Pool v Summerlee - [2020] NZCA 107

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA100/2019
[2020] NZCA 107

BETWEEN	ANTHONY JOHN POOL Appellant
AND	RICHARD BENJAMIN SUMMERLEE, ALEXANDER JAMES SUMMERLEE AND SARAH ELIZABETH SUMMERLEE AS BENEFICIARIES OF THE DONALD POOL TRUST Respondents

Court:	Brown and Courtney JJ
Counsel:	Appellant in person A N Riches for Respondents
Judgment:	22 April 2020 at 3.00 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for allocation of a hearing date and to file a case on appeal is declined.
BThe applicant is to pay costs to the respondents for a standard application on a band A basis with usual disbursements.

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REASONS OF THE COURT

(Given by Brown J)

Introduction

On 14 March 2019 Mr Pool filed an appeal from a decision granting summary judgment against him delivered on 8 March 2019.[1] He now applies under r 43 of the Court of Appeal (Civil) Rules 2005 (the Rules) for an extension of time to file the case on appeal and to apply for the allocation of a hearing date. This is his second such application, an earlier application having been granted on 24 September 2019.[2]

Background

[1] Summerlee v Pool [2019] NZHC 387.

[2]Pool v Summerlee [2019] NZCA 453.

Mr Pool was one of three trustees of the Donald Pool Summerlee Children’s Trust (the Trust). The beneficiaries of the Trust invoked the rule in Saunders v Vautier[3] to bring forward the vesting date and terminate the Trust on the grounds that they were of full age and capacity and collectively held an absolute vested interest in the Trust property. The beneficiaries applied by way of summary judgment for an order removing Mr Pool. As Mr Pool did not dispute that the beneficiaries were entitled to invoke the rule in Saunders v Vautier, Associate Judge Lester ruled that he did not have a defence to the claim and that an order was appropriate.
[3]Saunders v Vautier (1841) 4 Beav 115, 49 ER 282.
The Trust owned a property at 17 Patten Street, Christchurch, which, according to the respondents, had been occupied by Mr Pool since approximately 12 December 2015. Mr Pool lodged a caveat against the title to the property. However on his application for an order that the caveat not be removed, on 14 May 2019 a consent order was made by Osborne J directing that the caveat be removed forthwith and that Mr Pool vacate the property by 14 June 2019.[4]
[4]Pool v Summerlee [2019] NZHC 1059.
On 19 June 2019 Mr Pool filed an application for a stay of execution of Associate Judge Lester’s judgment. That application was declined on 10 July 2019.[5]
[5]Pool v Summerlee [2019] NZCA 295.
Mr Pool failed to file a case on appeal within the time prescribed in r 43, namely by 14 June 2019. Mr Pool’s first application for an extension of time was filed on 13 June 2019.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pool v Summerlee

Details

AGLC: Pool v Summerlee [2020] NZCA 107
Case: [2020] NZCA 107
Decision Date: 22 April 2020 at 3.00 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application from Anthony John Pool against Richard Benjamin Summerlee, Alexander James Summerlee, and Sarah Elizabeth Summerlee as beneficiaries of the Donald Pool Trust. The applicants sought an extension of time to file a case on appeal and to apply for the allocation of a hearing date. The appeal in question stemmed from a summary judgment granted in favor of the respondents, who were the beneficiaries of the Trust, and sought to remove Mr. Pool as a trustee. Mr. Pool had previously been granted an extension of time by the court, but failed to comply with the conditions set out in the initial order.

The legal issue before the court was whether Mr. Pool should be granted a further extension of time to file his case on appeal and to apply for the allocation of a hearing date. The court considered whether the delay in filing the case on appeal was justified, and whether Mr. Pool had any genuine intention to prosecute the appeal.

The court held that the circumstances did not justify a further extension of time. The court found that Mr. Pool had consciously failed to comply with the requirements of the court's initial order, and that he had not made any genuine effort to prepare the case on appeal. The court also noted that Mr. Pool had made an application for an adjournment of the appeal "sine die" until he had recovered from his claimed medical condition, which the court had declined. The court considered that a costs order was appropriate given the failure to comply with the earlier extension and the lack of justification for the delay.

The court declined the application for an extension of time to apply for allocation of a hearing date and to file a case on appeal. The applicant was ordered to pay costs to the respondents for a standard application on a band A basis with usual disbursements.

Orders