Kirkwood v Kirkwood

[2020] NZHC 3108

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-742

[2020] NZHC 3108

UNDER

the Property Law Act 2007

IN THE MATTER OF

the Estate of JOAN ROBERTSON KIRKWOOD

BETWEEN

CRAIG ROBERT KIRKWOOD

Plaintiff

AND

PAULA MARGARET KIRKWOOD

Defendant

Hearing:	23 November 2020
Appearances:	A R Gilchrist for the Plaintiff A W Johnson for the Defendant
Judgment:	23 November 2020

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:

David Rice & Associates (Francis Stott), Papakura, Auckland, for the Plaintiff Martelli McKegg (A W Johnson), Auckland, for the Defendant

Copy for:
A R Gilchrist, Barrister, Auckland, for the Plaintiff

KIRKWOOD v KIRKWOOD [2020] NZHC 3108 [23 November 2020]

[1]    The late Joan Robertson Kirkwood died on 13 April 2016. She had three children: the plaintiff (Craig) Paula (the defendant) and Louise. Probate of her will was granted on 23 May 2016. The plaintiff, Craig, is the executor of her will. Under her will, Joan made various bequests to her grandchildren and left the residue of her estate to be divided equally amongst her three children. Her estate includes a residential property at 299 Mount Albert Road, Sandringham, Auckland. Paula lives there and on her account has lived there for more than 30 years. She is unwilling to move out. Craig, as executor, has brought a proceeding seeking possession of the property and has applied for summary judgment.

[2]    The Court of Appeal re-stated the principles on plaintiffs’ summary judgment applications in Krukziener v Hanover Finance Ltd.1

The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried … The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: … The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as, for example, where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: … In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it. …

(Citations omitted)

[3]    Craig’s statement of claim also has a cause of action claiming mesne profits for Paula’s use of the property. Craig has, however, withdrawn the summary judgment application for that cause of action in light of the matters that Paula has raised in her opposition.

1      Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26].

[4]    There is no dispute as to the essential facts of the case, namely that Craig is the sole executor under his mother’s will and as executor he is the registered proprietor of the property at 299 Mount Albert Road under a transmission recorded against the title.

[5]    Paula says that she has lived on the property for more than 30 years, is a beneficiary, and has nowhere else to live. The property is in a poor state of repair. Louise, who supports Paula, describes the current state of the property as “appalling” and photographs in evidence bear this out. A registered valuer, instructed by Craig’s solicitors, gave a current market value for the property in October 2019 at $825,000, but says that if maintenance and other work were carried out to put the property into a saleable condition it would be likely worth $925,000. Louise says that she also obtained a valuation of the property – also giving a value of $825,000. Paula has not been paying the outgoings on the property. Instead, estate funds have been used to pay rates, water rates, insurance and what maintenance there has been. Nor has Paula paid the estate anything for her use of the property.

[6]    If there is to be an equal distribution of the residue of the estate, there will not be enough funds left over in the residue if the Mount Albert Road property were made over to Paula entirely. An equal distribution of the residue can only be achieved if the property is sold and the proceeds added to the funds held in the estate.

[7]    During 2017, the lawyers acting for Craig wrote to lawyers acting for Paula inviting proposals to resolve this matter and hoping that the administration of the estate could be completed as soon as possible in a cost-effective way. A follow-up letter pointed out that Paula had been receiving benefits from the estate in terms of occupation of the property, whereas the other beneficiaries had been missing out. I do not read either of those letters as making formal demand for occupation of the property. If they are said to have that effect, that proposition seems to be contestable for Paula.

[8]    In February 2019, Craig’s counsel wrote to Paula’s solicitor pointing out that the administration of the estate could not be finalised while Paula continued to live in the Sandringham property. That seems to have been the first correspondence in which a formal demand was made for Paula to leave the property. The letter requested that she leave by 4 May 2019.  Paula did not move out.  Craig’s solicitors repeated the

request in a letter of 28 February 2020. The letter also requested a response from Louise and Paula to enable a resolution, which might not involve the sale of the property. Craig’s case is that there was no constructive response.

