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…

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] NZHC 1187
Case: [2020] NZHC 1187
Decision Date: 3 June 2020

CaseChat Overview and Summary

The case of Pool v Summerlee involved a dispute concerning the estate of Donald Pool, who had passed away, and a family trust. The first and second plaintiffs, Anthony John Pool and the RGP Family Trust, were represented by Anthony John Pool himself, who was also the executor/trustee of Donald Pool's estate. The first and second defendants, Alexander James Summerlee and Richard Benjamin Summerlee, were represented by counsel. The third defendant, Perpetual Trust Limited, was not represented. The case revolved around a property located at 17 Patten Street, Avonside, Christchurch. The defendants applied for the plaintiffs' statement of claim to be struck out, arguing that the claim was inconsistent with a previous judgment and had become academic due to the sale of the property.

The legal issues before the court included whether the plaintiffs' claim was consistent with the previous judgment and whether the proceeding had become redundant. The court had to determine if the plaintiffs' claim was an abuse of process and if the relief sought was still possible. The court also had to consider whether Perpetual Trust Limited should be added as a defendant.

The court found that the plaintiffs' claim was inconsistent with the previous judgment and had become redundant due to the sale of the property. The court held that the plaintiffs' claim was an abuse of process and that the relief sought was no longer possible. The court also determined that Perpetual Trust Limited should be added as a defendant. Therefore, the application to strike out the plaintiffs' statement of claim was granted. The court ordered that the plaintiffs pay the defendants' costs on a 2B basis together with disbursements as fixed, jointly and severally against both plaintiffs. Perpetual Trust Limited was added as a defendant in the proceeding.

Orders