Pyne v Pyne - [2024] NZHC 2169

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2024-463-44

[2024] NZHC 2169

BETWEEN
SHAWN THOMAS PYNE

as Executor of the Estate of PAMELA ANN PYNE

Plaintiff/Applicant

AND

GRAEME ROBERT PYNE

Defendant/Respondent

Hearing: Adjourned to:
11 June 2024 at 11.45am

30 July 2024 at 11:45am

Appearances:

James W McDougall for the Applicant No appearance for the Respondent

Judgment:

9 August 2024

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

Application for summary judgment

This judgment was delivered by me on 9 August 2024 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
Holland Beckett (James McDougall/Sophie Mossman-Young), Tauranga, for the Applicant

PYNE v PYNE [2024] NZHC 2169 [9 August 2024]

Introduction

[1] The applicant, Shawn Thomas Pyne, as executor of the estate of Pamela Ann Pyne (the Estate), has applied by interlocutory application for summary judgment for the following orders:

(a)granting the applicant possession of the property at 62 Blomfield Street,
Pukehangi, Rotorua 3015 (the Property); and

(b)costs.

Background

[2] The applicant is the executor of the Estate. The Estate owns the Property and the executor wishes to sell the Property in order to complete the administration of the Estate. The executor is unable to do this due to his brother, the respondent Graem Robert Pyne, unlawfully occupying the Property.

[3] The executor has asked the respondent to vacate the Property on several occasions, as well as through counsel. The respondent remains in the Property.

[4] The respondent has been residing in the Property since around 2010/2012 when he was released from prison. He has not contributed anything financially towards the house or paid any rent. The respondent has not entered into any tenancy agreement with the applicant, nor has the applicant consented to him remaining in the Property.

[5] On 29 April 2019, probate was granted for the last will of Ms Pamela Ann Pyne, which vested in the applicant the rights and obligations as executor of the Estate, as well as vesting all unadministered property in the applicant as executor. On the granting of probate, the applicant sought to begin administering the Estate as per the terms of the will and requested the respondent to vacate the Property and to fulfil his role as executor but the respondent refused and ignore the request.

[6] The applicant states there is another property which is available to the respondent to reside in, at 16A Wikaraka Street, Ngongotaha, which is owned by the trustees of the Graeme Robert Pyne Inheritance Trust. The applicant’s evidence is the respondent refused to re-locate.

[7] The applicant’s evidence is that the Property is the primary asset of the Estate and the Property being unable to be rented out or sold, the respondent not paying the outgoings and Council rates on the Property have gone unpaid throughout the period of the respondent’s occupation. The executor has paid these rates.

[8] The applicant’s evidence is that the applicant has tried for…

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.

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Details

Case: [2024] NZHC 2169
Decision Date: 9 August 2024

CaseChat Overview and Summary

Shawn Thomas Pyne, as the executor of the estate of Pamela Ann Pyne, applied for summary judgment against his brother, Graeme Robert Pyne, seeking possession of the property located at 62 Blomfield Street, Pukehangi, Rotorua. The applicant aims to sell the property to complete the estate administration, but this has been impeded by the respondent's unlawful occupation of the property. Despite multiple requests to vacate, the respondent has refused to leave. The respondent has been residing in the property since around 2010/2012, without contributing financially, entering into a tenancy agreement, or obtaining consent from the applicant.

The primary legal issue was whether the respondent, Graeme Robert Pyne, was an unlawful occupier of the property, thereby entitling the applicant to summary judgment for possession. The court examined if the respondent’s occupation was without the applicant’s consent or licence, and if he had not paid any rent or outgoings, thus not qualifying as a tenant. The applicant argued that as the executor of the estate, he was entitled to possession to facilitate the sale of the property, which is the primary asset of the estate.

The court found that the respondent was indeed unlawfully occupying the property. The applicant, as executor, had the right to possession for the purpose of administering the estate. The respondent had not entered into any tenancy agreement with the applicant and had not obtained any consent to occupy the property. Additionally, the respondent had not paid any rent or outgoings, confirming he was not a tenant. The court concluded that the respondent’s occupation was unlawful and granted the applicant's request for summary judgment. Consequently, the respondent was ordered to vacate the property within 28 days from the date of service of the court's sealed possession order. The applicant was also awarded costs on a 2B basis, together with disbursements as fixed by the Registrar.

Orders