Caldwell v Jessop

[2021] NZHC 1319

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

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

CIV-2021-416-1

[2021] NZHC 1319

BETWEEN

EDNA BLIGH CALDWELL

Plaintiff

AND

PETER FRANCIS JESSOP

Defendant

Hearing:	4 June 2021
Appearances:	A Kalinowski for plaintiff Defendant in person
Judgment:	4 June 2021

REASONS JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]This proceeding was called in the Gisborne list today.

[2]                 Having heard from Ms Kalinowski for the plaintiff and from Mr Jessop, I informed the parties what the outcome of the proceeding would be and indicated that I would give reasons in writing.

[3]                 The reason I did not give an oral judgment at the time was that there were technological  difficulties  associated  with  the  VMR   remote   connection   with Ms Kalinowski who was in Auckland and Mr Jessop who was in the Gisborne High Court.

[4]                 The plaintiff owns a property at 320 Wharf Road, Hicks Bay, Gisborne. She seeks an order requiring the defendant, who has been living in the property since 2003, to give vacant possession of the same.

CALDWELL v JESSOP [2021] NZHC 1319 [4 June 2021]

[5]                 It is unnecessary to go into a lengthy description of the background, which is set out in the pleadings and other documentation before the Court because, ultimately, the defendant has conceded the plaintiff’s entitlement to the order sought. As he explained, his circumstances have changed because his children cannot return from Australia to visit him and therefore he is prepared to vacate the property.

[6]                 Accordingly, and by consent, I enter summary judgment for the plaintiff against the defendant for the orders sought in the prayer for relief in her statement of claim.

[7]Two issues arose in the course of the hearing with which it is necessary to deal.

[8]                 First, there was an  issue  relating  to  timing.  On  behalf  of  the  plaintiff, Ms Kalinowski sought an order that the defendant vacate the property in very short order. She suggested 48 hours. The defendant said that he was in the process of packing up but that he needed a month to make arrangements to move. The defendant has been in the property for a long time. He is entitled to a reasonable period of time to move, and it seems to me that it is not entirely unreasonable for him to expect to have a month to do so.

[9]                 Second, the defendant raised an issue as to precisely what he could take with him. There seems to be some suggestion that the defendant is dismantling aspects of the dwelling with a view to removing these. I have made it abundantly clear to the defendant that he may take his own personal possessions that are not, and have never been, fixed to the land. If the defendant does not understand what that means, he will need to get some advice on the point. Any fixture is to remain, and I have warned the defendant that if he were to start dismantling any structure on the property and taking it with him he would risk being in contempt of the Court’s order.

[10]             That leaves only the question of costs. In my view, the plaintiff is unquestionably entitled to her costs.

[11]On those bases, I make the following orders:

(a)I enter summary judgment in the plaintiff’s favour against the defendant and order that he vacate the plaintiff’s property by 4.00 pm on Friday, 2 July 2021;

(b)The plaintiff is to have her costs on a 2B basis together with such disbursements as may be allowed by the Registrar.

Associate Judge Johnston

Solicitors:

Smith and Partners, Auckland for plaintiff