Bhanabhai v Lowndes - [2019] NZHC 1441

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-214

[2019] NZHC 1441

BETWEEN
MANU CHHOTUBHAI BHANABHAI as

sole trustee of THE YI LU FA TRUST Plaintiff

AND

PETER HILTON LOWNDES

Defendant

Hearing: 21 June 2019

Appearances:

A R Gilchrist for the Plaintiff

No appearance by or for the Defendant

Judgment:

21 June 2019

Reissued:

25 June 2019

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1] The plaintiff, Mr Bhanabhai is the sole trustee of The Yi Lu Fa Trust (“the Trust”). The defendant, Mr Lowndes, is a barrister. He is the former husband of Yi Ywei Lowndes (“Mrs Lowndes”).

[2] Mr and Mrs Lowndes lived in a home in Epsom during their marriage (“the property”). The property is owned by the Trust. Mr Lowndes still lives there. He continued to live in the property after he and Mrs Lowndes separated. In this proceeding, Mr Bhanabhai seeks an order for possession of the Epsom property. He applies for summary judgment.

[3] Neither Mr nor Mrs Lowndes is a beneficiary of the Trust. Both are described as appointors. The final beneficiaries are the children of Mr and Mrs Lowndes, with

BHANABHAI as sole trustee of THE YI LU FA TRUST v LOWNDES [2019] NZHC 1441 [21 June 2019]

substitution of grandchildren if a child has predeceased. The Trust Deed provides a wider range of discretionary beneficiaries to include not only the final beneficiaries but also their spouses and former spouses, and any other person or body as the trustees, with the unanimous consent of the appointors, shall revocably or irrevocably appoint. The Appointors hold power jointly to appoint new trustees.

[4] There is neither a lease nor a tenancy agreement in place between the trust and Mr Lowndes.

[5] There is a mortgage against the property. Payments due under the mortgage are in arrears. The mortgagee has served a Property Law Act notice on Mr Bhanabhai. The Trust does not have funds to meet its obligations under the mortgage. The notice has expired, and the mortgagee is poised to commence mortgagee sale proceedings. There are relationship property issues between Mr and Mrs Lowndes and it seems that Mr Lowndes is no longer servicing the mortgage in return for occupation of the property.

[6] A notice to vacate the property was served on Mr Lowndes, requiring him to comply by 21 December 2018.

[7] A further notice was given to him on 31 January 2019 requiring him to vacate the property by 6 February 2019.

[8] Rule 13.2 of the High Court Rules provides that Pt 13 of the Rules applies to every proceeding in which a plaintiff claims recovery of land which is occupied solely by an “unlawful occupier”. An “unlawful occupier” is defined in r 13.1 as:

a person who –

(a)occupies or continues to occupy land of the plaintiff without the licence or consent of the plaintiff or the plaintiff’s predecessor in title; and

(b)is not a tenant or subtenant holding over…

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 Bhanabhai v Lowndes

Details

AGLC: Bhanabhai v Lowndes [2019] NZHC 1441
Case: [2019] NZHC 1441
Decision Date: 21 June 2019

CaseChat Overview and Summary

The case of Bhanabhai v Lowndes involved a claim for possession of a property by the plaintiff, Mr Bhanabhai, who is the sole trustee of The Yi Lu Fa Trust, against the defendant, Mr Lowndes, who is the former husband of Yi Ywei Lowndes. The property in question, owned by the Trust, is located in Epsom and was formerly the marital home of Mr and Mrs Lowndes. Mr Lowndes continued to reside in the property following his separation from Mrs Lowndes. The plaintiff sought an order for possession of the property and applied for summary judgment. The legal issues before the Court were whether the defendant had a tenable defence to the claim for possession and, if not, whether the plaintiff was entitled to costs on a particular basis.

The Court found that there was no lease or tenancy agreement in place between the Trust and Mr Lowndes. As such, he was considered an unlawful occupier under the High Court Rules. The Court noted that the onus was on the plaintiff to satisfy the Court that the defendant did not have a defence to the cause of action. Despite the defendant's initial opposition, he ultimately withdrew his opposition and did not appear at the scheduled hearing, leading the Court to conclude that summary judgment could be entered for the Trust. The Court further determined that the defendant's conduct in relation to the case had contributed unnecessarily to the time and expense incurred by the Trust. Therefore, the Court ordered the defendant to pay costs on a 2B basis with a 20% uplift, as well as disbursements.

In conclusion, the Court made several orders, including an order for the defendant to give the Trust vacant possession of the property by a specified date, reserving leave for the Trust to apply for further orders as required. Additionally, the Court ordered the defendant to pay the Trust costs on a 2B basis with a 20% uplift, as well as disbursements in a specified total sum.

Orders