Sunde v Sunde - [2019] NZHC 3056

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000768

[2019] NZHC 3056

BETWEEN
ROY MELVIN SUNDE

First Plaintiff

MARINA ANNE SUNDE
Second Plaintiff

ANNE VERA SUNDE
Third Plaintiff

ROY MELVIN SUNDE as executor of the estate of LEO ZANE SUNDE
Fourth Plaintiff

AND

LEO ZANE SUNDE, ANNE VERA SUNDE, ROY MELVIN SUNDE, KEVIN PAUL SUNDE and MARINA ANNE

SUNDE as trustees of the LEROY TRUST Defendants

Hearing:
12 November 2019

Further submissions received 13 and 15 November 2019

Appearances:

J Cundy for R Sunde First Plaintiff

P Moodley for R Sunde as Executor of the Estate of Leo Sunde (Fourth Plaintiff)
J R Wain for K Sunde, Fourth named Defendant

Judgment:

22 November 2019

JUDGMENT (NO 2) OF ASSOCIATE JUDGE P J ANDREW

SUNDE & ORS v SUNDE & ORS [2019] NZHC 3056 [22 November 2019]

Introduction

[1] This is a summary judgment proceeding which was adjourned pursuant to my judgment of 29 October 2018 (Judgment No 1).1

[2]The critical issue to determine is:

(a)Whether summary judgment should now be entered in favour of the estate of Leo Sunde (the fourth plaintiff) against the trustees of the Leroy Trust (the defendants); or

(b)Whether the summary judgment application should be further adjourned pending Kevin Sunde’s (one of the named trustees) application to the Family Court under s 103 of the Protection of Personal and Property Rights Act 1998 (PPPRA).

[3]Kevin is the only trustee who has opposed Leo’s claim.

Background

[4] In Judgment No 1, I concluded that Leo, as plaintiff, had established that Kevin, as defendant, had no defence to the application for summary judgment. However, in the exercise of my discretion, I determined that the summary judgment proceedings should be adjourned to enable:

(a)Kevin to pursue his s 103 PPPRA claim challenging Roy Sunde’s (the first plaintiff and executor of Leo’s estate) exercise of his power of attorney for Leo; and

(b)To give the Sunde family an opportunity to meet and mediate with a view to trying to resolve the key outstanding issues between them.

[5]Since my judgment of 29 October 2018:

1 Sunde v Sunde [2018] NZHC 2788.

(a)The parties have attempted, unsuccessfully, to mediate and resolve the dispute.

(b)Leo has passed away (21 May 2019).

(c)Kevin’s application before the Family Court under s 103 of the PPPRA remains unresolved.

(d)Probate of Leo’s will has been granted and Roy, as executor, is obliged under the will to make demand for the debt owing by the Leroy Trust.

(e)Kevin had initially lodged a caveat against Leo’s estate but failed to demonstrate good cause as to why Roy’s application for an order nisi for the grant of probate should not be granted. There thus remains no valid challenge to the will.

Order for substitution of fourth plaintiff

[6] By consent, I order, pursuant to rr 4.50 and 4.52 of the High Court Rules 2016 that Roy Melvin Sunde, as executor of the estate of Leo Sunde, becomes the fourth…

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 Sunde v Sunde

Details

AGLC: Sunde v Sunde [2019] NZHC 3056
Case: [2019] NZHC 3056
Decision Date: 22 November 2019

CaseChat Overview and Summary

The case of Sunde v Sunde involves a dispute between family members regarding the liability of the Leroy Trust to repay a debt to the estate of Leo Sunde. The High Court of New Zealand, Auckland Registry, presided over the case, which was a summary judgment proceeding. The primary issue before the court was whether summary judgment should be granted in favor of the estate of Leo Sunde against the trustees of the Leroy Trust. The court was also required to determine if the summary judgment application should be further adjourned pending the outcome of a Family Court application by one of the trustees, Kevin Sunde.

The legal issues that the court needed to resolve included whether the Family Court application by Kevin Sunde should be allowed to proceed before the summary judgment application was decided, whether a separate demand for repayment of the debt needed to be made by Roy Sunde, the executor of Leo Sunde's estate, and whether summary judgment should be deferred due to the Leroy Trust's ability to pay the debt. The court also considered the implications of Leo Sunde's death and the grant of probate to Roy Sunde, which obliged him to pursue the debt on behalf of the estate.

The court found that Kevin Sunde's Family Court application did not preclude the entry of summary judgment in favor of Leo Sunde's estate as the challenge did not extend to the interest demands. Furthermore, the court ruled that no separate demand for repayment was necessary as Roy Sunde, as the executor, had already pursued Leo Sunde's claim in the proceedings. The court also rejected the argument that summary judgment should be adjourned due to the Leroy Trust's financial position. The court concluded that the need for finality in the litigation warranted the entry of summary judgment. Therefore, the court granted summary judgment in favor of Roy Sunde, as the executor for the estate of Leo Sunde, against the trustees of the Leroy Trust.

The final orders included the entry of summary judgment in favor of Roy Sunde in the sum of $3,021,012, comprising principal and interest. The court also determined that there should be no costs for the first judgment but ordered Kevin Sunde to pay costs on a 2B basis to Roy Sunde for the second judgment, with these costs to be paid personally by Kevin Sunde and not from the trust funds.

Orders