Sunde v Sunde - [2018] NZHC 2788

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-000768

[2018] NZHC 2788

BETWEEN
ROY MELVIN SUNDE

First Plaintiff

MARINA ANNE SUNDE

Second Plaintiff

ANNE VERA SUNDE

Third Plaintiff

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: 11 October 2018

Appearances:

S E Cameron for the fourth Plaintiff J R Wain for the fourth Defendant

Judgment:

29 October 2018

[REDACTED] JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by me on
29.10.18 at 3:30pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Cook Morris Quinn J R Wain Barrister

SUNDE v SUNDE [2018] NZHC 2788 [29 January 2018]

Introduction

[1] Leo Sunde is 91 years old. He is now mentally incapable. His relatively modest needs are paid for by two family trusts, including the LeRoy Trust, whose trustees are the five named defendants.

[2]In these proceedings Leo, the fourth plaintiff, seeks summary judgment for

$2,855,809.33, being principal and interest said to be owing to him under a deed of acknowledgment of debt between himself as lendor and the defendants as borrowers.1 At issue is the validity of the exercise of a power of attorney by Roy Sunde on behalf of Leo. The notice of demand for the principal and some of the interest payments was issued by Roy on behalf of Leo.

[3] Kevin Sunde, on behalf of the LeRoy Trust,2 defends the summary judgment application on the basis that the notice of demand issued by Roy was contrary to, or in breach of, the provisions of the Protection of Personal and Property Rights Act 1988 (the PPPRA). Kevin contends that the notice of demand for repayment issued by Roy was not for the benefit of Leo as donor and was in breach of Roy’s obligations, as attorney, to act with loyalty and good faith.

[4] The critical issues I must determine are whether the claims that the notice of demand was in breach of the provisions of the PPPRA and/or Roy’s equitable obligations, constitutes an arguable defence for the purposes of summary judgment and if not, whether I should nevertheless exercise my discretion to refuse summary judgment in what is said to be an exceptional case.

Relevant legal principles

[5]Rule 12.2(1) of the High Court Rules provides:

1 Of the sum of $2,855,809.33, interest of $165,212.11 is claimed for each of the three years demanded. Total interest claimed is $495,636.33.
2 The other trustees, Anne, Marina and Roy have consented to judgment. By minute dated 24 July 2018 Downs J directed that Kevin’s notice of opposition constitutes opposition on behalf of the trustees, and like representation, under s 33A of the Trustee Act 1956. Kevin is the sole voice of opposition.

The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no…

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 [2018] NZHC 2788
Case: [2018] NZHC 2788
Decision Date: 29 October 2018

CaseChat Overview and Summary

In Sunde v Sunde, Leo Sunde, a 91-year-old man who has been found to lack mental capacity, sought summary judgment for a debt of $2,855,809.33, including interest, which he claimed was owed to him by the LeRoy Trust. Leo’s nephew, Roy Sunde, holds an enduring power of attorney for Leo and had issued a notice of demand for repayment of the debt on Leo’s behalf. The trustees of the LeRoy Trust, including Roy, opposed the summary judgment application on the grounds that the notice of demand was contrary to the Protection of Personal and Property Rights Act 1988 and Roy’s obligations as an attorney.

The court considered two primary issues: whether the allegations of improper exercise of the power of attorney constituted an arguable defence to the summary judgment application and, if not, whether the court should exercise its discretion to refuse summary judgment. The court concluded that the allegations did not constitute an arguable defence as they were essentially collateral challenges to the power of attorney, akin to challenges to statutory powers of decision in other cases. Such challenges are not admissible in summary judgment proceedings but should be pursued through formal court proceedings. However, the court found that this was an exceptional case due to the complex family dispute and dysfunctional nature of the trust. The court decided to adjourn the summary judgment application to allow the trustees to pursue a claim under s 103 of the PPPRA and for the family to attempt mediation to resolve the outstanding issues. The application was adjourned until 26 March 2019, with costs reserved.

Orders