SLOOTS v SLOOTS [2020] NZHC 1696

SLOOTS v SLOOTS [2020] NZHC 1696 [15 July 2020]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYI TE KŌTI MATUA O AOTEAROAWHAKATŪ ROHECIV-2019-442-62[2020] NZHC 1696UNDER THE Administration Act 1969 and the Trustee Act1956IN THE MATTER of the Estate of CORNELIA ANTONIAMARIE SLOOTSBETWEEN JENNIFER MARY ANNE SLOOTSPlaintiffAND JENNIFER MARY ANNE SLOOTS andROSE-MARIE HUBERTHA JOHANNASPIJKERMAN, as Trustees and Executors ofthe estate of Cornelia Antonia Marie SlootsDefendantsRepresentation: N McKessar for PlaintiffR H J Spijkerman (second-named defendant) in personJudgment: 15 July 2020(Determined on the papers)RECALL JUDGMENT OF OSBORNE JThis judgment was delivered by me on 15 July 2020 at 10.30 am pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarDate:[1] On 13 July 2020, this Court issued a judgment, upon formal proof, grantingthe plaintiff orders as to the removal of the former administrators of the Estate ofCornelia Sloots and the appointment of new administrators/trustees.11 Sloots v Sloots [2020] NZHC 1670.[2] The order made by the Court named The New Zealand Guardian TrustCompany Ltd and Perpetual Trust Ltd (trading as Perpetual Guardian) as administratorof the estate and also trustees of the estate. The identification of the newadministrators/trustees in those terms flowed from the form of consent provided by"Perpetual Guardian" and was, in accordance with counsels' submission, contained ina memorandum dated 19 June 2020.The error[3] It transpires that the appointment made by the Court is not what PerpetualGuardian's solicitor desired. Mr McKessar records in a memorandum now filed:On liaising with legal counsel from the Perpetual Guardian it is apparent thatwhilst the Perpetual Guardian (as a trading entity) can still act as per theirconsents, having both named companies in the application will cause aproblem.The correct entity which counsel should have requested to be appointed isPerpetual Trust Ltd (trading as "Perpetual Guardian").Remedy[4] Mr McKessar seeks a correction of the judgment alternatively pursuant to theslip-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 sameas the current judgment because "Perpetual Guardian" will act as administrators andtrustees.Discussion[6] I am not satisfied that it is appropriate to treat the present situation as fallingwithin 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 whichis 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 onProcedure, for correction under the slip-rule of omissions arising from theinadvertence of a legal adviser or a slip made by a party.2 I view those authorities asnot directly applicable when, as here, the party which consents to appointmentidentifies 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'smemorandum is that a legal adviser within the appointed entities has now appreciatedthat the joint appointment will "cause a problem".[8] That, of course, does not mean that the Court is unable to deal with the problemnow identified. As relied upon by Mr McKessar, r 11.9 permits a Judge to recall ajudgment 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 iscontained in the judgment of Wild CJ in Horowhenua County v Nash (No 2), wherehis Honour stated:3Generally speaking, a judgment once delivered must stand for better or worsesubject, of course, to appeal. Were it otherwise there would be greatinconvenience and uncertainty. There are, I think, three categories of cases inwhich a judgment not perfected may be recalled - first, where since the hearingthere has been an amendment to a relevant statute or regulation or a newjudicial decision of relevance and high authority; secondly, where counselhave failed to direct the Court's attention to a legislative provision orauthoritative decision of plain relevance; and thirdly, where for some othervery 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 theadministration of an estate in the interests of the beneficiaries. It would be contrary tojustice for the plaintiff and the beneficiaries to leave in place an appointment whichthe 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 arosethrough the fact that Perpetual Guardian states in the form of letter which contains itsinitial consent that "Perpetual Guardian is a trading name of The New ZealandGuardian Trust Company Ltd and Perpetual Trust Ltd".[13] Mr McKessar's memorandum indicates that the solicitor from PerpetualGuardian has informed him that "Perpetual Trust Ltd (alone) also trades as PerpetualGuardian".[14] In a situation in which the Court has been called upon to revisit a judgmentcarefully considered and prepared, it is appropriate to record the Court's concern thatthe trading style adopted by the two separate companies jointly but, apparently, alsoby those companies individually, is apt to lead to confusion, precisely as it has in thiscase. Given the frequency with which "Perpetual Guardian" is involved with estates,including through Court appointment, the Court invites the relevant entities toreconsider their trading style so as to avoid confusion for the Court and any otherentities 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 RecallJudgment with the ordered appointments still taking effect from 13 July2020.Osborne JSolicitors:Hardy-Jones Clark, BlenheimCopy to: R-M H J Spijkerman, Christchurch (self-represented Defendant)