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…

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.

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Details

Case: [2020] NZHC 3108
Decision Date: 23 November 2020

CaseChat Overview and Summary

In Kirkwood v Kirkwood, Craig Kirkwood, the executor of his mother’s estate, sought possession of a property located at 299 Mount Albert Road, Sandringham, Auckland, which was left to be divided equally among him, his sister Paula, and his sister Louise. Paula, who had been living in the property for over 30 years, was unwilling to vacate the premises. Craig applied for summary judgment, claiming that Paula was an unlawful occupier. The central legal issue was whether Paula had any valid defence to Craig’s claim for possession and if she had any justification for remaining in the property. The court considered whether Paula's long-term residence and her lack of alternative accommodation constituted a defence to the summary judgment application.

The court concluded that there was no real question to be tried regarding Paula's obligation to vacate the property, as the statutory right of the executor to obtain possession of the estate property was clear. Despite Paula’s long-term residence and the property's poor condition, the court noted that Craig had the legal right to demand possession. The court also acknowledged the family’s attempts to resolve the matter amicably, but found that these efforts had not resulted in a concrete resolution. The court exercised its discretion to grant summary judgment, allowing Paula a reasonable period to vacate the property by setting a compliance date of 12 February 2021. Craig was awarded costs on the summary judgment application on a 2B basis. The court deferred the consideration of the second cause of action for mesne profits to a later date, pending a case management conference after the set compliance date.

Orders