[9]    This proceeding was started in May 2020 after the first COVID-19 lockdown had passed.

[10]   In response to the claim for possession of the property, Paula’s notice of opposition pleads that she has lived in the house for many years, that she is a beneficiary and has nowhere else to go. It is also suggested that Louise had offered to buy Craig’s effective share of the property rather than Paula move out. It is suggested that Craig has refused to take such a pragmatic approach and instead the court should exercise its discretion not to enter summary judgment.

[11]   Louise, as I have said, has also sworn an affidavit in support of Paula. She is concerned at the effect on Paula of being required to move out of the property. She says that in the past she has been willing to assist Paula in buying out Craig’s share of the property and she remains willing to work out a resolution. She claims that she does not have enough information to work out how much she should be paying to Craig, but she says that she has been in correspondence with her bank to raise funds. In response, Craig points out that he has not received any concrete offer.

[12]   There is no dispute as to the entitlement of a registered proprietor, including an executor of an estate, to obtain an order for possession of property against someone who is occupying that property, without the consent of the registered  proprietor.   Mr Gilchrist’s submissions have referred to four cases: Johnston v Cooper, Terry v Calvert, Public Trust v Jacob and Bhanabhai v Lowndes.2

[13]   The proceeding is said to be under Part 13 of the High Court Rules 2016 which allows for summary proceedings for the recovery of land. Given that formal demand has been made for Paula to vacate the property and she has not moved out, Paula appears to meet the definition of “unlawful occupier” under r 13.1. Craig has also

2      Johnston v Cooper [2018] NZHC 3087, (2018) 20 NZCPR 93; Terry v Calvert (1990) 3 PRNZ 63; Public Trust v Jacob HC Auckland, CIV-2006-404-7873, 17 December 2007; and Bhanabhai v Lowndes [2019] NZHC 1441.

applied for summary judgment under Part 12 of the High Court Rules 2016. I see no reason why the proceeding cannot be considered as coming under both Parts 12 and 13 of the Rules.

[14]   Orders under r 13.7 are discretionary. Under r 12.2 of the High Court Rules 2016 the court has a discretion whether to give judgment if the plaintiff makes out its case. Mr Johnson relies on the court’s residual discretion. I do not consider that any useful purpose would be served by not making an order for possession today and instead leaving the matter to be decided at a full hearing later. Nothing has been raised that would suggest any useful purpose in adjourning the matter. Instead, Mr Johnson’s submissions focused more on fixing a date by which Paula should comply with any order for possession.

[15]   It is important that a date be fixed for Paula to vacate the property. It is important that there be some finality. It is clear from the papers that Craig has been willing to try to resolve matters out of court if possible. He has certainly not been precipitate in bringing this proceeding. His lawyers have given every opportunity to try to resolve matters without the need for court proceedings.

[16]   Given what Louise said in her affidavit, it is appropriate to give the family a further opportunity to see if they can resolve matters. Louise’s offer to try to raise finance to buy out Craig’s interest in the property seems to be genuinely meant and it would obviously be in the interest of the whole family if she is able to give effect to it. That means that I should allow a reasonable time to give one last chance to see if the family can resolve matters themselves before formal orders take effect.

[17]   Having discussed the matter with counsel, I have come to the view that an appropriate date by which any order for possession ought to take effect is  Friday,  12 February 2021. That would give Paula enough time to arrange her affairs and to move out. It may include seeking assistance of social agencies. It also gives Louise the opportunity to see if she can help Paula.

[18]   Accordingly, I make an order for possession in favour of Craig. That order is to lie in court until Friday, 12 February 2021.

[19]   Craig is entitled to costs on the summary judgment application. Costs are to be on a 2B basis.

[20]   As for the second cause of action for mesne profits, I direct a case management conference after 12 February 2021.

………………………………….

Associate Judge R M Bell