Hettinga v Nee Harland HC Napier CIV-2011-441-255

[2011] NZHC 1475

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2011-441-255

IN THE MATTER OF     an application to recover land

BETWEEN  REMBERTUS MATHEUS JOSEPH HETTINGA AND KERRY LEIGH JEX- BLAKE

Plaintiffs

ANDJENNY LUCY NEE HARLAND First Defendant

ANDPETER ANDREW NEE HARLAND Second Defendant

Hearing:         19 May 2011 (Heard at Napier)

Counsel:         J. Bates - Counsel for Plaintiffs

P.A. Nee Harland - Second Defendant in person

Judgment:      19 May 2011

ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           Gresson Grayson, Solicitors, PO Box 1045, Hastings

RMJ HETTINGA AND KL JEX-BLAKE V JL & PA NEE HARLAND HC NAP CIV-2011-441-255 19 May

2011

[1]      Before the Court is an application for summary judgment by the plaintiffs seeking an order for recovery of possession of land against the first and second defendants.

[2]      There  is  no  Notice  of  Opposition  to  the  present  summary  judgment application nor has any statement of defence been filed in this proceeding.

[3]      Instead, the second defendant has filed two memoranda in this Court, one dated 18 May 2011 and one dated 19 May 2011.

[4]      As I understand the position from these memoranda, the essential position taken by the defendants is simply that they moved out of the house which is situated on the property some two weeks ago but need a little extra time to remove from the two outlying sheds what are described as “a number of large pieces of timber which

.... will require specialised lifting apparatus.”

[5]      In addition, before me today the second defendant Mr Nee Harland said there are  some  other  personal  items  in  the  two  outlying  sheds.    Mr  Nee  Harland confirmed, however, on behalf of both defendan ts that these items would be able to be removed from the two outlying sheds by at the latest, next Sunday, 22 May 2011.

[6]      The defendant’s formal position before me today is that, as they have moved out of the house on the property, there is effectively no need for the summary judgment order now sought to be made.

[7]      In response, Mr Bates for the plaintiffs, however, contended that the order should be made as he outlined what he said were some difficulties regarding the obtaining of insurance for the improvements on the property in particular whilst the defendants remained in occupation.

[8]      Having considered all the material before the Court, these submissions and the memoranda provided to the Court by the defendants, I am of the view that, as the application for possession orders is effectively unopposed by the defendants and

there was no real basis upon which it could be opposed put before me, the summary judgment order sought by the plaintiffs are appropriate and should be made here.

[9]      That said an order is now made that the first and second defendants are to give up possession of the land at 139 Tauroa Road, Havelock North described as Lot

2, Deposited Plan 20698, CT47541 Hawkes Bay Registry forthwith.

[10]     Notwithstanding the order I have just made, it is noted, however, that the defendants have confirmed that they would need only the next few days to remove the large items of timber and other items of their personal property which remain at present in the two sheds on the property.  Although, at this stage I am making no order regarding this aspect or placing any conditions on the possession order now made in favour of the plaintiffs, in passing, I simply comment that, under all the circumstances here, it would be expected that the plaintiffs would allow the defendants the reasonable opportunity sought after consultation to take prompt steps in a proper way to remove their property from the two outlying sheds over the next few days.  Obviously that should occur without further delay.

[11]     In the meantime, leave is reserved for any party to approach the Court further on 24 hours notice if additional directions may be required.

[12]     On the issue of costs, Mr Bates for the plaintiff has sought costs with respect to the present summary judgment application.

[13]     Mr Nee Harland on behalf of the defendants raised this issue with me today and suggested that no order for costs should be made.  There were really no formal submissions put to me by either party regarding this costs question, however.

[14]     If costs cannot be resolved directly between the parties, (and on the face of it the plaintiffs having succeeded would be entitled to costs in the usual way here), then counsel may file memoranda sequentially and I will decide the issue of costs

then based upon all the material before the Court.

Associate Judge D.I. Gendall