiction
New Zealand
Judgment Date
8 November 2013
Procedural Posture
Enforcement of Summary Judgment; Part 17 Examination of Judgment Debtors / Application Concerning Service and Application to Recall/correct Sealed Judgment; Examination Hearing Set
Outcome
Application to recall or correct the sealed judgment dismissed; service of the order for examination upheld; examinations to proceed; no immediate orders made against Harrison for non-attendance to permit challenge to jurisdiction
Legal Topics
Service of Process, Order for Examination, Summary Judgment, Recall and Correction of Judgment, Trustee Liability, Limitation of Liability Clause
Civil Procedure Trusts Law Contract Law Property Law Judgment Enforcement Service of Process Order for Examination Summary Judgment +3 more

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Parties

Sharon Louise Reynolds

Plaintiff/judgment Creditor

Robert Newcomb Leary

Plaintiff/judgment Creditor

Lynette Maree Duncan

Plaintiff/judgment Creditor

Sharyn Dawn Barratt

Defendant/judgment Debtor (trustee of the Barratt Family Trust)

Douglas John Bartlett (aka Douglas James Bartlett)

Defendant/judgment Debtor (trustee of the Barratt Family Trust)

Timothy Harrison

Defendant/judgment Debtor (trustee of the Barratt Family Trust)

Procedural Posture

Enforcement of Summary Judgment; Part 17 Examination of Judgment Debtors / Application Concerning Service and Application to Recall/correct Sealed Judgment; Examination Hearing Set

Legal Issues

  1. 1 Whether the orders for examination were validly served on the judgment debtors
  2. 2 Whether r17.13 requires personal service rather than service to address for service
  3. 3 Whether the sealed judgment could be recalled under r11.9 or corrected under r11.10 to give effect to clause 18 limiting trustees' liability

Ratio Decidendi

Service of the orders for examination was valid by posting to the specified PO Box under r6.1 and complied with r17.13 (which concerns timing not method); the sealed judgment could not be recalled under r11.9 and could not be substantively altered under r11.10 to introduce a limitation of liability not raised at the summary judgment hearing; accordingly the defendants' applications to recall or correct the sealed judgment were dismissed; the examination may extend to both trust assets and the defendants' personal means.

Court Disposition

Application to recall or correct the sealed judgment dismissed; service of the order for examination upheld; examinations to proceed; no immediate orders made against Harrison for non-attendance to permit challenge to jurisdiction

Orders

  • Judgment debtors were validly served with the order for examination and there has been compliance with r17.13 of the High Court Rules
  • Defendants' application to recall the judgment under r11.9 and to correct the sealed judgment under r11.10 is dismissed