Davis v Gwilliam

[2022] NZHC 2228

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-557

[2022] NZHC 2228

UNDER

the Administration Act 1908, Wills Act 2007

IN THE MATTER

of the Estate of ELAINE ROSE PRAM

BETWEEN

JEANINE FLORENCE DAVIS

Plaintiff

AND

JOHN CORRYN GWILLIAM AND GAYLENE MILNE

Defendants

Teleconference:

1 September 2022

Appearances:

J A Dean for the Applicant

K H Lawrence for the Respondents
B J Williams for the Interested Parties

Judgment:

2 September 2022

JUDGMENT OF COOKE J

(Refusal of stay)

[1]    The plaintiff’s application for an urgent stay dated 31 August was referred to me as Duty Judge, and I held a telephone conference on the application yesterday morning. The urgency arises because as a consequence of actions taken by the defendants, and a decision of the Tenancy Tribunal dated 17 August 2022, the plaintiff and her mother are presently being evicted by the defendants from a property.

[2]    At the conclusion of the telephone conference I dismissed the application for a stay indicating that I would issue reasons in writing. These are the reasons.

DAVIS v GWILLIAM [2022] NZHC 2228 [2 September 2022]

Background

[3]    I will record the relevant background only in brief terms. The defendants are the executors of the estate of Elaine Pram. The plaintiff is the daughter of the deceased. The plaintiff’s daughter, Alice Wade moved into the property in question shortly after Mrs Pram died. That was without the permission of the executors. There were then disputes between the executors and Ms Wade. Ultimately an agreement was reached, the material terms of which were that:

(a)the parties agreed that the occupation was not a residential tenancy;

(b)Ms Wade was to pay the rates on the property; and

(c)that the executors could give Ms Wade 90 days’ notice to vacate at any time.

[4]    The plaintiff joined Ms Wade in occupying the property at some stage. The executors were not made aware of this.

[5]    On 20 December 2021 the executors gave 90 days’ notice to Ms Wade. Notice was also given to the plaintiff. They did not move out and around 4 April 2022 they were served with trespass notices.

[6]    The executors then sought possession orders under s 65 of the Residential Tenancies Act 1986 before the Tenancy Tribunal. When the matter was before the Tenancy Tribunal the plaintiff commenced proceedings in this Court. These proceedings contend that the grant of probate to the executors should be recalled, and that probate should be granted on an earlier will. They came before me in the Judge’s Chambers List on 1 August 2022. It was pointed out by the respondents and the interested parties that the proceedings were irregular. They had been commenced under Part 19 of the High Court Rules 2016 which did not apply. Mr Dean accepted that point and he sought six weeks to file amended proceedings. I decided that I would grant the plaintiff time to replead the claims, but ordered that this be done within 25 working days.

[7]    In the meantime the dispute was dealt with by the Tenancy Tribunal which in a comprehensive decision granted the defendants’ application for a possession order under s 65 of the Residential Tenancies Act. That decision was dated 17 August 2022.1 The Tribunal also declined a stay of its order.2

[8]    This order is in the process of being executed by an eviction of the plaintiff and her daughter. That was intended to take place yesterday.

[9]    The plaintiff has then filed its application in this proceeding for a stay under  r 20.10 of the High Court Rules 2016. This is the application called before me and addressed at the telephone conference.

Assessment

[10]   Having heard from counsel I saw no basis upon which a stay could be appropriate.

[11]   The first point is that the application is, again, procedurally irregular. The application seeks a stay under r 20.10. That rule only applies when there is an appeal before the High Court under Part 20. There is no such appeal. The current proceedings are ordinary proceedings, albeit they were originally commenced wrongly under Part 19.

[12]   There is a right of appeal from decisions of the Tenancy Tribunal to the District Court. I understand that Mr Dean applied to the District Court for a stay but was advised that there was no jurisdiction to grant one. That may well be because no appeal to the District Court was filed, and any right of appeal is now out of time.

[13]   The current proceedings in this Court are ordinary proceedings. The only basis upon which orders of the kind sought could be made by this Court would be by the granting of an interim injunction. When I raised that point with Mr Dean he said he would make an oral application for an interim injunction. I accept that the somewhat chaotic procedural course adopted by the plaintiff might not be fatal if the merits were

1      Gwilliam and Milne v Wade [2022] NZTT 4342273.

2      At [34]–[35].

strongly in support of the plaintiff’s position. But for the reasons addressed below it is clear that they are not.

The merits

[14]   The first point is that the plaintiff and her daughter have no right of occupation of the property in question. They are only beneficiaries of the estate. There is no right to the property itself.

[15]   Secondly, the plaintiff’s proceedings claim that probate should not have been granted to the existing executors, and should, in fact, have been granted under an earlier will. But the plaintiff obtains no right to the property under that earlier will either, at least as I understand it. Moreover, whilst there would be a change in the executors I was advised that the first executor, Mr Gwilliam would remain an executor. I was also advised that Mr Gwilliam is of the view that the plaintiff and her daughter should be removed from the property as they were not paying any rent, they were causing damage to the property, and they had no right to possession.

[16]   Even apart from the lack of any rights of possession there is considerable difficulty in granting any form of relief to the plaintiff at this stage given the procedural course. I understand that probate was granted to the executors in 2020. A dispute about the right of the plaintiff and her daughter to be in the property then arose after they took possession. That dispute was resolved by the entry of the agreement I have referred to in December last year. That agreement provided that the executors had the right to terminate the occupation of the plaintiff’s daughter with 90 days’ notice.    Mr Dean sought to argue that the plaintiff and her daughter did not fully understand that agreement. I find that very difficult to accept.

[17]   No steps were taken when such notice was given to the plaintiff and her daughter. A trespass notice was then issued and ignored. Still no steps were taken. The defendants then sought an order in the Tenancy Tribunal. Proceedings were then filed by the plaintiff in this Court. When those proceedings came before me as Duty Judge on 1 August their procedural irregularities were exposed. There was no suggestion at that time of there being any application to this Court for the kind of relief

now sought. Indeed Mr Dean sought six weeks to re-plead the plaintiff’s claim at that stage.

[18]   Even then, after the decision of the Tribunal was released, the plaintiff failed to exercise her right of appeal to the District Court. Then after the appeal period has passed she makes an application to this Court, under the wrong rule, the day before eviction for an order in the nature of a stay.

[19]   For these reasons the plaintiff’s claim is without any procedural or substantive merit.

[20]   The application for a stay was accordingly dismissed. The respondents and interested parties will be entitled to costs. If these cannot be agreed they will be fixed when the costs of these proceedings overall are determined.

Cooke J

Solicitors:

John Dean Law Office, Wellington for the Applicant Greg Kelly Law Ltd, Wellington for the Respondents Gibson Sheat, Lower Hutt for the Interested Parties