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

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

Summary judgment was entered because the estate established that Kevin had no defence to the claim, the pending s 103 Family Court application did not preclude enforcement of the debt or interest demands, the executor had ratified prior demands and had pursued the claim (constituting demand), and there was no utility in further adjournment given failed mediation and the need for finality.

Citation
[2019] NZHC 3056
Parties
First Plaintiff: Roy Melvin Sunde; Second Plaintiff: Marina Anne Sunde; Third Plaintiff: Anne Vera Sunde; Fourth Plaintiff: Roy Melvin Sunde as executor of the estate of Leo Zane Sunde; Defendant Trustee: Leo Zane Sunde; Defendant Trustee: Anne Vera Sunde; Defendant Trustee: Roy Melvin Sunde; Defendant Trustee (fourth Named Defendant): Kevin Paul Sunde; Defendant Trustee: Marina Anne Sunde
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 November 2019
Procedural Posture
Summary Judgment Proceeding / Judgment (no 2) Summary Judgment Entered
Outcome
Summary judgment entered in favour of the fourth plaintiff, Roy Melvin Sunde as executor for the estate of Leo Zane Sunde, against the defendants (trustees of the Leroy Trust)
Legal Topics
Summary Judgment, Enforcement of Debt Against Trust, Power of Attorney, Protection of Personal and Property Rights Act S 103, Executor Duties, Ratification of Agent's Acts
Trusts Estate and Probate Civil Procedure Family Law Summary Judgment Enforcement of Debt Against Trust Power of Attorney Protection of Personal and Property Rights Act S 103 +2 more

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Parties

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

Leo Zane Sunde

Defendant Trustee

Anne Vera Sunde

Defendant Trustee

Roy Melvin Sunde

Defendant Trustee

Kevin Paul Sunde

Defendant Trustee (fourth Named Defendant)

Marina Anne Sunde

Defendant Trustee

Procedural Posture

Summary Judgment Proceeding / Judgment (no 2) Summary Judgment Entered

Legal Issues

  1. 1 Whether summary judgment should be entered for the estate against the trustees of the Leroy Trust
  2. 2 Whether the pending Family Court s 103 PPPRA application by Kevin prevents summary judgment
  3. 3 Whether a separate demand for payment by the executor was required prior to judgment

Ratio Decidendi

Summary judgment was entered because the estate established that Kevin had no defence to the claim, the pending s 103 Family Court application did not preclude enforcement of the debt or interest demands, the executor had ratified prior demands and had pursued the claim (constituting demand), and there was no utility in further adjournment given failed mediation and the need for finality.

Court Disposition

Summary judgment entered in favour of the fourth plaintiff, Roy Melvin Sunde as executor for the estate of Leo Zane Sunde, against the defendants (trustees of the Leroy Trust)

Orders

  • Order substituting Roy Melvin Sunde as executor of the estate of Leo Zane Sunde as fourth plaintiff pursuant to rr 4.50 and 4.52 High Court Rules 2016
  • Summary judgment awarded to the fourth plaintiff against the defendants in the sum of $3,021,012