POOL v SUMMERLEE AND PERPETUAL TRUST LIMITED [2020] NZHC 1187

POOL v SUMMERLEE AND PERPETUAL TRUST LIMITED [2020] NZHC 1187

The statement of claim was struck out because the proceeding was rendered academic by the sale of the property and was inconsistent with the prior judgment (Summerlee v Pool), constituting a collateral attack and abuse of process under r 15.1(1)(d) High Court Rules 2016; costs were awarded to defendants on a 2B basis with disbursements, jointly and severally against both plaintiffs, and Perpetual Trust Limited was added as a defendant pursuant to the earlier vesting order.

Citation
[2020] NZHC 1187
Parties
First Plaintiff Executor/trustee of the Estate of Donald Pool: Anthony John Pool; Second Plaintiff Trustee of the RGP Family Trust: Anthony John Pool; First Defendant: Alexander James Summerlee; Second Defendant: Richard Benjamin Summerlee; Third Defendant: Perpetual Trust Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
3 June 2020
Procedural Posture
Strike Out Application in Civil Trust and Estate Proceedings / Hearing by Telephone Conference and Judgment on Strike Out Application
Outcome
Statement of claim struck out
Legal Topics
Abuse of Process, Strike Out Under High Court Rules, Caveat and Sale of Property, Costs Orders, Appeal Abandonment, Vesting of Trusteeship
Trusts Estates Civil Procedure Property Law Inherent Jurisdiction Abuse of Process Strike Out Under High Court Rules Caveat and Sale of Property +3 more

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Parties

Anthony John Pool

First Plaintiff Executor/trustee of the Estate of Donald Pool

Anthony John Pool

Second Plaintiff Trustee of the RGP Family Trust

Alexander James Summerlee

First Defendant

Richard Benjamin Summerlee

Second Defendant

Perpetual Trust Limited

Third Defendant

Procedural Posture

Strike Out Application in Civil Trust and Estate Proceedings / Hearing by Telephone Conference and Judgment on Strike Out Application

Legal Issues

  1. 1 Whether the plaintiffs' statement of claim should be struck out under r 15.1(1)(d) High Court Rules 2016 as an abuse of process
  2. 2 Whether the claim is academic/moot because the property has been sold and relief cannot be granted
  3. 3 Whether the proceeding constitutes a collateral attack on the prior judgment in Summerlee v Pool

Ratio Decidendi

The statement of claim was struck out because the proceeding was rendered academic by the sale of the property and was inconsistent with the prior judgment (Summerlee v Pool), constituting a collateral attack and abuse of process under r 15.1(1)(d) High Court Rules 2016; costs were awarded to defendants on a 2B basis with disbursements, jointly and severally against both plaintiffs, and Perpetual Trust Limited was added as a defendant pursuant to the earlier vesting order.

Court Disposition

Statement of claim struck out

Orders

  • Strike out the plaintiffs' statement of claim
  • Plaintiffs to pay defendants' costs on a 2B basis together with disbursements as fixed, jointly and severally against Anthony John Pool and the RGP Family Trust