Chapman v Rabson - [2012] NZHC 3322

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2012-485-2107 [2012] NZHC 3322

BETWEEN WAYNE SEYMOUR CHAPMAN Plaintiff

ANDMALCOLM EDWARD RABSON Defendant

Hearing: 7 December 2012

Counsel: N Whalley with H Arathimos for Plaintiff
Defendant in Person

Judgment: 10 December 2012

JUDGMENT OF THE HON JUSTICE KÓS

[1] This is an application for summary judgment by the plaintiff trustee for vacant possession of a residential property at 153 Main Road North, State Highway
1, Paraparaumu (Property).

Background

[2] A brief background to the matter is that the plaintiff is the sole trustee of the Gallagher Rabson Family Trust (GRF Trust). He was appointed by Court order in October 2010 by Wild J. The Property is vested in him as registered proprietor pursuant to vesting orders made in March 2011 by Miller J. This followed lengthy property-related litigation between the defendant and his former partner, Ms Gallagher.

[3] Orders made by the Court of Appeal in December 2011 require the plaintiff trustee to offer the Property to the defendant (or his nominated purchaser) at current
market value, and upon terms as determined in the plaintiff’s discretion. That offer

CHAPMAN v RABSON HC WN CIV 2012-485-2107 [10 December 2012]

is open to acceptance by the defendant on the basis that the settlement is completed either by:

(a) the defendant paying the purchase price in cleared funds at settlement;

or

(b)the defendant’s obligation to pay the purchase price being satisfied by (i) a payment to the plaintiff in cleared funds of an amount to the value of Ms Gallagher’s outstanding relationship property entitlement, (ii) a series of credits to reduce the amounts owed by the GRF Trust to the Malcolm Rabson Family Trust (and the latter Trust to the defendant), and (iii) any balance of purchase price being paid to the plaintiff in cleared funds.

In the event no sale occurs in accordance with the above, on the terms specified by the plaintiff, the plaintiff is to sell the Property to best advantage.

Submissions summarised

[4] The plaintiff’s position is that he has offered the Property to the defendant for a price equal to Ms Gallagher’s outstanding relationship property entitlement. That is the sum of $463,492.68. He has requested that the defendant cooperate with the sale process. The defendant, he says, has rejected this offer, has not cooperated in the sale process, and has obstructed the plaintiff ’s real estate agent from accessing the Property. The plaintiff has revoked any occupancy rights the defendant may have had and asked him to leave the Property. The defendant has refused to do so.

[5] The defendant’s position is that he accepts that the plaintiff is the registered proprietor of the Property. He does not however accept that the plaintiff has the right to possession or the right to sell the Property. In particular he says that the amount required by way of purchase price has changed, and the plaintiff has “made incorrect statements, provided incorrect information and has not followed the orders of the…

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 Chapman v Rabson

Details

AGLC: Chapman v Rabson [2012] NZHC 3322
Case: [2012] NZHC 3322
Decision Date: 10 December 2012

CaseChat Overview and Summary

The case of Chapman v Rabson is an application for summary judgment filed by the plaintiff trustee, Wayne Seymour Chapman, seeking vacant possession of a residential property at 153 Main Road North, Paraparaumu. The property is vested in Chapman as the registered proprietor pursuant to vesting orders made by the Court. The Court of Appeal had previously ordered Chapman to offer the property to the defendant, Malcolm Edward Rabson, at current market value, with the defendant having the option to accept the offer on specified terms. The plaintiff claims that he offered the property to the defendant for a price equal to Ms Gallagher's outstanding relationship property entitlement, which is the sum of $463,492.68, but the defendant rejected the offer and refused to vacate the property.

The legal issues in this case were whether the application was defective for want of service and whether the plaintiff had established, to the required standard, that he was entitled to possession of the property. The Court found that the application was not defective for want of service as the defendant had received and was in possession of the documents. The Court also found that the plaintiff had established that he was entitled to possession of the property, as the defendant had no continuing right of occupation. The Court held that the defendant's original right to occupy the property was a mere licence, conditional on the payment of rates, which was unmet for a period of four years. Furthermore, the plaintiff had revoked the defendant's right to occupy the property on 29 June 2012, and there was no contract for sale between the parties.

Accordingly, the Court ordered the defendant to provide vacant possession of the property to the plaintiff on the expiration of eight days after service of the sealed order of the Court. Service of the order may be effected by delivering the papers to the property address, rather than by personal service. The plaintiff is also entitled to costs, to be calculated on a category 2 band B basis. If the parties cannot agree on the costs, the Court will receive short memoranda on the matter.

Orders