Pool v Summerlee - [2019] NZCA 453

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA100/2019
[2019] NZCA 453

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

Court:	Clifford and Collins JJ
Counsel:	Applicant in person A N Riches for Respondents
Judgment: (On the papers)	24 September 2019 at 3.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for allocation of a hearing date and to file the case on appeal is granted. Mr Pool is to apply for a hearing date and file the case on appeal within 20 working days of the day of delivery of this decision.
BThere is no order as to costs.

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REASONS OF THE COURT

(Given by Collins J)

Mr Pool has filed a notice of appeal from a summary judgment issued against him by Associate Judge Lester on 8 March 2019.[1]
[1]Summerlee v Pool [2019] NZHC 387.
In his judgment, the Associate Judge removed Mr Pool as a trustee of the Donald Pool Summerlee Children’s Trust (the Trust), and invested the Trust property in the remaining two trustees, Richard Summerlee and Alexander Summerlee and in a new trustee, the New Zealand Guardian Trust Company Ltd. The beneficiaries of the Trust — Richard Summerlee, Alexander Summerlee and Sarah Summerlee (the Summerlees) — are the respondents in these proceedings.
Mr Pool filed his notice of appeal on 14 March 2019, well within time. He has, however, not prosecuted the appeal with the diligence required by the Court of Appeal (Civil) Rules 2005.
On 13 June 2019, Mr Pool filed an application under r 43 for an extension of time to file a case on appeal and apply for a fixture. That application is opposed by the Summerlees on the basis that:
(a)Mr Pool has not adequately explained the reasons for his delay.
(b)Mr Pool has not paid the security for costs on appeal set by this Court.
(c)The appeal is devoid of merit.
While this application was made informally to the Registrar under r 43(1B), none of the grounds for an extension under that rule were met. Therefore, the application will be treated as an interlocutory application under r 43(2). The grounds that govern an application under r 43 are well settled.[2]

Reasons for delay

[2]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.

Mr Pool maintains the reasons for his delay relate to his medical condition. He says he is suffering severe fatigue and conditions that affect his chest and respiratory system.
Mr Pool supports his explanations about his medical condition with a letter from Dr Hlavac dated 30 October 2018. That letter confirms:
(a)Mr Pool was admitted into Dr Hlavac’s care in September 2018.
(b)Mr Pool has “ongoing” issues affecting his chest.
(c)Mr Pool has limited physical capacity.
It is striking Mr Pool relies on a medical certificate that is now almost 12 months old. While we are sure he probably does…

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 [2019] NZCA 453
Case: [2019] NZCA 453
Decision Date: 24 September 2019 at 3.30 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an application by Anthony John Pool for an extension of time to apply for allocation of a hearing date and to file the case on appeal. The appeal was against a summary judgment issued by Associate Judge Lester on 8 March 2019, which removed Mr Pool as a trustee of the Donald Pool Summerlee Children’s Trust and invested the Trust property in the remaining trustees. The beneficiaries of the Trust, Richard Summerlee, Alexander Summerlee, and Sarah Summerlee, opposed the application for an extension of time on various grounds.

The primary legal issue before the Court of Appeal was whether Mr Pool's application for an extension of time to file a case on appeal and apply for a fixture should be granted. The Court examined the reasons for delay, the length of the delay, and whether the proposed appeal had any genuine arguability. In considering these issues, the Court also took into account that Mr Pool was self-represented.

The Court of Appeal found that while the reasons for Mr Pool's delay were not adequately explained, the application for an extension of time would be granted in the interests of justice. The Court was willing to extend Mr Pool one opportunity to get the appeal on track, primarily because he was self-represented. Mr Pool was required to file the case on appeal and apply for a hearing date within 20 working days of the delivery of this decision. Failure to comply with this timetable would result in Mr Pool's appeal being deemed to be abandoned. There was no order as to costs.

Orders