Marr v Kennington - [2022] NZHC 2561

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2022-441-15

[2022] NZHC 2561

UNDER section 251 of the Property Law Act 2007

IN THE MATTER

of an application by the plaintiffs for a possession order

BETWEEN

PATRICIA JEAN MARR and KEVIN DOUGLAS ROBERTS

Plaintiffs

AND

ANGELA JANE KENNINGTON

Defendant

Hearing: 1 August 2022

Appearances:

S J Webster for Plaintiffs

J D Cameron for Defendant

Judgment:

5 October 2022

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

Introduction

[1] In early 2019, Wayne and Elizabeth Kennington sold a property they owned at 43 McGrath Street in Napier to one of their daughters, Patricia Marr, and her partner, Kevin Roberts, the plaintiffs. Wayne and Elizabeth’s other daughter, Angela Kennington, the defendant, was living in the property. She still does. The agreement for sale and purchase recognised Angela’s occupancy in the most perfunctory way. Otherwise, there is no record of the arrangements involved. (As this is a family matter, with so many of the people involved sharing the same surname, I will refer to all involved by their first names).

MARR v KENNINGTON [2022] NZHC 2561 [5 October 2022]

[2] Now, three years on, Kevin and Patricia want to sell the property. They wish to be able to offer it with vacant possession. They say they are entitled to terminate Angela’s occupancy on notice. They served Angela with a notice to quit which expired on 14 February 2022.1 Angela is refusing to vacate.

[3] Kevin and Patricia have now commenced this proceeding seeking an order pursuant to s 251(1) of the Property Law Act 2007 entitling them to vacant possession of the property.

[4]They have applied for summary judgment, which application is opposed.

Principles relating to summary judgment

[5] Part 12 of the High Court Rules 2016 provides for summary judgment. Under r 12.2(1), a plaintiff may apply for summary judgment where the plaintiff contends that the defendant has no arguable defence to the claim.

[6] A summary judgment is intended to enable plaintiffs to secure judgment without undue delay where it is clear there is no defence.2 The leading case is Krukziener v Hanover Finance Ltd where the Court of Appeal summarised the principles that apply in the following terms:3

[26] The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claims; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1 at [3] (CA). 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: MacLean v Stewart (1997) 11 PRNZ 66 (CA). 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…

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 Marr v Kennington

Details

AGLC: Marr v Kennington [2022] NZHC 2561
Case: [2022] NZHC 2561
Decision Date: 5 October 2022

CaseChat Overview and Summary

The case of Marr v Kennington involves a dispute between Patricia Marr, Kevin Roberts, and Angela Kennington regarding the ownership and tenancy of a property located at 43 McGrath Street in Napier. Patricia and Kevin, the plaintiffs, seek a possession order to evict Angela, who has been living in the property since it was purchased by her parents, Wayne and Elizabeth Kennington, in 2002. The plaintiffs argue that Angela's tenancy is terminable on one month's notice, as per section 210 of the Property Law Act 2007, and that they have served a notice to quit which expired on 14 February 2022. Angela, the defendant, contends that she has a long-term lease for life, which was an understanding between her parents, the plaintiffs, and herself during the sale of the property. The case raises issues of family arrangements, the enforceability of unwritten agreements, and the applicability of the doctrine of part performance or equitable estoppel.

The court was required to decide whether there was an arguable defence to the plaintiffs' claim for summary judgment. The primary issue was whether Angela had a valid long-term tenancy agreement, or if the arrangement was terminable on one month's notice as the plaintiffs claimed. The court also had to consider whether the doctrine of part performance or equitable estoppel could be invoked to enforce an unwritten agreement. The court's assessment of the evidence and the application of legal principles were central to the outcome of the case.

In dismissing the plaintiffs' application for summary judgment, Associate Judge Johnston found that there were significant factual disputes that needed to be resolved at a full trial. The court held that Angela had presented sufficient evidence to support her claim of a long-term lease, and that there were material differences between the case at hand and the cases cited by the plaintiffs. The court was not convinced that there was no reasonable defence to the plaintiffs' claim, and therefore denied the application for summary judgment. The court also noted that the doctrine of part performance or equitable estoppel might prevent the plaintiffs from terminating Angela's lease, and that Angela should have the opportunity to argue her case at a full hearing. The decision highlighted the importance of resolving fundamental factual controversies before granting summary judgment.

The final orders of the court were to dismiss the plaintiffs' application for summary judgment and to reserve costs, which may be determined by the parties or through a memorandum if necessary. The case will proceed to a full hearing to determine the validity of Angela's long-term tenancy agreement and the enforceability of any unwritten arrangements between the parties.

Orders