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…

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.

Continue reading Bennett v O'Meara

Details

AGLC: Bennett v O'Meara [2022] NZHC 3519
Case: [2022] NZHC 3519
Decision Date: 19 December 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Bennett and Henderson sought an order for possession of a property located at 29 Regent Street, Papatoetoe. The defendants, O’Meara and O’Meara, failed to oppose the application. The plaintiffs, who are the executors and trustees of the estate of David James Roderick Bennett, sought possession of the property, which has been occupied by the defendants since around 2000. The plaintiffs sought summary judgment and argued that the defendants have no defence to the claim. The court considered that the plaintiffs, as registered owners, were entitled to obtain an order for possession of the property against the defendants who are occupying the property without consent. The court held that the defendants have no tenancy or sub-tenancy which would provide for their continued occupation of the property and that they have either failed or refused to vacate the property.

The court further held that the property needs to be sold in order for the residue to be distributed equally between the beneficiaries and that Mrs O’Meara has failed to engage in the requisite sale process by vacating the property so it can be marketed and sold. The court made an order that the defendants vacate and deliver up possession of the property within five working days of being served with a copy of a sealed order. The plaintiffs are entitled to costs of $18,164 and disbursements of $2,676.99.

Orders