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Dunn v Dunn

Dunn v Dunn

Case [2024] NZHC 2612 11 September 2024

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2024-488-71

[2024] NZHC 2612

IN THE MATTER

AND
of Section 14 of the Wills Act 2007

IN THE MATTER

of an application for an interim injunction preventing the exercise of an eviction notice

BETWEEN

MELANIE JOY DUNN and SAVANA MARIE DUNN

Plaintiffs

AND

ANTHONY JOHN DUNN

Defendant

Hearing: 29 August 2024

Counsel:

R J Bowden for Plaintiffs DRC Grimes for Defendant

Judgment:

11 September 2024

JUDGMENT OF BLANCHARD J

This judgment was delivered by me on Wednesday, 11 September 2024 at 2:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

Solicitors: Savage Law (Whangārei) for Plaintiffs
Thomson Wilson (Whangārei) for Defendants

DUNN v DUNN [2024] NZHC 2612 [11 September 2024]

[1] The first plaintiff, Melanie Dunn, applies for an interlocutory injunction preventing the defendant, Anthony Dunn,1 from enforcing an order of the District Court of 2 August 2024 requiring her to vacate a property in Tikipunga, Whangārei.

How Anthony became the registered proprietor of the property

[2] The property was owned by John and Mary Dunn. It was the location of their home.

[3] Melanie is the youngest daughter of John and Mary. Anthony is John and Mary’s oldest grandson. His mother is John and Mary’s oldest child.

[4] Melanie and the second plaintiff, her daughter Savana, both live at the property. Anthony lives in Perth, Australia.

[5] In December 2015, John and Mary met with Nicole Dreadon, a legal executive. They explained that they had six children but they wanted to leave the property to Anthony. Ms Dreadon says she explained to them that leaving the property to Anthony had the potential for a Family Protection Act 1955 claim from their children. The result of these discussions was that:

(a)On 11 February 2016, John and Mary executed a deed under which they sold a one-third joint tenancy interest in the property to Anthony. The purchase price of $91,666.67 was paid by way of an interest free loan from John and Mary to Anthony. The result of the sale was that John, Mary, and Anthony each had a one-third joint tenancy interest in the property. The transfer was registered on 12 February 2016.

(b)Also on 11 February 2016, John and Mary executed wills under which, if one survived the other by 14 days, they gifted all their estate to the other, but if one did not survive the other by 14 days, they gave the residue of their estates to Anthony. Anthony was appointed as executor under both wills.

1 Where surnames are common, I will for convenience, and meaning no disrespect, refer to parties by their given names.

[6] A feature of a joint tenancy is the existence of the four unities, namely unity of possession, unity of interest, unity of title and unity of time. The four unities reflect the concept that joint tenants have interests in the property that are equal in all respects.2

[7]…

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 Dunn v Dunn

Details

AGLC: Dunn v Dunn [2024] NZHC 2612
Case: [2024] NZHC 2612
Decision Date: 11 September 2024

CaseChat Overview and Summary

The High Court of New Zealand, Whangarei registry, considered an application for an interlocutory injunction filed by Melanie Joy Dunn and her daughter, Savana Marie Dunn, against Anthony John Dunn, seeking to prevent him from enforcing an eviction order from the District Court. The plaintiffs argued they had a lawful right to occupy a property in Tikipunga, Whangarei, either through an alleged oral agreement or a draft will executed by John, the father of the parties. The legal issues before the Court involved the validity of the oral agreement, the application of survivorship and severance in joint tenancies, and whether the draft will could be validated under the Wills Act 2007. The Court held that the oral agreement was not admissible as it was not raised in the Tenancy Tribunal and would constitute an abuse of process. However, the claim regarding the draft will was permissible as it could not have been raised in the Tribunal. The Court found it reasonably arguable that the joint tenancy was severed by equitable means, and that the draft will should be validated, granting the plaintiffs a life tenancy in the property. Blanchard J concluded there was a serious question to be tried and the balance of convenience favoured the plaintiffs, provided they paid market rent. The Court granted the interlocutory injunction subject to the condition that market rent be paid.

The Court's final order was for an interlocutory injunction to be granted to the plaintiffs, subject to Melanie paying market rent, which was estimated to be between $500 to $600 per week. The Court reserved leave for the parties to apply for directions if they could not agree on the rent figure and directed the parties to file memoranda regarding costs if they could not agree.

Orders