Pool v Summerlee
[2019] NZCA 295
•10 July 2019 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA100/2019 [2019] NZCA 295 |
| BETWEEN | ANTHONY JOHN POOL |
| AND | RICHARD BENJAMIN SUMMERLEE, ALEXANDER JAMES SUMMERLEE AND SARAH ELIZABETH SUMMERLEE |
| Counsel: | Appellant in person |
Judgment: | 10 July 2019 at 11.30 am |
JUDGMENT OF BROWN J
The application for a stay is declined.
____________________________________________________________________
REASONS
Mr Pool applies under r 12(3)(a) of the Court of Appeal (Civil) Rules 2005 (the Rules) for an order staying execution of a judgment of the High Court delivered on 8 March 2019 pending the determination of his appeal CA100/2019. The application is opposed by the respondents.
Background
The respondents are the beneficiaries of the Donald Pool Summerlee Children’s Trust (the Trust). They commenced proceedings in the High Court at Christchurch seeking an order for the removal of the appellant as a trustee of the Trust and applied for summary judgment. In a judgment dated 8 March 2019 Associate Judge Lester granted the summary judgment application.[1] He concluded:
[39] Accordingly, on the basis that the plaintiff beneficiaries have exercised their right under Saunders v Vautier to call for the distribution of the Trust there is an order removing Anthony John Pool as trustee of the Donald Pool Summerlee Children’s Trust and appointing The New Zealand Guardian Trust Company Ltd as replacement trustee and vesting all the trust property in the new and continuing trustees, in particular the property with the Identifier CB10K/1111. Mr Pool did not consent to this order but took a measure of comfort from there being an independent trustee.
[1]Summerlee v Pool [2019] NZHC 387.
On 14 March 2019 Mr Pool filed a notice of appeal. His challenge to the judgment appears to be made on the basis that the Associate Judge’s refusal to adjourn the hearing of the application having regard to Mr Pool being “professionally medically certified as suffering from an ongoing serious medical impairment” was unlawful and in breach of the principles of natural justice.
The circumstances relating to Mr Pool’s applications for an adjournment were recorded in the judgment as follows:
[3] Late on the afternoon of 1 March 2019, Mr Pool sought an adjournment on medical grounds. The hearing of this matter had previously been adjourned on medical grounds as well. I declined the application for an adjournment and advised that reasons would follow. Mr Pool on 1 March 2019 produced a medical statement from a Dr Gamble dated 28 February 2019 which records that:
Tony is unfit to work as he is recovering from an illness. This illness has caused significant fatigue such that he feels unable to represent himself and requires an extension to enable him to find a lawyer to represent him.
[4] This is not a medical certificate that Mr Pool was unable, due to medical grounds, to represent himself.
[5] Mr Pool filed a statement of defence on 27 June 2018. This proceeding had its first call on 30 August 2018. The proceeding was then adjourned a number of times before being set down for a fixture on 4 March 2019. The hearing date was allocated to in part take into account the timeframe in a medical certificate dated 30 October 2018 where the medical practitioner said it may take several weeks or even months before Mr Pool was able to attend Court.
[6] As it happens, Mr Pool did attend Court on 4 March 2019. He renewed his application for an adjournment on medical grounds, and the application was again declined. Mr Pool remained in the Court and presented argument throughout the hearing which lasted approximately one hour fifteen minutes.
By letter dated 21 March 2019 Mr Pool was advised by the Court of the requirement to pay security for costs in the sum of $6,600 by 11 April 2019 and of the requirement in r 43 of the Rules to apply for the allocation of a hearing and file a case on appeal by 14 June 2019.
Mr Pool has not paid security for costs. Nor did he comply with the r 43 requirement by 14 June 2019. Consequently his appeal was deemed to be abandoned. However on 13 June 2019 he filed an informal application for an extension of time. That application is opposed by the respondent.
