Pool v Summerlee
[2020] NZCA 107
•22 April 2020 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA100/2019 [2020] NZCA 107 |
| BETWEEN | ANTHONY JOHN POOL |
| AND | RICHARD BENJAMIN SUMMERLEE, ALEXANDER JAMES SUMMERLEE AND SARAH ELIZABETH SUMMERLEE AS BENEFICIARIES OF THE DONALD POOL TRUST |
| Court: | Brown and Courtney JJ |
Counsel: | Appellant in person |
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. In granting that application this Court stated:
[13] The factors that need to be considered when assessing Mr Pool’s application weigh against him. We are, however, in the overall interests of justice, willing to extend Mr Pool one opportunity to get the appeal on track. We do so primarily because Mr Pool is self-represented.
[14] Mr Pool is to file the case on appeal and apply for a hearing date within 20 working days of the day of delivery of this decision. Failure to comply with this timetable will result in Mr Pool’s appeal being deemed to be abandoned.
Discussion
Mr Pool submits that since the grant of the first extension of time he has been proactive in preparing the case on appeal. However he contends that he has a number of applications awaiting determination by either the High Court or this Court and that he is reliant on information he anticipates receiving as a result of those applications in order to prepare the case on appeal. The various applications he has made include seeking full disclosure from the respondents of documents including the deed of trust, the deed appointing him as a trustee of the Trust, the Trust’s bank accounts, Inland Revenue Department records and other financial records concerning the Trust.
However, as the respondents submit, the discovery sought is at odds with the basis of the appeal itself which is advanced on the ground that the Associate Judge erred in declining to grant a further adjournment of the summary judgment hearing on account of Mr Pool’s alleged medical impairment. The notice of appeal does not address errors of fact or law or issues concerning the adequacy of disclosure. The respondents make the further point that Mr Pool only raised this concern about disclosure some seven months after the filing of his appeal.
It is now more than a year since the appeal was filed and almost six months have elapsed since the expiry of the first extension of time granted by this Court. We are not satisfied that there is any justification for the delay by Mr Pool in complying with the requirements of r 43. The explanation advanced that he has been waiting for other applications to be determined would suggest that he has consciously failed to comply with this Court’s judgment on his first application for extension knowing that this would result in his appeal being deemed abandoned.
Indeed it is fair to infer from an application filed in this Court in the intervening period on 10 February 2020 that Mr Pool has no genuine intention to prosecute his appeal. Among the orders sought in that application was an adjournment of the appeal “sine die” until Mr Pool has recovered from his claimed medical condition and has been declared medically fit and able to actively participate in Court proceedings again. In this Court’s judgment of 3 March 2020 declining that and other applications then made, this Court said there is no justification for the appeal being adjourned indefinitely.[6]
[6]Pool v Summerlee [2020] NZCA 35.
We do not consider that the circumstances justify a further extension of time. The respondents seek costs on this application. Were this a first application for extension we would have not made a costs order. However the present application was made following the failure to comply with an earlier extension and where the Court stated that a failure to comply with the timetable would result in the appeal being deemed to be abandoned. In these circumstances we consider that a costs order is appropriate.
Result
The application for an extension of time to apply for allocation of a hearing date and to file a case on appeal is declined.
The applicant is to pay costs to the respondents for a standard application on a band A basis with usual disbursements.
Solicitors:
Saunders & Co, Christchurch for Respondents
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