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 letter.

[7]        In respect of Mr Pool’s request that this Court appoint legal counsel to assist him, that application was also dismissed by the Court of Appeal. I adopt the reasoning of the Court of Appeal judgment in discussing the identical application made to this Court.3

[8]        The Court of Appeal noted there was no justification for Mr Pool’s appeal against my judgment in Summerlee v Pool being adjourned indefinitely.4

[9]        Mr Pool’s proceeding in this Court is listed for mention on 30 April 2020. As the Court of Appeal noted in its judgment, if and when Mr Pool will undergo the surgery foreshadowed in the papers he has filed, is unclear. Again, as recorded by  the Court of Appeal, if Mr Pool does undergo surgery then at that time and for the period of recuperation, he may not be able to actively progress his proceedings.

[10]      However, until then the memoranda he has filed suggests he is able to update the Court in respect of his proceeding. In any event, a letter addressed to the Registrar dated 3 March 2020 filed on 12 March 202 shows Mr Pool has the assistance of “…students, and a secretariat, in their capacity as Samaritans…”. Given Mr Pool is fortunate enough to have that assistance, he will be able to keep the Court and the other parties informed of his situation.

[11]      On 31 January 2020 I adjourned the defendants’ strike out application for mention in the List on 30 April 2020 at 11.00 am.  The adjournment was to allow  Mr Pool’s appeal, or at least his second application for extension of time to bring his

3 At [12].

4      Summerlee v Pool [2019] NZHC 387.

appeal,  to be considered.     The parties await the Court of Appeal’s ruling on that application.

[12]      For the moment, I leave this matter for mention on Thursday 30 April 2020. If a ruling from the Court of Appeal is received in the meantime that call can be revisited. If Mr Pool has had his surgery and is not able to attend on 30 April 2020 then as noted at [9] above, a deferral of the strike-out application may be appropriate if supported by a medical certificate. In any event, I direct a report for or on behalf of Mr Pool to be filed three working days (that is Friday 24 April 2020) prior to that date.

Associate Judge Lester

Solicitors:

Saunders & Co, Christchurch

Copy to: Mr A J Pool, Self-represented Plaintiff