Pool v New Zealand Guardian Trust Company Limited

[2019] NZCA 571

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA310/2019
 [2019] NZCA 571

BETWEEN	ANTHONY JOHN POOL AS TRUSTEE OF ESTATE OF DONALD POOL First Applicant ANTHONY JOHN POOL AS TRUSTEE OF R G P FAMILY TRUST Second Applicant
AND	NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED, ALEXANDER JAMES SUMMERLEE AND RICHARD BENJAMIN SUMMERLEE AS TRUSTEES OF THE DONALD POOL SUMMERLEE CHILDREN’S TRUST Respondents

Court:	Cooper and Collins JJ
Counsel:	Applicant in person P A Cowey for Respondents
Judgment: (On the papers)	19 November 2019 at 3.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to file an appeal is declined.

BThe application for an order to stay the execution of the High Court judgment is declined.

CNo order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

1. Two applications have been filed by Mr Pool:

   (a)an application under r 29A of the Court of Appeal (Civil) Rules 2005 (the Rules) for an extension of time to file an appeal against a High Court judgment of Osborne J dated 14 May 2019;[1] and

   (b)an application for an order staying execution of the High Court’s judgment.

Background

[1]Pool v Summerlee [2019] NZHC 1059.

1. Mr Pool was a trustee of the Donald Pool Summerlee Children’s Trust (the Trust).  The respondents are the current trustees of the Trust.

2. On 8 March 2019, Associate Judge Lester issued a summary judgment in favour of the respondents removing Mr Pool as a trustee of the Trust and vesting all of the Trust property in the remaining trustees.[2]  The Trust property includes a property at Patten Street, Christchurch.  Mr Pool occupied that property.

   [2]Summerlee v Pool [2019] NZHC 387. The Associate Judge also appointed New Zealand Guardian Trust Co Ltd as a trustee.

3. Following the Associate Judge’s decision, Mr Pool registered a caveat over the Patten Street property.  An application for an order that the caveat not lapse was then brought before Osborne J on 14 May 2019 who made orders by consent including, that the caveat be removed forthwith and that Mr Pool vacate the property by 14 June 2019.

4. On 26 June 2019, this Court received a notice of appeal dated 20 June 2019.  In order to have complied with the time limits prescribed in r 29, Mr Pool’s notice of appeal needed to have been filed no later than 12 June 2019.

Grounds for extending time to appeal

1. The grounds for Mr Pool’s application under r 29A may be distilled to the following three points:

   (a)He says he did not receive Osborne J’s written decision until 22 May 2019.

   (b)He says he suffers serious ill health that caused him to not file his notice of appeal within time.

   (c)The decision he wishes to appeal is unfair.

Grounds of stay application

1. The application to stay the High Court judgment is said to be necessary in order to:

   (a)protect Mr Pool’s rights; and

   (b)provide him with the opportunity to challenge what he says is an unfair decision.

Jurisdiction

1. This Court has previously held that the proper course to challenge a consent order that has been made in the High Court is to first apply to the High Court to set the order aside.[3]  This Court said:[4]

   We are satisfied that if the appellants wish to challenge the consent order, their proper course is to pursue an application to set it aside in the High Court.  This Court has no jurisdiction in the context of this appeal to set aside a consent order made in the High Court.  Nor is it open for the appellants to raise a question on appeal about the interpretation of the agreement for sale and purchase when they have consented to an order for specific performance.  The appeal is dismissed accordingly.

   [3]King David Investments Ltd v Zhang [2016] NZCA 421 and the authorities cited therein.

   [4]At [4].

2. There is another potential problem arising from s 56(3) of the Senior Courts Act 2016, which provides:

   (3)No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.

3. Section 4(1) of the Senior Courts Act defines an interlocutory application as “any application to the High Court in any civil proceedings … for some relief ancillary to that claimed in a pleading”.  It is arguable the application that came before Osborne J was ancillary to the proceedings that were the subject of the summary judgment issued against Mr Pool on 8 March 2019.

4. A further jurisdiction issue concerns Mr Pool’s stay application.  Although r 12 gives concurrent jurisdiction to this Court, and the Court being appealed from to order a stay, it is this Court’s practice not to accept an application for a stay unless it is first made in the lower Court or unless there are special circumstances justifying departure from this practice.[5]  There are no special circumstances in this case.

Disposition

[5]M v Hawke’s Bay Standards Committee [2014] NZCA 40, (2014) 21 PRNZ 717 at [10]–[11]; Salem Ltd v Top End Homes Ltd (2005) 18 PRNZ 122 (CA) at [15]; and Gibson v Official Assignee [2016] NZCA 93 at [6].

1. Mr Pool has not applied to the High Court to set aside its consent orders nor to stay execution of its judgment.  He should have done so. 

2. It will be for the High Court to determine whether or not to grant Mr Pool an extension of time to apply to set aside the High Court’s consent orders.  If the High Court grants that application, it will also need to determine Mr Pool’s applications in the first instance.

3. In these circumstances, Mr Pool’s applications are declined. 

4. We make no order for costs.

Solicitors:
Parry Field Lawyers, Christchurch for Respondents