Pool v Summerlee

[2020] NZHC 1187

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-194

[2020] NZHC 1187

IN THE MATTER

of the Administration Act 1969,

Trustee Act 1956, Land Transfer Act 2017, Inherent Jurisdiction of the High Court, and all amendments thereto

IN THE MATTER

of the Estate of Donald Pool (Deceased)

IN THE MATTER

of the RGP Family Trust

IN THE MATTER

of land title: CB10K/1111, legal description:

Lot 3 Deposited Plan 12599
(17 Patten Street, Avonside, Christchurch)

BETWEEN

ANTHONY JOHN POOL as

Executor/Trustee of the Estate of Donald Pool

First Plaintiff

AND

ANTHONY JOHN POOL as Trustee of the RGP Family Trust

Second Plaintiff

AND

ALEXANDER JAMES SUMMERLEE

First Defendant

AND

RICHARD BENJAMIN SUMMERLEE

Second Defendant

AND

PERPETUAL TRUST LIMITED

Third Defendant

Hearing:

28 May 2020

(By way of telephone conference)

POOL v SUMMERLEE AND PERPETUAL TRUST LIMITED [2020] NZHC 1187 [3 June 2020]

Counsel:

P A Cowey and D S G G Youssif for Defendants

A J Pool (self-represented First and Second Plaintiffs) – no attendance

Judgment:

3 June 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 3 June 2020 at 11.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 3 June 2020

[1]    On 21 June 2019, the defendants applied for orders striking out the plaintiffs’ statement of claim on the grounds that the substance of the plaintiffs’ claim was inconsistent with a judgment of the Court dated 14 March 2019, Summerlee v Pool.1 In that decision, Mr Pool was removed as a trustee of the Donald Pool Summerlee Childrens Trust (“the Trust”) which owned a property in which Mr Pool had been living. Further, at a more practical level, this proceeding had become academic as consent orders2 had been made concerning a caveat that Mr Pool had lodged against the property owned by the Trust, being the property subject to this proceeding. The consent order made in the caveat proceedings required Mr Pool to vacate the property and for it to be sold and 25 per cent of the sale proceeds to be held subject to further order of the Court.

[2]    Mr Pool appealed the 14 March 2019 decision.3 As I recorded in a minute of 13 November 2019, Mr Pool filed a memorandum in this proceeding appearing to accept that this proceeding stood or fell on the outcome of his appeal.4

[3]    On 22 April 2020, the Court of Appeal declined Mr Pool’s second application for an extension of time to apply for the allocation of a hearing date in respect of his appeal relating to the 14 March 2019 judgment.5 As a consequence of that declinature, the Court of Appeal advised Mr Pool’s appeal was abandoned pursuant  to r 43 of  the Court of Appeal (Civil) Rules 2005.

[4]    With that step having been taken, the defendants sought to have their strike out application brought on.

[5]    The strike out application was adjourned to the list on 30 April 2020, but that list could not proceed because of the COVD-19 level 4 lockdown. A further telephone conference was allocated for 28 May 2020.

1      Summerlee v Pool [2019] NZHC 387.

2      Pool v Summerlee [2019] NZHC 1059.

3      Summerlee v Pool, above n 1.

4      Pool v Summerlee HC Christchurch CIV-2019-409-194, 13 November 2019.

5      Pool v Summerlee [2020] NZCA 107.

[6]    Prior to that telephone conference, Mr Pool notified the Court that he had instructed solicitors. The firm referred to advised that while they had been in discussions with Mr Pool, they had not been formally engaged.

[7]    In a letter dated 26 May 2020, delivered to the Registrar of the High Court, Mr Pool said he was unable to represent the RGP Family Trust which he says is the entity with an interest in the subject property, due to a “long term medical illness and current Cardio Thoracic surgery.” Mr Pool produced a letter from a surgeon confirming that his pre-admission would commence at 7 am on Tuesday 2 June 2020.

[8]    Given the telephone conference to address the strike out application was on 28 May 2020, and there being no medical evidence that Mr Pool could not attend     a telephone conference, I directed that the telephone conference was to proceed. The operator was unable to connect Mr Pool. Mr Cowey and Ms Youssif appeared for the defendants and renewed their application for strike out.

[9]    For the reasons I set out below, the application to strike out the plaintiffs’ statement of claim is granted.

[10]   With the sale of the property subject to this proceeding having taken place, it appeared to  me that the proceeding had become redundant  and in the  minute of    13 November 2019, I directed that if Mr Pool considered there was still life in this proceeding, that is, there were applications still to be dealt with, or there were orders he sought in this proceeding, then he was to specify those by way of memorandum.6 Mr Pool did not do so.

Reliance on r 15.1 of the High Court Rules 2016

[11]   The principal submission for the defendants is that there is no relief capable of being granted sought in  the statement of claim.   The orders are sought  in respect   of a property that has now been sold.

6      Pool v Summerlee, above n 3.

[12]   Further, Mr Pool continues in this proceeding to assert that an estate of which he was once an executor was the lawful owner of the property in question. That issue has already been determined against him in Summerlee v Pool.7

[13]   Mr Pool’s present proceeding is therefore a collateral attack on that earlier judgment. Accordingly, it is an abuse of process which qualifies it to be struck out under r 15.1(1)(d) of the High Court Rules 2016.

[14]   Both conclusions are sufficient to deal with the application. The balance of the matters raised in the defendants’ memorandum in support of strike out also have merit.

Order

[15]Accordingly, there is an order striking out the plaintiffs’ statement of claim.

Costs

[16]The defendants seek costs.

[17]Costs should follow the event.

[18]   Accordingly, there is an order that the plaintiffs are to pay to the defendants costs on a 2B basis together with disbursements as fixed.

[19]   That order is made jointly and  severally  against  both  plaintiffs,  that  is,  Mr Anthony John Pool personally, and the  RGP Family Trust  in  which  capacity Mr Pool purported to sue as second plaintiff. While it is unclear if that Trust actually exists, given Mr Pool sued on behalf of that Trust, it is appropriate that both plaintiff parties be jointly and severally liable for the costs order.

[20]   Counsel for the defendants has sought Perpetual Trust Limited be added as a defendant.

7      Summerlee v Pool, above n 1.

[21]   Pursuant to an order made on 8 October 2019 by Lang J in CIV-2019-404-2019 the trusteeship of the Donald Pool Summerlee Childrens Trust was vested in Perpetual Trust Limited.8  Accordingly, there is an order  adding  Perpetual Trust Limited  as   a defendant.

Associate Judge Lester

Solicitors:
Parry Field, Christchurch

Copy to: Mr A J Pool, self-represented plaintiffs

8      The  New  Zealand  Guardian  Trust  Company  Limited,  HC  Auckland  CIV-2019-404-2019,   8 October 2019.