Bird v Bird

[2022] NZHC 2213

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV-2022-416-8

[2022] NZHC 2213

UNDER

Parts 12 and 13 of the High Court Rules 2016

BETWEEN

DIANA MARY BIRD

Plaintiff

AND

MARK GERVIS BIRD

Defendant

Hearing:	19 August 2022
Appearances:	A M Simperingham and A G Dawick for Plaintiff No appearance by or for Defendant
Judgment:	1 September 2022
Reissued:	2 September 2022

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]    This matter was called in the Gisborne Associate Judge’s list on 19 August 2022. It is a summary judgment application in which the plaintiff, Diana Bird, is seeking an order for the possession of a property at 4 Cobden Street in Gisborne. The property is the principal asset of the estate of the late Jean Ursula Bird. Mrs Bird died on 24 March 2021. In her last will dated 21 August 2020 she appointed the plaintiff as the executrix and trustee. The plaintiff was granted probate of the will by this Court 20 April 2021.

[2]    The defendant has apparently been in occupation of the property since the deceased’s death. The plaintiff asserts that his occupation of the property is without

DIANA MARY BIRD v MARK GERVIS BIRD [2022] NZHC 2213 [1 September 2022]

any lawful right and that she, the plaintiff, has asked him to leave but the defendant has refused to do so.

[3]    Accordingly, the plaintiff has commenced this proceeding pursuant to pt 13 of the High Court Rules 2016 for vacant possession.

[4]    The defendant has not entered an appearance of any sort in the proceeding. In particular he has not filed a notice of opposition to the plaintiff’s application for summary judgment.

[5]    When the matter was called in the list I indicated that I was prepared to enter judgment by default in favour of the plaintiff and inquired of Mr Simperingham and Ms Munro as to the jurisdictional basis that the Court had for making an order for vacant possession. Mr Simperingham asked for an opportunity to file submissions as to that. He has now done so. Although his memorandum is dated 19 August 2022 and was filed that day, I only received it on 26 August 2022.

[6]    Be that as it may, Mr Simperingham’s submission is effectively that the jurisdiction to grant an order for vacant possession is a matter of common law. He referred me to three comparatively recent cases in that regard, Jensen v Jensen,1 Ridley v Mulholland,2 and Wyllie and Latham v Firmin.3 As it happens, I am aware of another judgment in this area, Rowan v Smith,4 simply because it is one of my own.

[7]    All of those authorities do, as Mr Simperingham says, proceed on the basis that there is common law jurisdiction to make the orders sought as indeed there must be.

[8]    I would add that it appears to me that s 251(1) of the Property Law Act 2007 may also cover the point.

1      Jensen v Jensen [2019] NZHC 329.

2      Ridley v Mulholland [2022] NZHC 1007.

3      Wyllie and Latham v Firmin [2022] NZHC 1994.

4      Rowan v Smith [2022] NZHC 739.

[9]    In any event, I am quite satisfied that there is the necessary jurisdiction and I make the order for vacant possession as sought in the prayer for relief contained in the plaintiff’s statement of claim dated 3 June 2022.

[10]   The plaintiff will also have an order for costs on a 2B basis, together with such disbursements as may be allowed by the Registrar.

Associate Judge Johnston

Solicitors:

Woodward Chrisp, Gisborne for Plaintiff