Lynn v Lynn

[2025] NZHC 1136

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2025-412-004

[2025] NZHC 1136

IN THE MATTER

of the Estate of Brian Norman George Lynn (deceased)

BETWEEN

JULIE ANN LYNN as executor of the Estate of Brian Norman George Lynn

Plaintiff

AND

PAUL TERENCE LYNN

Defendant

Hearing:	On the papers
Counsel:	H A Evans for Plaintiff and V P Kenworthy for Plaintiff No appearance for Defendant
Judgment:	13 May 2025

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 13 May 2025 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

LYNN v LYNN [2025] NZHC 1136 [13 May 2025]

[1]                This is an application for summary judgment by the plaintiff against the defendant.

[2]                The plaintiff is the executor of the estate of Brian Norman George Lynn formerly of Dunedin. The sole remaining asset of the estate is a freehold property at Dunedin. The defendant is one of the residuary beneficiaries in the estate and was formerly an executor of the estate but was removed as an executor by order of Mander J on 15 November 2023.1 The relevant background is set out in greater detail in the judgment of Mander J.

[3]                The plaintiff wishes to advance the administration of the estate and sell the property. She is unable to do so as the defendant occupies the property. He does not have any lease, licence or other lawful right to be in occupation. He has been asked to vacate the property but has not done so. This has forced the plaintiff to bring this application for summary judgment for an order granting her possession of the property and costs.

[4]                The defendant was served with the proceeding by affixing the documents to the door of the property in accordance with an order for substituted service made by Associate Judge Lester on 13 March 2025.

[5]                The obligation is upon the plaintiff to satisfy the Court that the defendant has no arguable defence to her claim.2 Having considered the papers in support of the summary judgment application, I am satisfied the defendant has no lawful right to remain in occupation of the property and has had reasonable notice to give up possession of the property to the plaintiff but has failed to do so. He has taken no steps in the proceeding nor raised any matter in defence of the claim.

[6]                The plaintiff has satisfied the burden upon her to establish that the defendant has no arguable defence. There shall be an order for summary judgment in favour of the plaintiff that she is entitled to immediate possession of the property.

1      Lynn v Lynn [2024] NZHC 3172.

2      High Court Rules 2016, r 12.2(1).

[7]                In relation to costs, the plaintiff seeks an order that an award of costs be payable by the defendant from his share of the estate. I am satisfied it is appropriate to make such an order in circumstances where the defendant has acted unreasonably, failing first to act in accordance with his duties as an executor of the estate and then in unnecessarily failing to engage with the plaintiff forcing the estate to incur legal and other costs.

[8]                The plaintiff has submitted a schedule of costs and disbursements claimed. Costs are claimed on a 2B basis which is appropriate. In respect to disbursements, I have made the following changes to what has been submitted:

(a)I have deducted the filing fee on the application for summary judgment as a fee waiver has been granted;

(b)I have deducted the fee for issuing a possession order which has not yet been incurred and will be recoverable as part of any execution process; and

(c)I have added the cost of sealing the judgment on this application.

Result

[9]                The plaintiff is granted an order that she is entitled to immediate possession of the land and buildings at 300 Highcliff Road, Highcliff, Dunedin 9013 being Lot 16 on Deposited Plan 6499 comprised and described in Record of Title OT339/154.

[10]            The plaintiff is awarded costs of $11,472 and disbursements of $984.32 which are to be paid by the defendant in his personal capacity out of his share of the estate of Brian Norman George Lynn.

O G Paulsen Associate Judge

Solicitors:
Pegasus Bay Law Ltd, Christchurch