The current application
On 19 June 2019 Mr Pool filed an application for a stay of execution of the 8 March 2019 judgment. The grounds stated in the application were:
(i)An order staying the execution of the entire “Summary Judgement Decision” of Associate Judge Dale Lester, Christchurch High Court, dated: 08 March 2019, is required to protect the lawful rights, interests, and financial interests, of the Appellant (Defendant) until this appeal is finally determined.
(ii)The Appellant (Defendant) is appealing an unfair, and unjustified, decision of the High Court, and as a result the Appellant is currently the victim of the unfair court proceedings, and from the date the decision was made, and up until this appeal is heard and determined, the Appellant is personally suffering the punishment of the High Court decision, which includes serious ongoing personal financial loss, amounting to tens of thousands of dollars at present.
In addition to the Appellant, the absolutely innocent beneficiaries of the “RGP Family Trust”, of which the Appellant is a current Trustee, are now major victims of this punishment, and serous financial loss, amounting to tens of thousands of dollars at present.
An affidavit of Mr Pool filed in support of the application was critical of the Associate Judge’s refusal to grant Mr Pool’s request for an adjournment. Mr Pool went so far as to contend that the hearing was not a lawful court hearing at all. He described it in this way:
It would be better described as what is commonly known as a “Kangaroo Court” where the defendant has no rights at all, and is the subject, and victim, of much abuse and cruelty.
In response to that application the respondents filed a notice of opposition which advanced several reasons why the stay application should be declined. First it was said a stay would be of no practical effect because the orders made have already been implemented in that the Trust property has been transferred into the names of the new and continuing trustees.
Secondly, it was contended that Mr Pool’s appeal (and hence his stay application) had been overtaken by a second and related proceeding commenced by Mr Pool in the High Court at Christchurch in which consent orders were made which would be contradicted by the grant of the stay now sought. The notice of opposition explained:
(a)The decision under appeal resulted in the removal of Mr Pool as a trustee, and orders vesting the trust property in the continuing trustees (the first and second named respondents) and the new, court-appointed, professional trustee (the New Zealand Guardian Trust Company Limited);
(b)Following the lodgement of his Notice of Appeal, Mr Pool then commenced a fresh proceeding seeking to preserve a caveat he had lodged over a residential property which was a part of the trust property in question;
(c)During a hearing of Mr Pool’s application to sustain his caveat before Osborne J, Mr Pool agreed to the making of consent orders which, in acquiescence to Associate Judge Lester’s decision under appeal, consented to inter alia:
(i)The removal of Mr Pool’s caveat;
(ii)The conveyance of the said residential property to the new and continuing trustees appointed by Associate Judge Lester;
(iii)An order for possession of the property in favour of the new and continuing trustees over the said residential property from 14 June 2019;
…
Finally, noting Mr Pool’s defaults in progressing his appeal and his delay in waiting over three months to bring a stay application, the respondents challenged Mr Pool’s bona fides in the prosecution of his appeal.
In support of the notice of opposition the respondents filed a memorandum of counsel and affidavit of Alexander Summerlee, the second named respondent. The memorandum referred to the hearing before Osborne J and attached a copy of his judgment of 14 May 2019 to which were annexed the consent orders referred to in the notice of opposition.[2]
[2]Pool v Summerlee [2019] NZHC 1059.
The affidavit of Mr Summerlee stated that, subsequent to Mr Pool’s removal as a trustee and his replacement with a Court appointed trustee, the administration of the Trust had recommenced. In particular:
(a)all of the shares owned by the Trust had been sold and the cash assets transferred into the bank account of the professional trustee, Perpetual Guardian.
(b)an interim distribution to the beneficiaries had been made;
(c)a tax agent had been retained to pay overdue taxes;
(d)overdue rates on the residential property had been cleared in full; and
(e)the residential property had been conveyed to the new and continuing trustees, having been vacated by Mr Pool pursuant to a possession order.
Mr Summerlee deposed that those steps had been taken pursuant to the consent orders signed by Mr Pool. A copy of the certificate of title to the property was annexed evidencing that the conveyance to the new trustees had been completed.
In view of that information I directed Mr Pool to file a memorandum responding to the several matters raised in the respondents’ notice of opposition and memorandum.
