Khan v Khan

[2024] NZHC 3263

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2023-463-8

[2024] NZHC 3263

IN THE MATTER

of an application under Rule 13 of the High Court Rules.

BETWEEN

FIRDAUSSI NIGEL KHAN

Plaintiff

AND

QUENTIN ADRIAN KHAN, NORMA BAUMFIELD, ERAIA KHAN and BRUCE BAUMFIELD

Defendants

Hearing:

On the papers

Appearances:

P T Birks for Plaintiff

No appearance for Defendants

Judgment:

5 November 2024

JUDGMENT OF MOORE J

This judgment was delivered by me on 5 November 2024 at 3.30 pm, pursuant to r 11.5 of the High Court Rules.

………………………………….

Registrar/Deputy Registrar

Solicitors:

Annette Sykes & Co, Rotorua

KHAN v KHAN [2024] NZHC 3263 [5 November 2024]

These proceedings

[1]                 Firdaussi Khan has brought proceedings to remove his brother, Quentin Khan; his de-facto sister-in-law, Norma Baumfield and Ms Baumfield’s two sons, Eraia Khan and Bruce Baumfield, from his family home at 46 Ngongotaha Road in Rotorua (“the family home”).1

[2]                 The family home is co-owned by Mr Firdaussi and his siblings who each have a one-fifth share in the fee simple estate. Fardussi, Quentin and their siblings – Aubrey Khan, Dion Khan and Miriama O’Brien – inherited the estate following the death of their late father.

[3]                 Firdaussi’s proceedings are brought generally under pt 13 of the High Court Rules 2016. In essence, the nature of his claim is that he agreed that Aubrey and Norma (Aubrey’s partner) could live at the family home, provided that Aubrey maintained it and paid the outgoings (such as rates and insurance). At that time, the family home was in an apparently good state.

[4]                 Aubrey died in February 2022. Following his death, an inspection of the family home was carried out.

[5]                 Firdaussi says that the inspection revealed that the family home is now beset with water damage, numerous holes in the walls and piles of decayed rubbish, among other problems. He says that the present proceedings have been commenced because his relationship with Quentin and Norma has broken down, and because he and his siblings Dion and Miriama wish to restore the family home to its former glory. Furthermore, Firdaussi says that over $40,000 is owing in rates arrears and that Quentin is residing in a garage which fails to meet the requirements necessary for a sleep out. He says he is concerned that the property constitutes a health hazard and that it may be condemned by the local Council.

[6]                 Firdaussi’s statement of claim and  accompanying  affidavit  were  filed  on 24 February 2023.  They were served on Quentin, Eraia and Bruce on 11 April 2023.

1      I refer to the parties by their first names for ease of differentiation.  No disrespect is intended.

After efforts to serve Norma proved unsuccessful, Associate Judge Taylor made orders dispensing with the need to personally serve Norma on 11 August 2023.

[7]                 No statement of defence has been filed and the defendants have not taken any steps in respect of this proceeding. As such, Firdaussi has brought a without notice application for judgment against the defendants, seeking their removal from the family home as unlawful occupiers. He seeks judgment against them – on a without notice basis – effectively by default, as a consequence of their non-participation in these proceedings.

[8]                 The application is made in purported reliance on r 13.8, which provides that   r 15.8 does not apply to proceedings for which pt 13 of the High Court Rules applies. Rule 15.8 generally provides that if a plaintiff seeks the recovery of land and a defendant fails to file a statement of defence as required, that the plaintiff may “seal judgment that the person whose title is asserted in the statement of claim recover possession of the land”.

[9]                 The proceeding was referred to me by the Registry after a period of inaction on the file, given the last decision in relation to it appears to have been Associate Judge Taylor’s minute of August last year.

The way forward?

[10]              The slow pace in which these proceedings have progressed is both regrettable and a cause of concern. I apologise to the parties, especially Firdaussi and his siblings, Dion and Miriama.

