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Justices Randerson, French, and Kos of the New Zealand Court of Appeal today refused to grant an application to correct errors in a sealed Judgment of the Court, recently found to be materially different from the actual decision of the Court.
The original decision and orders of the Court in 2003 awarded costs to the executors of a deceased estate, however the disputed judgment issued a week later differed from the decision by recording the costs were awarded to one of the parties in their personal capacity.
The Court of Appeal rules provide for the correction of a judgment or order which is drawn up in a way that does not express what was actually decided and intended. The defective judgment before the Court differed from the decision and allowed one of the executors to bring personal bankruptcy proceedingsagainst a beneficiary of the estate.
The Court said in its judgment- “Some form of error appears to have occurred given the discrepancy between the reasons for judgment and the sealed order but we are unable to determine some 12 years after the event how this came about or which version is correct.”
Conversely in its conclusion the Court said, “As we see it the costs order could only have been in favour of the parties in their personal capacity”
This is an extraordinary example of scrambled logic, which firstly records that the Court cannot decide whether or not its own decision and order is correct or if the sealed judgment prepared by lawyer Roger Chapman is correct, then peversely in the final paragraph upholds the contested judgment by ruling the costs could only be in favour of the parties in their personal capacity.
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Cut a long story short Randerson J recorded in his minutes that, and I quote "Indeed, the appellants have insisted that their application be treated as having been made under r 5(2).
Problem is I never filed the application in reliance of the r5(2) of the Court of Appeal Rules. This was made very clear in the application itself and a followup email prior to Randerson's minutes.
When I requested Randerson J to correct his error and record the correct fact as to which rule the application had been filed under , that being r5(1) which reads "
5(1)The Court may give any directions that seem necessary for the just and expeditious resolution of any matter that arises in a proceeding" Randerson J refused to amend his minutes.
When I requested again for Randerson J to correct his minutes to record correct fact his reply via email was " It is immaterial whether the appellants asked that their application be considered under Rule 5(1) or (2)."
So I suppose the moral of the story is because it is immaterial as to what rule your application relies upon, why use any rules at all!!!