Lunn v Lee - [2023] NZHC 110

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2022-441-050

[2023] NZHC 110

UNDER Part 13 of the High Court Rules

IN THE MATTER OF

recovery of land from an unlawful occupier

BETWEEN

STEPHEN PETER LUNN

Plaintiff

AND

CATHERINE JILLIAN LEE

Defendant

Hearing: 7 February 2023

Counsel:

D J O’Connor for Plaintiff

Oral Judgment:

7 February 2023

ORAL JUDGMENT OF CHURCHMAN J

Introduction

[1] The plaintiff, a solicitor appointed by the Court to be the trustee in the estate of the late Barbara Jean Lee (Barbara)1 has commenced proceedings seeking an order for vacant possession of a property situated at 109A Townsend Street, Hastings (the Property). As the sole executor of the estate of Barbara, the plaintiff is the registered proprietor of the Property.

[2]In her Will, Barbara directed that the Property be sold shortly after her death.

[3] The plaintiff requires vacant possession in order to carry out his duties as executor.

1 Re an application by Lister [2022] NZHC 1268.

LUNN v LEE [2023] NZHC 110 [7 February 2023]

Factual background

[4] Barbara had resided in the Property for many years prior to her death on 28 July 2021. The defendant, Catherine Jillian Lee (Catherine) is Barbara’s daughter. She moved into the Property shortly before Barbara passed away. She has refused to leave and continues to occupy the Property, along with some associates. She contributes nothing to the outgoings on the Property. There have been issues about the behaviour of Catherine and her fellow occupants of the Property which have led to Police involvement and arrests. There have also been complaints from neighbours and issues around what is said to be the consumption of methamphetamine. A patched gang member is said to be living at the Property.

[5] Catherine has behaved in an argumentative and aggressive manner and it was necessary for the two trustees named in Barbara’s Will to be replaced as a result of threats and abuse directed to them by Catherine.

[6]Barbara’s Will made two bequests:

(a)$50,000 to Catherine provided she survived Barbara; and

(b)$20,000 to Catherine’s daughter if she survived Barbara and attained the age of 25 years.

[7]Barbara bequeathed her personal items, including her jewellery, to Catherine.

[8] All other property in the estate was to be held by the trustees upon Trust to pay the net annual income from the estate to Catherine during Catherine’s lifetime and, on the death of Catherine, to pay the capital of the residuary estate to Catherine’s daughter provided Catherine’s daughter survived Barbara and attained the age of 25 years.

[9] The Property is by far the largest asset in the estate. It has an approximate value of $583,000. The estate had an ANZ term deposit investment of some $60,000 as at the date of death. That has been reduced by funeral expenses. The estate also had a cheque account which apparently now only has a balance of $4,000 remaining. It is said to have been reduced by…

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 Lunn v Lee

Details

AGLC: Lunn v Lee [2023] NZHC 110
Case: [2023] NZHC 110
Decision Date: 7 February 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Napier Registry, Stephen Peter Lunn, as the executor of the estate of the late Barbara Jean Lee, has filed a proceeding seeking an order for vacant possession of a property located at 109A Townsend Street, Hastings, against Catherine Jillian Lee, who is Barbara's daughter. The plaintiff requires vacant possession in order to carry out his duties as executor. Barbara had resided in the Property for many years prior to her death and had directed that the Property be sold shortly after her death. However, Catherine has refused to leave and continues to occupy the Property with some associates, leading to Police involvement, complaints from neighbours, and issues around the consumption of methamphetamine.

The court was required to decide whether Catherine was an unlawful occupier of the Property and if the plaintiff was entitled to an order for vacant possession. The court found that the plaintiff had established that Catherine occupies and continues to occupy the Property without his licence or consent, or the licence or consent of any predecessor in title. Catherine is also not a tenant or subtenant holding over after the termination of a tenancy or subtenancy. Therefore, she is an unlawful occupier. The court also found that the plaintiff had given Catherine a reasonable opportunity to vacate the Property but that Catherine had failed or refused to do that and had thereby become an unlawful occupier.

The court ordered vacant possession of the property located at 109A Townsend 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 3488666 (Memorandum of Lease No. 6455728.2), Record of Title Identifier 200620 (Hawkes Bay Registration District). The plaintiff is entitled to costs on this application on a 2B basis, such costs payable by the estate.

Orders