POOL v NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED [2019] NZCA 571

POOL v NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED [2019] NZCA 571 [19 November 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA310/2019[2019] NZCA 571BETWEEN ANTHONY JOHN POOL AS TRUSTEEOF ESTATE OF DONALD POOLFirst ApplicantANTHONY JOHN POOL AS TRUSTEEOF R G P FAMILY TRUSTSecond ApplicantAND NEW ZEALAND GUARDIAN TRUSTCOMPANY LIMITED, ALEXANDERJAMES SUMMERLEE AND RICHARDBENJAMIN SUMMERLEE AS TRUSTEESOF THE DONALD POOL SUMMERLEECHILDREN'S TRUSTRespondentsCourt: Cooper and Collins JJCounsel: Applicant in personP A Cowey for RespondentsJudgment:(On the papers)19 November 2019 at 3.30 pmJUDGMENT OF THE COURTA The application for an extension of time to file an appeal is declined.B The application for an order to stay the execution of the High Courtjudgment is declined.C No order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Two applications have been filed by Mr Pool:(a) an application under r 29A of the Court of Appeal (Civil) Rules 2005(the Rules) for an extension of time to file an appeal againsta High Court judgment of Osborne J dated 14 May 2019;1 and(b) an application for an order staying execution of the High Court'sjudgment.Background[2] Mr Pool was a trustee of the Donald Pool Summerlee Children's Trust(the Trust). The respondents are the current trustees of the Trust.[3] On 8 March 2019, Associate Judge Lester issued a summary judgment infavour of the respondents removing Mr Pool as a trustee of the Trust and vesting allof the Trust property in the remaining trustees.2 The Trust property includes a propertyat Patten Street, Christchurch. Mr Pool occupied that property.[4] Following the Associate Judge's decision, Mr Pool registered a caveat overthe Patten Street property. An application for an order that the caveat not lapse wasthen brought before Osborne J on 14 May 2019 who made orders by consent including,that the caveat be removed forthwith and that Mr Pool vacate the property by14 June 2019.[5] On 26 June 2019, this Court received a notice of appeal dated 20 June 2019.In order to have complied with the time limits prescribed in r 29, Mr Pool's notice ofappeal needed to have been filed no later than 12 June 2019.1 Pool v Summerlee [2019] NZHC 1059.2 Summerlee v Pool [2019] NZHC 387. The Associate Judge also appointed New Zealand GuardianTrust Co Ltd as a trustee.Grounds for extending time to appeal[6] The grounds for Mr Pool's application under r 29A may be distilled tothe following three points:(a) He says he did not receive Osborne J's written decision until22 May 2019.(b) He says he suffers serious ill health that caused him to not file his noticeof appeal within time.(c) The decision he wishes to appeal is unfair.Grounds of stay application[7] The application to stay the High Court judgment is said to be necessary in orderto:(a) protect Mr Pool's rights; and(b) provide him with the opportunity to challenge what he says is an unfairdecision.Jurisdiction[8] This Court has previously held that the proper course to challenge a consentorder that has been made in the High Court is to first apply to the High Court to setthe order aside.3 This Court said:4We are satisfied that if the appellants wish to challenge the consent order, theirproper course is to pursue an application to set it aside in the High Court.This Court has no jurisdiction in the context of this appeal to set asidea consent order made in the High Court. Nor is it open for the appellants toraise a question on appeal about the interpretation of the agreement for saleand purchase when they have consented to an order for specific performance.The appeal is dismissed accordingly.3 King David Investments Ltd v Zhang [2016] NZCA 421 and the authorities cited therein.4 At [4].[9] There is another potential problem arising from s 56(3) of the Senior CourtsAct 2016, which provides:(3) No appeal, except an appeal under subsection (4), lies from any orderor decision of the High Court made on an interlocutory application inrespect of any civil proceeding unless leave to appeal to the Court ofAppeal is given by the High Court on application made within20 working days after the date of that order or decision or within anyfurther time that the High Court may allow.[10] Section 4(1) of the Senior Courts Act defines an interlocutory application as"any application to the High Court in any civil proceedings for some relief ancillaryto that claimed in a pleading". It is arguable the application that came beforeOsborne J was ancillary to the proceedings that were the subject of the summaryjudgment issued against Mr Pool on 8 March 2019.[11] A further jurisdiction issue concerns Mr Pool's stay application. Although r 12gives concurrent jurisdiction to this Court, and the Court being appealed from to ordera stay, it is this Court's practice not to accept an application for a stay unless it is firstmade in the lower Court or unless there are special circumstances justifying departurefrom this practice.5 There are no special circumstances in this case.Disposition[12] Mr Pool has not applied to the High Court to set aside its consent orders nor tostay execution of its judgment. He should have done so.[13] It will be for the High Court to determine whether or not to grant Mr Poolan extension of time to apply to set aside the High Court's consent orders.If the High Court grants that application, it will also need to determine Mr Pool'sapplications in the first instance.[14] In these circumstances, Mr Pool's applications are declined.5 M v Hawke's Bay Standards Committee [2014] NZCA 40, (2014) 21 PRNZ 717 at [10]–[11];Salem Ltd v Top End Homes Ltd (2005) 18 PRNZ 122 (CA) at [15]; and Gibson v Official Assignee[2016] NZCA 93 at [6].[15] We make no order for costs.Solicitors:Parry Field Lawyers, Christchurch for Respondents