Banks v Bennett - [2023] NZHC 2864

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2023-419-0087

[2023] NZHC 2864

UNDER Part 13 of the High Court Rules 2016

IN THE MATTER OF

a summary proceeding for recovery of land

BETWEEN

SUSAN IONA BANKS

Plaintiff

AND

PETER WILLIAM BENNETT

Defendant

Hearing: 11 October 2023

Counsel:

D M O’Neill and F Oback for the Plaintiff Defendant in Person

Judgment:

13 October 2023

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 13 October 2023 at 12 midday, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel:
Fry Wilson Todd, Huntley Riverbank Chambers

BANKS v BENNETT [2023] NZHC 2864 [13 October 2023]

Introduction

[1] The plaintiff, Susan Banks, is the administrator of the estate of her mother, Jill Bennett (the deceased).

[2] The estate includes a residential property at 17 Orchard East Road, Ngatea (the property). Under the deceased’s will, Ms Banks is directed to sell the property. The proceeds of sale will form part of the residue of the estate. Under the will, Ms Banks and the defendant, her brother Peter Bennett, share in the residue equally.

[3] Both Ms Banks and Mr Bennett were named in the will as trustees and executors. However, probate was granted to Ms Banks alone because at the time Mr Bennett was serving a sentence of imprisonment.

[4] The deceased died on 10 March 2018. Mr Bennett admits that he occupied the property after his mother passed away and following his release from prison. Ms Banks says that he did so without her permission as administrator and without any legal right to do so. There is a dispute regarding the duration of Mr Bennett’s occupation.

[5] In April 2023, Ms Banks filed a proceeding seeking an order for possession of the property and claiming mesne profits for the period of Mr Bennett’s occupation.

[6] On 19 June 2023, I granted Ms Banks summary judgment for an order for possession of the property, requiring Mr Bennett to vacate the property by 28 July 2023. Mr Bennett complied with that order.

[7] Ms Banks’ claim for mesne profits was heard on 11 October 2023 and is the subject of this judgment.

Legal principles

[8] A registered owner of a property, including an executor of an estate, is entitled to an order for possession of the property against a person who is occupying the property without proper consent.1

[9] A registered owner, or a person otherwise entitled to possession of the property, may bring a claim for mesne profits against the trespasser. The claim is described in the Laws of New Zealand as follows:2
A proceeding for mesne profits is a claim for damages for trespass. The damages may be either for the loss the lessor has suffered through being out of possession of the land or, if no actual damage caused by the defendant’s trespass can be proved, for the value of the premises to the defendant for…

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.

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Details

Case: [2023] NZHC 2864
Decision Date: 13 October 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Susan Banks, as the administrator of the estate of her deceased mother, Jill Bennett, filed a proceeding against her brother, Peter Bennett, for the recovery of a residential property located at 17 Orchard East Road, Ngatea. Under the deceased's will, Ms Banks was directed to sell the property, with the proceeds forming part of the residue of the estate. Both Ms Banks and Mr Bennett were named as trustees and executors in the will; however, probate was granted to Ms Banks alone, as Mr Bennett was serving a sentence of imprisonment at the time. The primary issue in this case was the duration of Mr Bennett's occupation of the property and whether he had any legal right to do so. Ms Banks claimed that Mr Bennett occupied the property without her permission and sought an order for possession as well as claiming mesne profits for the period of Mr Bennett's occupation.

The court had to decide several legal issues in this case. The first issue was the period during which Mr Bennett occupied the property. The court found that Mr Bennett occupied the property from 10 September 2022 until 28 July 2023, making for a total period of occupation of 46 weeks. The second issue was whether Mr Bennett had any legal right to occupy the property. The court found that Mr Bennett did not assert any legal right to possess or occupy the property, and Ms Banks did not give him permission to do so in her capacity as the administrator of the estate. The third issue was determining a reasonable rate of remuneration for the period of occupation. The court found that $360 per week would be a reasonable rate of remuneration for the property during the period that it was occupied by Mr Bennett. The final issue was whether Mr Bennett was entitled to set off any costs and expenses he incurred in respect of the property. The court found that Mr Bennett was entitled to a set off for expenses that he met in respect of the property from March 2018 to December 2019, which totalled $7,218.04.

The court ruled in favour of Ms Banks and ordered Mr Bennett to pay mesne profits of $9,341.96 to the estate of Jill Bennett. The court also ordered Mr Bennett to pay costs to Ms Banks, in her capacity as administrator of the estate of Jill Bennett, of $10,647.45 plus disbursements of $1,350. Execution of the judgment is stayed under r 17.29 of the High Court Rules 2016 until the final distribution of the estate, or further order of the Court.

Orders