On 26 June 2019 Mr Pool filed a lengthy memorandum (27 pages in length) and an affidavit of Mr M D Keesing. It is unnecessary to address the Keesing affidavit because it is not directly relevant to the matters on which Mr Pool was requested to respond. I simply note in passing that the affidavit is critical of the judgment the subject of Mr Pool’s appeal and contains specific allegations that Alexander Summerlee deliberately lied to and misled the Associate Judge.
Mr Pool’s memorandum also traverses a substantial amount of material which has no relevance to the issues on which he was requested to respond. However in relation to the May hearing addressed in the judgment of Osborne J Mr Pool is very critical of the process, alleging that he was bullied, belittled and intimidated by the Judge and by the lawyer acting for the defendants in that proceeding. He states:
66. AS a direct result of the arrogant and bullying way that Justice Osborne, and lawyer, Paul Cowley, were treating the Appellant, the Appellant, Anthony Pool, went into a state of severe panic, and he was effectively forced under duress to sign an agreement of consent that was handwritten by lawyer, Paul Cowley, on the spot, in the court room.
The Appellant, Anthony Pool, was not given the opportunity to seek independent professional legal advice before he was bullied into signing the consent agreement.
(Emphasis in original).
Mr Pool concluded his observations about the May hearing with a description similar to that in relation to the hearing before Associate Judge Lester.[3]
Principles to be applied on stay application
[3]At [8] above.
In determining whether or not to grant a stay under r 12(3), the Court must weigh the factors “in the balance” between the successful litigant’s rights to the fruits of a judgment and “the need to preserve the position in case the appeal is successful”.[4] Factors to be taken into account in this balancing exercise include:[5]
[4]Duncan v Osborne Building Ltd (1992) 6 PRNZ 85 (CA) at 87.
[5]Keung v GBR Investment Ltd [2010] NZCA 396, [2012] NZAR 17 at [11].
(a)whether the appeal may be rendered nugatory by the lack of a stay;
(b)the bona fides of the applicant as to the prosecution of the appeal;
(c)whether the successful party will be injuriously affected by the stay;
(d)the effect on third parties;
(e)the novelty and importance of questions involved;
(f)the public interest in the proceeding; and
(g)the overall balance of convenience.
While that list does not include the apparent strength of the appeal, that has been treated as an additional factor.
Discussion
Because steps have already been taken to implement the order the subject of the judgment under appeal, this is not a case where factors (a) or (c) are material. Nor in my view are factors (e) and (f) relevant in this case.
However there are two features of this case that I consider are of particular significance to the question whether a stay should be granted. The first is the fact that the application for a stay was not made until more than three months after the judgment under appeal and indeed after the appeal had been deemed to be abandoned for failure to comply with r 43. As this Court observed in Duncan v Osborne Building Ltd:[6]
It has long been recognised that an application for stay should be filed promptly after judgment. Our interruption of the business of the Court to hear this matter should not be taken as condoning late applications.
[6]Duncan v Osborne Building Ltd, above n 4, at 87.
Of course in the interim the steps to implement the Court’s order were taken. It is not open to Mr Pool to invite the Court to stay or unwind such steps when he has failed to move promptly in seeking a stay.
Secondly, and even more unusual, is the fact that at the hearing before Osborne J Mr Pool took steps which are inconsistent with the course which he now invites this Court to take. I find implausible his explanation that he was acting under duress at the hearing before Osborne J. If that was indeed the case then he should have taken steps to challenge the conduct of and outcome of the May hearing. However seven weeks have since passed and there is no evidence that he has endeavoured to do so.
In my view Mr Pool’s unreasonable delay, inconsistent conduct and failure to comply with this Court’s requirements concerning the advancement of his appeal are strong pointers to his lacking bona fides in relation to the prosecution of his appeal.
I consider that the various factors “in the balance” weigh heavily in favour of the application for a stay being declined.
Result
The application for a stay is declined.
Solicitors:
Saunders & Co, Christchurch for Respondents
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