Pool v Summerlee - [2020] NZCA 35

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA100/2019
[2020] NZCA 35

BETWEEN	ANTHONY JOHN POOL Appellant
AND	RICHARD BENJAMIN SUMMERLEE, ALEXANDER JAMES SUMMERLEE AND SARAH ELIZABETH SUMMERLEE Respondents

Court:	French and Brown JJ
Counsel:	Appellant in person A N Riches for Respondents
Judgment: (On the papers)	3 March 2020 at 12.30 pm

JUDGMENT OF THE COURT

Application for appointment of legal counsel and other orders is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

On 8 March 2019 Associate Judge Lester made an order removing Mr Pool as a trustee of the Donald Pool Summerlee Children’s Trust (the Trust) and appointing the New Zealand Guardian Trust Company Ltd as replacement trustee.[1] Mr Pool appeals against that judgment.
[1]Summerlee v Pool [2019] NZHC 387.
By memorandum dated 10 February 2020, in reliance on what is described as a serious respiratory medical condition, Mr Pool sought:
(a)the appointment of legal counsel to assist him;
(b)the appointment of a litigation guardian to assist him for the purposes of the appeal; and
(c)an adjournment of the appeal “sine die” until Mr Pool has recovered from his medical condition and has been declared medically fit and able to actively participate in Court proceedings again.
The respondents oppose the application.

Background

Mr Pool was one of three trustees of the Trust. The beneficiaries of the Trust invoked the rule in Saunders v Vautier[2] 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. Mr Pool filed this appeal on 14 March 2019.
[2]Saunders v Vautier (1841) 4 Beav 115, 49 ER 282.
The Trust owned a property at 17 Patten Street, Christchurch, which, according to the judgment, 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.[3]
[3]Pool v Summerlee [2019] NZHC 1059.
By letter dated 21 March 2019, Mr Pool was advised by this Court of the requirement to pay security for costs for the appeal in the sum of $6,600 by 11 April 2019 and of the requirement in r 43 of the Court of Appeal (Civil) Rules 2005 to apply for the allocation of a hearing and to file a case on appeal by 14 June…

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 35
Case: [2020] NZCA 35
Decision Date: 3 March 2020 at 12.30 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Anthony John Pool appeals against an order made by Associate Judge Lester removing him as a trustee of the Donald Pool Summerlee Children's Trust and appointing the New Zealand Guardian Trust Company Ltd as the replacement trustee. The respondents are the other trustees of the Trust, Richard Benjamin Summerlee, Alexander James Summerlee, and Sarah Elizabeth Summerlee. The appeal concerns the validity of the order removing the appellant as a trustee and appointing the replacement trustee.

The legal issues before the court were whether the appellant should be granted an indefinite adjournment of the appeal, the appointment of legal counsel to assist him, and the appointment of a litigation guardian due to the appellant's medical condition. The court was required to consider the appellant's medical condition and its impact on his ability to participate in the appeal, as well as the need for legal representation and a litigation guardian.

The court declined to grant an indefinite adjournment of the appeal as the judgment removing the appellant as a trustee had been implemented, and a stay of execution had already been declined. Regarding the appellant's request for legal counsel, the court noted that it does not appoint legal counsel to assist parties in civil cases but may appoint counsel to assist the court itself on questions of law. In this case, the court did not find it necessary to appoint counsel to assist the appellant. As for the appointment of a litigation guardian, the court found that the appellant did not satisfy the criteria for being considered an incapacitated person and that he was capable of understanding the issues and giving instructions to progress the appeal.

As a result, the court declined the appellant's application for the appointment of legal counsel and other orders. The further application for an extension of time will be determined on the papers by two judges. The court set a deadline for the appellant to file further submissions in support of his application and for the respondents to file their submissions in opposition.

Orders