Banks v Bennett
[2023] NZHC 2864
•13 October 2023
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 the period of the defendant’s wrongful occupation … Mesne profits, being a type of damages for trespass, may be recovered in respect of the defendant’s continued occupation only after the expiry of the legal right to occupy the premises.
[10] The learned authors of the Law of Real Property describe the relief generally sought in a claim for mesne profits:3
In making such a claim for “mesne profits” … the owner may elect to seek either restitution of the benefit which the defendant has received or damages for the loss he has suffered.
(i)Usually the owner will claim compensation for having been deprived of the use and occupation of the land. This is assessed according to the current open market value of the land, normally the ordinary letting value. The landowner is entitled to the sum “whether or not he can show that he would have let the property to anybody else, and whether or not he would have used the property himself”.
The issues
[11]The claim for mesne profits raises the following issues:
(a)During what period did Mr Bennett occupy the property?
1 Kirkwood v Kirkwood [2020] NZHC 3108, (2020) 21 NZCPR 650 at [12].
2 J C D Corry Laws of New Zealand Lessor and Lesse (online ed) at [164] (footnotes omitted).
3 Charles Harpum, Stuart Bridge and Martin Dixon Megarry & Wade: The Law of Real Property
(8th ed, Sweet & Maxwell, London, 2012) at [4-029] (footnotes omitted).
(b)Did Mr Bennett have any right to occupy the property?
(c)What is a reasonable rate of remuneration for the period of occupation?
(d)Is Mr Bennett entitled to set off any costs and expenses he incurred in respect of the property?
During what period did Mr Bennett occupy the property?
[12] Mr Bennett refers to a letter from the Department of Corrections dated 5 August 2022, which confirms that it was a condition of his parole that he not reside at the property while his parole continued. His parole ended on 7 February 2023. That letter is, however, irrelevant if Mr Bennett chose to ignore it.
[13] A neighbour of the property, Karen Foster-Moan, gave affidavit evidence that she observed Mr Bennett living in the property from early September 2022 until late July 2023.
[14] Avalon Pascoe, a local real estate agent who knows Ms Banks and Mr Bennett, gave affidavit evidence that she received a telephone call from Ms Foster-Moan on 9 September 2022, regarding someone moving into the property. Ms Pascoe’s evidence was that this was followed up with a visit from Ms Foster-Moan on 10 September 2022, to advise that Mr Bennett had moved into the property.
[15] Mr Bennett says that he occupied the property from the time that his parole ended, and that he lived in his vehicle until then.
[16] I find that Mr Bennett occupied the property from 10 September 2022, on the basis of the evidence from Ms Foster-Moan and Ms Pascoe. I find that Mr Bennett’s occupation continued until the vacation date, 28 July 2023, making for a total period of occupation of 46 weeks.
Did Mr Bennett have any right to occupy the property?
[17] Mr Bennett does not assert any legal right to possess or occupy the property. I accept the unchallenged evidence of Ms Banks that she did not give Mr Bennett permission to occupy the property in her capacity as administrator of the estate.
[18] It appears that Mr Bennett may have assumed that he had a right to occupy the property due to his status as a beneficiary of the residue of the estate. If so, that was a mistaken belief.
[19] I find that Ms Banks, as the administrator of the estate, is entitled to an award of mesne profits for the period that Mr Bennett unlawfully occupied the property.
What is a reasonable rate of remuneration for the period of occupation?
[20] Ms Banks initially relied on evidence from Lynn Jackson, a property manager for Bayleys. Ms Jackson was responsible for managing the residential tenancy that was in place before Mr Bennett’s occupation.
[21] Ms Jackson appraised the market rent as at 23 February 2023 to be in the range of $450 to $480 per week. However, that is based on the property being brought up to “comply with the Healthy Homes Standards” and being “cleaned to a good standard”. The reports of inspections undertaken during the prior residential tenancy confirm that there were maintenance issues with the property.
[22] Mr Bennett says that $360 per week would be a fair rental, being the rent paid by the prior tenant.
[23] The most recent report of an inspection of the property by Bayleys is dated 4 May 2022. It notes numerous items that are either damaged or in average condition. The statement produced by Bayleys for the period ended 31 August 2022 records rent being paid at the rate of $360 per week. I find that this is a reasonable rate of remuneration for the property during the period that it was occupied by Mr Bennett.
Is Mr Bennett entitled to set off any costs and expenses he incurred in respect of the property?
[24] During the hearing, the parties agreed that Mr Bennett is entitled to a set off for expenses that he met in respect of the property from March 2018 to December 2019, which total $7,218.04.
[25] There is no basis for a further set off, in this proceeding, of legal expenses that Mr Bennett says he incurred in respect of issues arising out of the application for, and grant of, probate.
[26] Therefore, the estate is entitled to judgment against Mr Bennett for mesne profits of $9,341.96.
[27] Mr Bennett will ultimately be the beneficiary of half of any payment he makes to the estate in satisfaction of the judgment. Accordingly, it is appropriate to stay execution of the judgment until the final distribution of the estate.
[28] Costs
[29] Ms Banks seeks an award of costs on a 2B basis of $15,176.50, together with disbursements of $1,350.
[30]Mr Bennett says that the amount sought is too high.
[31] The estate is entitled to an award of costs as the successful party. The proceeding was necessary because Mr Bennett refused to vacate the property.
[32]I make two reductions to the costs sought:
(a)costs on a 2A basis for steps 1 and 24; and
(b)an overall reduction of 10 per cent to reflect Mr Bennett’s successful claim for a set off.
[33]This reduces the costs award to $10,647.45.
Result
[34] Judgment is entered for the plaintiff, in her capacity as administrator of the estate of Jill Bennett, against the defendant for $9,341.96.
[35] The defendant shall pay costs to the plaintiff, in her capacity as administrator of the estate of Jill Bennett, of $10,647.45 plus disbursements of $1,350.
[36] 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.
Associate Judge Brittain
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