Summerlee v Pool - [2019] NZHC 387

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-151

[2019] NZHC 387

IN THE MATTER of an application pursuant to the Court’s inherent jurisdiction

BETWEEN

RICHARD BENJAMIN SUMMERLEE, ALEXANDER JAMES SUMMERLEE and SARAH ELIZABETH SUMMERLEE as

beneficiares of the Donald Pool Trust Plaintiffs

AND

ANTHONY JOHN POOL, RICHARD BENJAMIN SUMMERLEE and

ALEXANDER JAMES SUMMERLEE as

trustees of the Donald Pool Trust Defendants

Hearing: 4 March 2019

Appearances:

A Riches for Plaintiff A J Pool in person

Judgment:

8 March 2019

JUDGMENT OF ASSOCIATE JUDGE LESTER

[1] The three plaintiffs, as the beneficiaries of the Donald Pool Summerlee Children’s Trust (“the Trust”), apply for summary judgment in this proceeding which seeks an order removing Anthony John Pool as trustee of the Trust.

[2] Including Mr Pool, there are three trustees of the Trust, all of whom are named as defendants. The other two trustees are also beneficiaries of the Trust and are named as plaintiffs. They consent to the order for removal and for the vesting of the property owned by the Trust including a home at 17 Patten Street, Avonside, Christchurch being

RICHARD BENJAMIN SUMMERLEE v POOL & ORS [2019] NZHC 387 [8 March 2019].

Lot 3, Deposit Plan 12599, Canterbury Land Registration District, Certificate of Title CB10K/1111, in themselves as remaining trustees (“the Patten St property”). In the alternative, they seek appointment of Perpetual Guardian as a replacement trustee for Mr Pool.

[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 30 August 2018. The proceeding was then adjourned a number of times before being set down for a fixture on 4 March 2019. The hearing date was allocated to in part take into account the timeframe in a medical certificate dated 30 October 2018 where the medical practitioner said it may take several weeks or even months before Mr Pool was able to attend Court.

[6] As it happens, Mr Pool did attend Court on 4 March 2019. He renewed his application for an adjournment on medical grounds, and the application was again declined. Mr Pool remained in the Court and presented argument throughout the hearing which lasted approximately one hour fifteen minutes.

[7] While…

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 Summerlee v Pool

Details

AGLC: Summerlee v Pool [2019] NZHC 387
Case: [2019] NZHC 387
Decision Date: 8 March 2019

CaseChat Overview and Summary

The plaintiffs, as beneficiaries of the Donald Pool Summerlee Children’s Trust, sought summary judgment to remove Anthony John Pool as a trustee of the Trust. The other two trustees, who are also beneficiaries, consented to the order and sought the vesting of the Trust property in themselves or, in the alternative, the appointment of Perpetual Guardian as a replacement trustee. The Trust was created by the deceased’s Will, and the plaintiffs invoked the rule in Saunders v Vautier to bring forward the vesting date and terminate the Trust. The defendants, including Mr Pool, opposed the application for summary judgment. The court found that the Trust was created, and the defendants accepted the Trust obligations. The court also found that the plaintiffs satisfied the requirements to invoke the rule in Saunders v Vautier. Therefore, the court ordered the removal of Mr Pool as a trustee and appointed Perpetual Guardian as a replacement trustee. The court also ordered Mr Pool to pay the plaintiffs’ costs on a 2B basis.

The legal issues the court was required to decide were whether the Trust was created, whether the plaintiffs satisfied the requirements to invoke the rule in Saunders v Vautier, and whether Mr Pool had a valid defence to the plaintiffs’ claim. The court found that the Trust was created, and the defendants accepted the Trust obligations. The court also found that the plaintiffs satisfied the requirements to invoke the rule in Saunders v Vautier. The court held that Mr Pool did not have a valid defence to the plaintiffs’ claim.

The reasoning and outcome of the court was that the Trust was created, and the defendants accepted the Trust obligations. The court found that the plaintiffs satisfied the requirements to invoke the rule in Saunders v Vautier, and therefore, the Trust should be terminated. The court ordered the removal of Mr Pool as a trustee and appointed Perpetual Guardian as a replacement trustee. The court also ordered Mr Pool to pay the plaintiffs’ costs on a 2B basis. The court declined Mr Pool’s application for an adjournment on medical grounds. The court also declined Mr Pool’s request to put material before the Court. The court found that Mr Pool did not have a valid defence to the plaintiffs’ claim and that the appointment of Perpetual Guardian was without prejudice to the parties’ respective claims.

Orders