Pool v Summerlee - [2019] NZCA 295

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA100/2019
[2019] NZCA 295

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

Counsel:	Appellant in person A N Riches for Respondents
Judgment: (On the papers)	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…

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 295
Case: [2019] NZCA 295
Decision Date: 10 July 2019 at 11.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Anthony John Pool against a decision of the High Court at Christchurch that removed him as a trustee of the Donald Pool Summerlee Children's Trust. The beneficiaries of the Trust, Richard Benjamin Summerlee, Alexander James Summerlee and Sarah Elizabeth Summerlee, opposed the appeal and sought a stay of execution of the judgment. The primary legal issue before the Court was whether to grant a stay of execution of the High Court judgment pending the determination of the appeal. Mr Pool's grounds for the stay application were that the High Court judgment was unfair and unjustified, and that he and the Trust beneficiaries were suffering serious financial loss as a result. The Court considered the factors relevant to granting a stay, including the delay in bringing the application, Mr Pool's inconsistent conduct, and his failure to comply with procedural requirements. The Court concluded that the various factors weighed heavily against granting the stay. In particular, the late application and Mr Pool's lack of bona fides in prosecuting the appeal were significant. The Court declined Mr Pool's application for a stay of execution of the High Court judgment.

The final orders of the Court were that the application for a stay of execution of the High Court judgment was declined. The Court did not make any orders as to costs.

Orders