Johnston v Cooper - [2018] NZHC 3087

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-001109

[2018] NZHC 3087

BETWEEN
PAUL THOMAS JOHNSTON

Plaintiff

AND

LYNDA IRENE COOPER

Defendant

JOHN GARTH COOPER

Second Defendant

Hearing: 30 October 2018

Appearances:

S R G Judd for the Plaintiff

N Scampion for the Defendant

Judgment:

27 November 2018

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 27 November 2018 at 3.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Paddy Orr & Co, Auckland Smith & Partners, Auckland

S R G Judd, Auckland N Scampion, Auckland

JOHNSTON v COOPER [2018] NZHC 3087 [27 November 2018]

Introduction

[1] Few legal principles are more firmly established than that a registered proprietor is entitled to maintain or recover possession of their land against all other persons.

[2] That is the principle relied upon here by the plaintiff, Paul Johnston, who seeks summary judgment on his claim for an order for possession of his property in Cornwallis. Though Mr Johnston is the registered proprietor, the property has been occupied by the defendants — Lynda Cooper (Mr Johnston’s sister) and John Cooper (her husband).

[3] The nature of the Coopers’ occupancy is disputed. The arrangement was informal, unsupported by any written contract. For Mr Johnston, counsel argues the defendants occupied the property under an implied licence, revocable at will. Counsel for the defendants counters that Mr Johnston granted the defendants (or at least Ms Cooper) a lease for life over the property. He also relies on a defence of equitable estoppel in reliance on Mr Johnston’s representations to that effect.

[4] The present dispute arose because Mr Johnston decided, in late 2007, he no longer wants the Coopers to occupy his property. But despite a notice to vacate, trespass notice, and application to the Tenancy Tribunal, the defendants remain unmoved. Attempts to settle the dispute out of court have, regrettably, come to nothing. So Mr Johnston commenced these proceedings on 7 June 2018.

Legal principles

[5] Plaintiff summary judgment is provided for in High Court Rule 12.2(1). The driving question is whether the defendants have no defence to the claim.1 The Court must be left without any real doubt or uncertainty.2 The onus is on the plaintiff, but

1 Pemberton v Chappell [1987] 1 NZLR 1, (1986) 1 PRNZ 183 (CA) at 185.
2 Krukziener v Hanover Finance [2008] NZCA 187, (2008) 19 PRNZ 162 at [26].

where evidence is sufficient to show there is no defence, the onus shifts to the defendants to demonstrate why the application should not succeed.3

[6] As is typical for such applications, this case is characterised by substantial factual disagreements, and summary judgment is not the appropriate procedure for resolving them all, or for assessing the credibility of the deponents. Still, the court need not uncritically accept evidence that is inherently lacking in credibility.4 Overall, it may take a robust and realistic approach to the evidence.

Factual…

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 Johnston v Cooper

Details

AGLC: Johnston v Cooper [2018] NZHC 3087
Case: [2018] NZHC 3087
Decision Date: 27 November 2018

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, considered the case of Johnston v Cooper, where Paul Johnston sought summary judgment for possession of his property in Cornwallis, which was occupied by Lynda Cooper (the plaintiff's sister) and John Cooper (her husband). The defendants argued that Mr Johnston granted them a lease for life over the property, or at least an implied licence revocable at will. The dispute arose when Mr Johnston decided in late 2007 that he no longer wanted the Coopers to occupy his property. Despite a notice to vacate, trespass notice, and application to the Tenancy Tribunal, the defendants remained unmoved. The court had to determine whether the defendants had a tenable defence to the claim for possession.

The court examined whether the defendants could establish a relevant legal or equitable interest in the land. The defendants argued that Mr Johnston granted them a life interest in the property, either explicitly or by implication. This argument was predicated on an enforceable contract, which the defendants claimed was established when they first moved in. The court found that the defendants could not demonstrate an enforceable agreement. The 18 September 2013 letter, which the defendants relied on as a written affirmation of their prior oral agreement, was too uncertain to support a life interest. The court found the letter lacked essential terms, such as the duration of the arrangement, and was not signed by the plaintiff as required for an enforceable disposition of land under the Property Law Act 2007. The court also found that the doctrine of part performance did not support the defendants' claim, as there was no evidence of conduct done on the footing of a 'life interest' contract. Therefore, the defendants had no tenable defence to the plaintiff's claim for repossession.

The court granted summary judgment in favour of the plaintiff. The defendants were ordered to provide vacant possession of the property at 111 Cornwallis Road, Cornwallis, Auckland, on a date to be agreed between the parties, or failing that, as specified by the Court. The defendants were also ordered to pay the plaintiff costs and disbursements as fixed by the Registrar.

Orders