Bennett v O'Meara

[2022] NZHC 3519

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1553

[2022] NZHC 3519

UNDER

Parts 12 and 13 of the High Court Rules 2016

IN THE MATTER

of an application for an order for possession of the property at 29 Regent Street,

Papatoetoe 2025

BETWEEN

DARRYN CRAIG BENNETT and SUSAN RUTH HENDERSON

Plaintiffs

AND

KIM TERESA O’MEARA and JON O’MEARA

Defendants

Hearing:	On the papers
Counsel:	J W Donald for the Plaintiffs
Judgment:	19 December 2022

JUDGMENT OF GAULT J

This judgment was delivered by me on 19 December 2022 at 2:30 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Mr K A Lomas and Mr J W Donald, Braun Bond & Lomas Ltd, Hamilton

BENNETT and HENDERSON v O’MEARA and O’MEARA [2022] NZHC 3519 [19 December 2022]

[1]    This application for summary judgment was listed for call on 6 December 2022. The plaintiffs seek an order for immediate possession of a property at 29 Regent Street, Papatoetoe, Auckland (property).1

[2]    The proceeding was filed  on  5  September  2022  and  served  on  18  and  19 October 2022. No notice of opposition has been filed and there was no appearance by the defendants.

[3]    I was unable to deal substantively with the matter in the list, but I indicated to Mr Donald, for the plaintiffs, that following his helpful memorandum a formal proof hearing should not be required and that I could deal with the matter on the papers.

Factual background

[4]    The property was owned by the estate of David James Roderick Bennett    (Mr Bennett senior) who died on 5 July 2020. The plaintiffs, together with the first named defendant (Mrs O’Meara), were appointed as executors and trustees of the estate. The first named plaintiff (Mr Bennett junior) and Mrs O’Meara are the only two children of Mr Bennett senior and his late wife. They are to share equally in the remainder of his estate under his will.

[5]    The defendants have resided at the property since around 2000. Although they paid rent for some time, they have not paid anything towards the property since at least the death of Mr Bennett senior.

[6]    Since at least 1 March 2021, the plaintiffs have attempted to engage with the defendants regarding the process of vacating the property and having it readied for marketing and sale. Between 1 March 2021 and December 2021, Mrs O’Meara responded twice expressing that the property would be vacated and readied for sale, but that personal issues and COVID-19 lockdowns had impeded that process.

1      Record of title NA1534/86.

[7]    The plaintiffs consider that Mrs O’Meara has either refused or failed to act in accordance with her duty under the will to realise the residue of the estate and to have that residue distributed equally between herself and Mr Bennett junior. The estate has been required to continue to pay rates and insurance on the property. The plaintiffs also consider that the property will have declined in value since 1 March 2021 given market forces.

[8]    The administration of the estate liabilities was concluded by 28 February 2022 and the balance of the estate assets have been ready for realisation and distribution to the beneficiaries. As a result, the executors’ role is complete and they hold the residue of the estate as trustees for the beneficiaries.2

[9]    On 23 March 2022, the plaintiffs’ solicitors sent Mrs O’Meara notice of removal as trustee pursuant to the Trusts Act 2019. As Mrs O’Meara did not take any action to object, her removal took effect 20 working days after she received the notice, that is, on or about 20 April 2022.

[10]   On 23 May 2022, the plaintiffs completed an  e-dealing transfer in which  Mrs O’Meara’s trustee interest in the property was transferred to and vested in the plaintiffs.

[11]   On 13 July 2022, correspondence and copies of the Land Transfer documents were delivered to the defendants. The documents included a notice to vacate the property within 28 days.

[12]   The defendants have not complied with the notice to vacate and remain in the property.

2      Harsant v Menzies [2012] NZHC 3390 at [52], citing Re Eagle (deceased); Barbalich v Kennedy

HC Auckland M721/97 and M1171/97, 21 November 1997 at 5-6.

Analysis

[13]   It is well established that a registered proprietor, including an executor/trustee of an estate, is entitled to obtain an order for possession of property against someone who is occupying that property without the consent of the registered proprietor.3

[14]   In terms of the question on a summary judgment application,4 I am satisfied that the defendants have no defence to the claim. I am satisfied the defendants are occupying the property without the consent of the plaintiffs, who are the registered owners. Any licence or consent of Mr Bennett senior for the defendants to continue to occupy the property has expired under the terms of the will. There is no tenancy or sub-tenancy which would provide for the defendants’ continued occupation of the property and therefore the Residential Tenancies Act 1986 does not apply. Even allowing for difficulties during earlier COVID-19 lockdowns, the plaintiffs, as registered owners, have provided ample notice to the defendants to vacate the property and the defendants have either failed or refused to vacate.

[15]   The property needs to be sold in order for the residue to be distributed equally between the beneficiaries. Mrs O’Meara has failed to engage in the requisite sale process by vacating the property so it can be marketed and sold.

[16]   The plaintiffs are entitled to judgment against the defendants on the first cause of action. The plaintiffs are not seeking to advance the mesne profits cause of action by way of summary judgment.

[17]   The plaintiffs seek possession within three working days of service of a copy of a sealed order. Given the upcoming holiday period, I consider that five working days would be more appropriate.

3      Wakefield (as executor of Estate of Wakefield) v Wakefield [2021] NZHC 1664 at [9]; and

Kirkwood v Kirkwood [2020] NZHC 3108, (2020) 21 NZCPR 650 at [12].

4      Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26].

Result

[18]   I make an order that the defendants vacate and deliver up possession of the property at 29 Regent Street, Papatoetoe, Auckland, with the record of title NA1534/86, within five working days of being served with a copy of a sealed order.

[19]The plaintiffs are entitled to costs of $18,164 and disbursements of $2,676.99.

Gault J