[11]              However, and unfortunately for Firdaussi, the application is thwarted by one significant factor. It is this. Quentin, one of Firdaussi siblings, is a registered co- owner of the family home. As a registered co-owner, Quentin is, along with his siblings, entitled to concurrent possession of the whole of the family home. That is, he and his sibling co-owners are as much entitled to possession of all or any part of the family home as the other.2

2      DW McMorland and others Hinde McMorland and Sim Land Law in New Zealand (online ed, LexisNexis) at [13.001].

[12]              The consequence of this is that Quentin cannot be an unlawful occupier for the purposes of pt 13 of the High Court Rules.  While an unlawful occupier is defined in r 13.1 as a person who occupies or continues to occupy the plaintiff’s land without their licence or consent, such a definition cannot apply to Quentin because the family home is not solely Firdaussi’s (or indeed Firdaussi, Dion and Miriama’s) land. And, in any event, it would be strange to read r 13.1 in a way that included Quentin as an unlawful occupier simply because he occupied the family home without Firdaussi’s consent when he is a registered co-owner of the property himself. As co-owners have unity of possession, it necessarily follows that one cannot exclude or evict the other.3

[13]              I acknowledge that the same objection does not, at least on the face of the material before me, apply in respect of Norma and her two sons, Eraia and Bruce. However, in my view, it would not be appropriate to make the orders that Firdaussi seeks against them either through the procedure set out in pt 13 of the High Court Rules.

[14]              As pt 13 does not prescribe a complete procedure nor replace the summary judgment procedure under pt 12,4 its application is uncertain. What is clear, however, is that judgment cannot be entered by default (that is, solely because of a defendant’s failure to defend).5 Commentary thus suggests that if a proceeding under pt 13 is undefended, as is the case here, then it should proceed either by way of summary judgment if that is sought, or by applying for directions under r 1.6.6 In at least one case where summary judgment was not sought, this Court dealt with the proceedings by way of formal proof.7 To that extent, I would consider that this proceeding should at least be determined in that way if summary judgment was not sought. And I add that there is nothing to suggest that Firdaussi seeks his orders by way of summary judgment.

3      David Brown “Co-ownership” in Elizabeth Toomey (ed) New Zealand Land Law (3rd ed, Thomson Reuters, Wellington, 2017) at [6.6.03].

4      Matthew Casey and others Sim’s Court Practice (online ed, LexisNexis) at [HCRPart13.2].

5      At [HCR13.8.3].

6      At [HCR13.8.3].

7      Far North District Council v Unlawful Occupiers of Local Government Land at Waitangi [2023] NZHC 1545.

[15]              Either way, and regardless of the fact that summary judgment under pt 12 is not explicitly sought, I am not satisfied that the orders against Norma, Eraia and Bruce should be made. My reasons for this are two-fold.

[16]              First, as Quentin is a registered co-owner of the family home who has apparently been living at the family home with Norma and her two sons, it is likely the case that their occupation continues to be permitted by Quentin as a co-owner. Whether they should be liable to the co-owners for some kind of occupation rent engages an entirely different issue to whether they should be removed because they are unlawful occupiers within the meaning of r 13.1. It follows that regardless of whether the proceeding is characterised by way of summary judgment or formal proof, I am not satisfied that they have no arguable defence to an application for their exclusion and removal under pt 13. Put another way, I am not satisfied to the extent required for formal proof that the order for removal should be made.

[17]              Secondly, the certificate of title to the property indicates that Firdaussi and his siblings are tenants in common. That is because it states that each has a 1/5th share. As such, I cannot discount the likely possibility that Aubrey passed his 1/5th share on to Norma and or her two sons. The lack of information to definitively refute this adds to the hesitation I already harbour about making the orders sought.

[18]              Finally, it would be a quite extraordinary step to order on a without notice basis the removal of a co-owner and others who have an ostensibly plausible basis to remain on a property. They have been occupying the home for several years, and effectively, by default. While I acknowledge that Firdaussi (and Dion and Miriama) have genuine concerns about the state of the property and in interest in seeing the financial value of the property protected, I am uncomfortable proceeding on a without notice basis, on the papers. Leaving aside that any agreement between Firdaussi and Aubrey would not have been necessary for Aubrey to reside there, the affidavit is lacking in the information typically required (such as, for example, photographs of the state of the property and local Council information confirming rates payments are in arrears).

[19]              Given Firdaussi commenced these proceedings at the beginning of last year, I acknowledge that it is unsatisfactory that the application should only have been dealt

with now, given the result. It may be, however, that Firdaussi and his siblings have claims against Quentin and possibly Norma and the others for occupation rents, or to seek contribution against them in respect of certain expenses. Other claims might also be available. But that is not the nature of the proceedings before me. Whatever claims there may be against the defendants will need to be explored by Firdaussi, Dion and Miriama following the receipt of appropriate legal advice.

Result

[20]              Firdaussi Khan’s without notice application for judgment against the defendants as unlawful occupiers of property is declined.

[21]Given the proceeding was undefended, I make no order as to costs.

Moore J