Bhanabhai v Lowndes
[2019] NZHC 1441
•21 June 2019
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 after the termination of a tenancy or subtenancy.
[9]A plaintiff relying on Pt 13 may apply for summary judgments, as in this case.
[10] Rule 12.2 of the High Court rules provides that the Court may give judgment against a defendant if a plaintiff satisfies the Court that the defendant does not have a defence to a cause of action in a proceeding.
[11] The onus is on the plaintiff to satisfy the Court that this position has been established.
[12]In Johnson v Cooper, the High Court noted:1
Few legal principles are more firmly established than that of (sic) a registered proprietor is entitled to maintain or recover possession of their (sic) land against all other persons.
[13] Initially, Mr Lowndes opposed the making of the orders sought, and filed papers in opposition. As the record of the case management of this proceeding shows, a timetable was set for the filing and service of submissions. This time was later extended. The case was scheduled to be argued at a fixture before me on 21 June. A week before that Mr Lowndes indicated that he would not be defending the case, putting forward medical information to the Court on a confidential basis. I understood him to be seeking an adjournment. I directed the Case Officer to enquire whether this material could be made available to counsel for the plaintiff, as it was my intention to then hear both sides in relation to the requested adjournment. Mr Lowndes expressly refused this course. The Court was therefore in possession of information relevant to Mr Lowndes’ request for an adjournment but could not hear the plaintiff in relation to it. As a result, I then set a further timetable for Mr Lowndes to file any submissions he wished to file and shortly before that deadline he informed the Court that he would not be doing so. He did not appear today, his attendance having been excused.
[14] It follows that summary judgment can now be entered for the Trust. The only issue remaining to be decided is costs.
[15]Mr Gilchrist for the Trust advises that the Trust has incurred fees of around
$23,000 on this case. He asks for an uplift over costs on a 2B basis on the ground that the Trust has been put to additional expense by Mr Lowndes not complying with
1 Johnson v Cooper [2018] NZHC 3087. See also Public Trust v Tearikinoorangi Jacobs, HC Auckland, 17 December 2007, CIV-2006-404-7873.
timetable directions, and by Mr Lowndes allowing the case to go as far as it did before he withdrew his opposition.
[16] I have reviewed the opposition put in by Mr Lowndes and the extensive material filed in support of it. In essence, Mr Lowndes sees this case as part of a much wider relationship property dispute with Mrs Lowndes, which to a point is understandable given that the Trust’s house was formerly their home. However, Mr and Mrs Lowndes elected to have their home owned by a Trust, in which they have little if any interest, and the extent to which the Trust asset is relationship property is at best moot. The beneficiaries are their children. However, that is a matter for determination on other proceedings if it cannot be agreed. I refer to it in the present context because the application of clearer thinking to the single issue raised in this case should have shown Mr Lowndes that he did not have a tenable defence to this case, from the outset. Indeed, it appears that the case could have been avoided altogether. In any event the outcome now arrived at was in my view the likely result of this case.
[17] Mr Bhanabhai, the sole trustee, has informed the Court in his affidavit that the net proceeds of sale will be retained pending agreement as to how they should be applied, or a Court order. Thus, from a financial perspective, if Mr Lowndes has any interest in the Trust he is not prejudiced by giving up possession, leaving argument as to his entitlement to any part of the Trust funds for another day.
[18] It follows that I accept Mr Gilchrist’s submission that Mr Lowndes conduct in relation to this case has contributed unnecessarily to the time during which both the Trust and the Court have been engaged on it, and therefore to the expense to which the Trust has been put. Mr Lowndes failed to comply with directions of the Court, and in my opinion pursued an argument that lacked merit. In my view he should have accepted the Trust position from the outset.
[19] Mr Lowndes opposes costs in the order suggested by Mr Gilchrist. He seeks a further hearing. I do not agree that a further hearing is necessary. This is a straightforward matter and the Court has allocated time for it to be argued today. Scale costs on a 2B basis amount to $14,160.53, approximately two-thirds of the actual costs
incurred by the Trust. Having considered the matter, I am satisfied that an uplift of 20 per cent is justified.
[20]Accordingly, I make the following orders:
(a)Orders in terms of paragraph (a) in the prayer for relief in the statement of claim.
(b)An order that Mr Lowndes will give the Trust vacant possession of the property by 5 pm on Monday 8 July 2019.
(c)Leave is reserved to the trust to apply on this proceeding for such further orders as may be required to give effect to the orders now made.
(d)Mr Lowndes will pay to the Trust costs on a 2B basis as calculated in accordance with the memorandum of counsel for the plaintiff dated 20 June, with a further 20 per cent uplift pursuant to r 14.6.
(e)Mr Lowndes will in addition pay disbursements in a total sum of
$1,900.
Associate Judge Matthews
Solicitors:
Dyer Whitechurch, Auckland
Copy to counsel: A Gilchrist, Barrister, Auckland
P H Lowndes, Auckland
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