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…

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 Davis v Gwilliam

Details

AGLC: Davis v Gwilliam [2022] NZHC 2228
Case: [2022] NZHC 2228
Decision Date: 2 September 2022

CaseChat Overview and Summary

In the case of Davis v Gwilliam, the plaintiff, Jeanine Florence Davis, sought to prevent her eviction from a property owned by the estate of Elaine Rose Pram, which was being managed by the defendants, John Corryn Gwilliam and Gaylene Milne, as executors of the estate. The eviction was ordered by the Tenancy Tribunal, which ruled that Davis and her daughter, Alice Wade, had no right to occupy the property. Davis argued that the grant of probate to the executors should be recalled and that a different will should be recognised, but these claims were found to lack merit. The High Court was asked to grant a stay of the eviction, but the court found the application to be procedurally flawed and without substantive merit.

The primary legal issue in this case was whether the High Court should grant a stay of the eviction ordered by the Tenancy Tribunal. The court had to determine if the procedural irregularities in the application could be overlooked due to the merits of the case, and whether Davis and Wade had any right to occupy the property or challenge the executors' decisions. The court also needed to consider the appropriate remedies available to the plaintiff and whether the Tenancy Tribunal's decision should be upheld.

The High Court dismissed the application for a stay, finding that it was procedurally irregular and without merit. The court noted that the application for a stay was made under the wrong rule and that there was no appeal pending in the High Court. The court also found that Davis and Wade had no legal right to occupy the property, as they were merely beneficiaries of the estate. Furthermore, the court was not persuaded that Davis and Wade did not fully understand the agreement reached in December 2021, which allowed the executors to terminate their occupation with 90 days' notice. The court concluded that Davis and Wade failed to take appropriate action when the notice was given, and they did not appeal the Tenancy Tribunal's decision within the allowed time. The court found that the plaintiff's claims were without any procedural or substantive merit, and therefore, the application for a stay was dismissed.

The court ordered that the respondents and interested parties would be entitled to costs. If the parties could not agree on the costs, they would be fixed when the overall costs of the proceedings were determined.

Orders