Public Trust v Turner - [2017] NZHC 2979

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
KIRIKIRIROA ROHE

CIV-2016-419-432 [2017] NZHC 2979

BETWEEN
THE PUBLIC TRUST THE EXECUTOR

AND TRUSTEE OF THE ESTATE OF THE LATE DENNIS PAUL SAMSON Plaintiff

AND

MAPUNA TERESA LYNETTE TURNER Defendant

Hearing: 8 November 2017

Appearances:

D Mayall for Plaintiff
M T Turner in person

Judgment:

1 December 2017

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
01.12.17 at 4.30 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

THE PUBLIC TRUST v TURNER [2017] NZHC 2979 [1 December 2017]

[1] The plaintiff, the Public Trust, is the executor of the estate of the late Dennis Paul Samson (“the deceased”) who passed away on 31 May 2012. The defendant was the deceased’s partner up until the time of his death. In terms of cl 6.3 of his will, the deceased conferred on the defendant a right to live in a house property that he owned at Te Aroha rent free. The licence to occupy the house was subject to a number of conditions contained in the will, including the following:

6.4This right is given to my partner Mapuna on these terms and conditions:

1.My partner Mapuna will pay the rates, insurance premiums, mortgage interest and principal repayments, and other outgoings usually paid from income on my home …

[2] On or about 17 October 2013, the property, which is situated at 27 Stanley Avenue, Te Aroha, was transferred to the plaintiff as the executor of the will. Since the time of the deceased’s death, the defendant has occupied the property without paying rent.

[3] However, the defendant has not paid the rates over the property. The current amount of unpaid rates amounts to approximately $12,000. The contention of the plaintiff is that because the defendant has failed to pay the rates since the date of death of the deceased, she has forfeited her right to continued occupation of the house property. As a result, the plaintiff seeks an order for possession of the property and a writ of possession relating to it.

Principles relating to summary judgment application

[4] Because this proceeding concerns a plaintiff’s application for summary judgment, brief reference is required to the principles which are relevant to such proceedings.

[5] The plaintiff applies for summary judgment under r 12.2(1) of the High Court

Rules, which provides:

The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.

[6] The plaintiff must prove on the balance of probabilities, therefore, that the defendant has no arguable defence.

[7] The Court of Appeal in Krukziener v Hanover Finance Ltd stated that there must be no real question to be tried.1 It further commented:

[26] … The Court will not normally resolve material conflicts of evidence or…

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 Public Trust v Turner

Details

AGLC: Public Trust v Turner [2017] NZHC 2979
Case: [2017] NZHC 2979
Decision Date: 1 December 2017

CaseChat Overview and Summary

The case of Public Trust v Turner involves the Public Trust, as the executor of the estate of the late Dennis Paul Samson, and Mapuna Teresa Lynette Turner, the former partner of the deceased, who occupied a house property owned by the deceased rent-free under the terms of his will. The deceased's will included a condition that Turner pay the rates, insurance premiums, mortgage interest, and other outgoings on the property. Turner did not pay the rates, leading to a claim by the Public Trust for an order of possession of the property and a writ of possession.

The court was required to decide whether Turner's failure to pay the rates constituted a breach of the conditions of her occupancy under the will, and whether she had any arguable defences to the claim for summary judgment. Turner argued that the circumstances surrounding the preparation of the will, her financial inability to pay the rates, and the potential for the property value to rise over time, provided a basis for resisting the Public Trust's claim. The court had to assess the validity of these defences and determine whether Turner's failure to pay the rates prejudiced the beneficiaries of the estate.

The court found that Turner's failure to pay the rates amounted to a breach of the will's conditions, as the will did not permit deferred or instalment payments. Turner's financial circumstances, while difficult, did not excuse her from the obligation to pay the rates as they fell due. The court also rejected Turner's argument that the property value increase would offset the rates arrears. Furthermore, the court held that Turner's status under the will did not afford her the protections of a tenant under the Residential Tenancies Act 1986. Consequently, the court ruled that Turner had no arguable defence to the claim for summary judgment and granted the Public Trust's request for possession of the property.

The court ordered that the Public Trust is entitled to judgment for possession of the property, and that each party bear their own costs. The judgment is not to take effect until 19 January 2018, allowing time for the parties to potentially reach a settlement. The court emphasized that Turner's failure to meet her obligations under the will was her responsibility, and any compromise would require participation from the other beneficiaries of the estate.

Orders