CLEMENTS v CLEMENTS [2019] NZHC 204

CLEMENTS v CLEMENTS [2019] NZHC 204 [19 February 2019]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECIV-2018-488-106[2019] NZHC 204UNDER the Trustee Act 1956BETWEEN KEVIN ALLEN CLEMENTSPlaintiffAND PHYLLIS IRENE CLEMENTS as Trusteeof the ERIC AND PHYLLIS CLEMENTSFAMILY TRUSTDefendantOn the papersAppearances: AG Jackson for PlaintiffJudgment: 19 February 2019SUPPLEMENTARY JUDGMENT OF TOOGOOD JThis judgment was delivered by me on 19 February 2019 at 3.00 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy Registrar[1] On 15 October 2018, I issued a judgment in which I made the following ordersin accordance with a draft submitted by counsel:1(a) Pursuant to section 51 of the Trustee Act 1956, Phyllis Irene Clementsshall cease to be the Trustee of the Eric and Phyllis Clements FamilyTrust forthwith;(b) Simultaneously with part (a) of the Order, and pursuant to section 51 ofthe Trustee Act 1956, the Applicant and YHPJ Trustees (2018) Limitedbe appointed as Trustees of the Estate of the Eric and Phyllis ClementsFamily Trust.(c) Simultaneously with parts (a) and (b) of the Order, and pursuant tosection 47 of the Trustee Act 1956, all property in the Eric and PhyllisClements Family Trust be vested in the Applicant and YHPJ Trustees(2018) Limited as Trustees of the said Trust; and(d) The costs of the proceeding shall be met by the Trust.[2] At [4], I said that I would be prepared to make an order vesting the Trust assets,including the property at 1274 State Highway 1, RD2, Hikurangi, in the new trusteesbut the orders omitted specific mention of the property.[3] On 22 January 2019, the solicitor for the trustees received a requisition fromthe Registrar-General of Land pursuant to s 37(1)(b) of the Land Transfer Act 2017,directing the trustees to obtain an order from the Court which refers to the land thesubject of the orders by reference to either a legal description or a record of titlereference.[4] The requisition is properly served. The absence of a specific reference to theland renders the orders unfit for the intended purpose of enabling the transfer of theland to the new trustees.1 Clements v Clements [2018] NZHC 2657.[5] I cannot recall the earlier judgment under r 11.9 of the High Court Rules 2016,because it has been sealed, but I have the power under r 11.10 to correct an accidentalslip or omission. Rule 11.10(1)(b) provides that a judgment or order "may be correctedby the court if it is drawn up so that it does not express what was decided andintended." Further, the Court has an inherent power to correct errors, in exceptionalcircumstances, in the interests of justice.2[6] I issue this Supplementary Judgment accordingly.[7] To make the necessary corrections to the original orders, the orders atparagraph [5] of my judgment of 15 October 2018 are recalled and the followingorders are made:(a) Pursuant to section 51 of the Trustee Act 1956, Phyllis Irene Clementsshall cease to be the trustee of the Eric and Phyllis Clements FamilyTrust forthwith.(b) Simultaneously with Order (a) above, and pursuant to section 51 of theTrustee Act 1956, Kevin Allen Clements and YHPJ Trustees (2018)Limited are appointed as trustees of the Eric and Phyllis ClementsFamily Trust.(c) Simultaneously with Orders (a) and b) above, and pursuant to s 47 ofthe Trustee Act 1956, all property in the Eric and Phyllis ClementsFamily Trust, including all of the land at 1274 State Highway 1, RD2,Hikurangi, comprised in Record of Title Identifier No. 132015, NorthAuckland Land Registration District, being Lot 1 on Deposited Plan332180, shall be vested in the Applicant and YHPJ Trustees (2018)Limited as Trustees of the said Trust.2 R v Smith [2003] 3 NZLR 617 (CA) at [28]-[36].(d) The cost of the proceeding shall be shall be met by the Trust...............................................Toogood J