Pool v Summerlee - [2020] NZHC 528

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-194

[2020] NZHC 528

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 – Deposit 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

Counsel: Mr A J Pool (self-represented First and Second Plaintiff) P A Cowey for Defendants

Judgment:

17 March 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 17 March 2020 at 3.00pm
pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar / 17 March 2020

POOL v SUMMERLEE [2020] NZHC 528 [17 March 2020]

[1] Mr Anthony Pool has filed two documents; one dated 10 February 2020, but date stamped by the Court 26 February 2020, and the other dated 21 February 2020, but date stamped by the Court 3 March 2020.

[2] In the first memorandum, Mr Pool requests that the Court of Appeal take the following action:

(i)appoint legal counsel to assist Mr Pool;

(ii)appoint a litigation guardian to assist Mr Pool;

(iii)adjourn these Court proceedings sine die until Mr Pool has recovered from his current medical condition.

[3] While that request is expressed to be made to the Court of Appeal, it is as I have said, set out in a memorandum filed in this Court.

[4] The reason for the request being addressed to the Court becomes clear when the judgment of the Court of Appeal in Pool v Summerlee released 3 March 2020 is considered.1 It would seem from that judgment that Mr Pool made the same requests set out above to the Court of Appeal.

[5] Mr Pool’s application for appointment of a litigation guardian was dismissed by the Court of Appeal on the grounds that it is not apparent that he is an incapacitated person as defined in r 4.29 of the High Court Rules 2016.2 I adopt the reasoning set out in the Court of Appeal judgment and Mr Pool’s identical request for the appointment of a litigation guardian in this Court is similarly dismissed.

1 Pool v Summerlee [2020] NZCA 35.
2 At [16].

[6] I note Mr Pool’s memorandum filed 3 March 2020 attaches a further letter from the District Health Board dated 11 February 2020 advising him of a pre-admission consultation on 19 February 2020. Mr Pool does not advise that consultation has resulted in surgery being scheduled. Mr Pool refers to other medical documents in this memoranda but produces only one in addition to the 11 February 2020…

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 528
Case: [2020] NZHC 528
Decision Date: 17 March 2020

CaseChat Overview and Summary

The High Court of New Zealand heard a case involving the estate of Donald Pool, who had passed away, and the RGP Family Trust. The case involved two parties, Anthony John Pool, who was acting as the executor and trustee of Donald Pool's estate and the RGP Family Trust, and Alexander James Summerlee and Richard Benjamin Summerlee, who were defendants. The dispute centered around the administration of the estate and the trust, including issues related to the Land Transfer Act 2017 and the inherent jurisdiction of the High Court. The case was titled Pool v Summerlee and was registered as CIV-2019-409-194 [2020] NZHC 528.

The court was required to decide on several legal issues, including whether to appoint legal counsel and a litigation guardian to assist Anthony Pool, and whether to adjourn the proceedings indefinitely until he recovered from his medical condition. The Court of Appeal had previously dismissed Pool's requests for legal counsel and a litigation guardian, and the High Court adopted the same reasoning in this case. The court also had to consider the defendants' strike-out application, which was adjourned pending the outcome of Pool's appeal to the Court of Appeal.

The High Court determined that Pool's requests for legal counsel and a litigation guardian were dismissed, as there was no evidence to suggest that he was incapacitated. The court also noted that Pool had the assistance of students and a secretariat in his capacity as a Samaritan, which allowed him to keep the court and other parties informed of his situation. The defendants' strike-out application was left for mention on 30 April 2020, with the possibility of deferral if supported by a medical certificate if Pool had undergone surgery and was unable to attend.

In conclusion, the High Court dismissed the requests for legal counsel and a litigation guardian, and left the defendants' strike-out application for mention on 30 April 2020, with the possibility of deferral if supported by a medical certificate if Pool had undergone surgery and was unable to attend.

Orders