Lunn v Lee

[2023] NZHC 1275

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2022-441-050

[2023] NZHC 1275

IN THE ESTATE

of Barbara Jean Lee

UNDER

Part 13 of the High Court Rules

IN THE MATTER

of recovery of land from an unlawful occupier

BETWEEN

STEPHEN PETER LUNN

Applicant

AND

CATHERINE JILLIAN LEE

Respondent

On the papers
Counsel:	D J O’Connor for Applicant
Judgment:	25 May 2023

JUDGMENT OF RADICH J

[1]                 The applicant, as trustee of the estate of the late Barbara Jean Lee (Barbara), has obtained in this proceeding an order for vacant possession of the property belonging to Barbara’s estate. The order was made in in a judgment of Churchman J on 7 February 2023. Barbara’s daughter, Catherine Lee, is the respondent. She is still living at the property despite the order having been made and served upon her.

[2]                 The relevant background to the proceeding and leading up to the judgment of Churchman J is described in that judgment and is not repeated here. When the sealed orders that followed Churchman J’s decision were served on the respondent, the process server, who was invited on to the property when serving the documents, observed that the air conditioning unit, waste disposal unit, curtains and washing line

LUNN v LEE [2023] NZHC 1275 [25 May 2023]

had been removed from house, that windows in the lounge and bathroom had been broken and that there was evidence of a fire on the carpet in the lounge. A concrete slab over the bathroom gully trap was gone, as was a manhole cover in the driveway. The house was without electricity and in a state of disrepair. There was a pile of rubbish in the front yard including a television set, a motor scooter, a shopping trolley and other household items.

[3]                 Under r 13.9 of the High Court Rules, once three months have elapsed after the date on which a judgment is given in a proceeding to which 13 of the rules apply – in this case, the judgment of Churchman J – a possession order to enforce the judgment may issue with the leave of the Court. Under r 13.9(2), an application for leave under this rule may be made without notice unless a Judge otherwise directs.

[4]                 There is no doubt that a possession order is able to be issued in the circumstances described under r 13.9. The circumstances here are such that I need not make a direction that notice be given. The respondent has been served with all of the relevant documents and has chosen not to take any steps. In addition, under r 17.81, if a judgment orders a party to deliver possession of land or chattels to another party, that other party may issue a possession order. Under r 17.25, the applicant is entitled to the costs and expenses in respect of and incidental to issuing an enforcement process such as this and may levy those costs and expenses from the respondent.

[5]                 The applicant, responsibly, has sought an order that the writ of possession be issued but that it lie in Court unexecuted for two weeks from the date on which the judgment granting the writ is served on the respondent in order to give the respondent further time to comply and to vacate the property. The applicant has indicated that a copy of the judgment will be served as soon as practicable after it is delivered and that an affidavit of service will be filed.

[6]                 The applicant would be entitled to seek a writ of arrest in the circumstances as they stand at present. However, it has said, again sensibly, that, as executor of the estate and given that the respondent is Barbara’s daughter, it wishes to take a sensible and practical approach and still hopes that the respondent will vacate the property

without unnecessary upset.    That is why I will direct that the writ lie in Court unexecuted for two weeks.

[7]                 I am satisfied that it is appropriate for orders to be made on this basis. Accordingly, I make the following orders:

(a)The applicant may have possession order sealed in the following terms:

TO: the Sheriff of the High Court, Napier Registry (or other officers named by the Sheriff)

In this possession order, liable party means Catherine Jillian Lee.

(1)  This Court orders that you are authorised and required to take possession for Stephen Peter Lunn (the entitled party) of:

Land owned by the entitled party situated at 109A Townshend Street, Hastings, legally described as an estate in fee simple being a 2/3rds share of Lot 1 Deposited Plan 22353 and an estate in leasehold being Flat 2 Deposited Plan 348866 (Memorandum of Lease No. 6455728.2), Record of Title Identifier 200620 (Hawke’s Bay Registration District), ejecting others, in particular the liable party and her invitees or agents, from the land as necessary and to seize and take possession of any chattels owned by such persons which remain on the entitled party’s land, as necessary.

(2)  You are authorised to deliver possession of any land or chattels received under this possession order to the entitled party.

(b)As between the Court and the applicant, the applicant shall indemnify the Court for all costs involved in taking possession of the land and chattels.

(c)As between the respondent and the applicant, the respondent is to pay to the applicant on a 2B basis the costs of and incidental to this

application, the orders made hereon, and the expenses of issuing and effecting the possession order (including but not limited to the Sheriff’s costs referred to above, such costs and expenses to be proved to the reasonable satisfaction of the Registrar).

(d)The writ of possession may be issued forthwith.

(e)The applicant is to serve a copy of the judgment granting the writ on the respondent as soon as practicable after the judgment is delivered and file an affidavit of service.

(f)Leave is reserved to the applicant to apply for further directions if necessary.

Radich J

Solicitors:

Heaphy & Co, Hastings for Applicant