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 years to respectfully ask the respondent to leave the Property as well as trying to get him to re-locate to the other available property, but has been unsuccessful and since November 2022 the applicant has been unable to make any direct communication with the respondent as the respondent has not returned any messages or phone calls.

Hearings on 11 June 2024 and 30 July 2024

[9]        The matter was called before the Court at 11:45am on 11 June 2024. There was no appearance by the respondent and the respondent has not filed any statement of defence, submissions, or any evidence in relation to the proceedings.

[10]      As the proceedings  were not served on the respondent in accordance  with    r 12.7 of the High Court Rules 205, the hearing on 11 June 2024 was adjourned to  30 July 2024, and the respondent was notified of the new hearing date. There was no appearance by the respondent.

[11]      The proceedings were dealt with on the papers, following the callovers in Court.

Grounds on which the orders are sought

[12]The grounds on which the orders are sought are as follows:

(a)The applicant, as executor of the Estate, is entitled to possession of the Property for the purposes of selling the Property in order to administer the Estate;

(b)the respondent has been unlawfully occupying the Property since the death of Ms Pamela Ann Pyne;

(c)the respondent did not obtain a licence or consent from the applicant to occupy the Property;

(d)the respondent has not paid any rent, Council rates or other outgoings such as insurance on the Property, and is therefore not a tenant;

(e)by written notice to the respondent, the applicant has requested the respondent vacate the Property in order for the house to be sold but the respondent has failed and/or refused to do so;

(f)the respondent does not have a defence to the applicant’s claim.

Legal principles

[13]Rule 12.2(1) of the High Court Rules 2016 provides:

12.2 Judgment when there is no defence or when no cause of action can succeed.

(1)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.

[14]      The relevant principles governing a summary judgment application are well established:1

The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell. The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but

1      Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26] (citations omitted).

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. 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 the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent or is inherently improbable: Eng Mee Yong v Letchumanan. In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel.

[15]The wording of r 12.2 “may give judgment” indicates a residual discretion.

Having regard to the various authorities, the position appears to be as follows:2

(a)The discretion implied by the use of the word “may” is to be restrictively applied. In a great majority of cases, once the court is satisfied the defendant has no defence, there is no room for the exercise of discretion.

(b)The residual discretion may be invoked to avoid oppression or injustice to the defendant where:

(i)The proceeding involves the actions or possible liability of a third party which is not before the court;

(ii)The proceedings are such that the opportunity should be given to allow discovery or other interlocutory applications to be concluded;

(iii)The circumstances of the case disclose very unusual features, the presence of which leads the court to conclude that the entry of summary judgment would be oppressive or unjust; or

(iv)The combination of complex issues of fact and law justify the dismissal of the application for summary judgment, either as a matter of discretion or because the court cannot be satisfied that the defendant has no defence.

(c)Even where the court is not satisfied that a defence has been made out, in exceptional circumstances the application may be adjourned to allow for other processes to be followed.

Analysis

[16]      Mr McDougall, for the applicant, submits that the respondent is an unlawful occupier of the Property. He refers to the definition of “unlawful occupier” in r 13.1 of the High Court Rules 2016 as:

2      Andrew Beck and others (eds) McGechan on Procedure (online ed, Thomson Reuters) at [HR12.2.11].

“(a) a person who occupies or continues to occupy land of the plaintiff without the licence or consent of the plaintiff or the plaintiff ’s predecessor in title; and

(b)is not a tenant or sub-tenant holding over after the termination of a tenancy or sub-tenancy”.

[17]      Mr McDougall refers to the decision in Stanton & Jimcock Limited v Rowling3 as authority for the proposition that the definition of Part 13 of the High Court Rules can be applied to a summary judgment application under Part 12.

[18]      Mr McDougall submits the elements of “unlawful occupation” are made out and (while not pled) establishes the respondent is trespassing on the Property and interfering with the executor’s right to possession:

(a)the applicant as executor is the registered owner of the Property and this entitles him to possession of the Property for the purposes of administering the Estate in accordance with the terms of the will;

(b)the applicant has not entered into a tenancy agreement with the respondent, nor granted any type of licence to occupy/consent to his continued occupation of the Property;

(c)the respondent is therefore unlawfully occupying the Property.

Result

[19]      I am of the view that the respondent is unlawfully occupying the Property, and given the repeated attempts by the applicant to get the respondent to vacate the Property without success, an order for his possession of the Property is appropriate.

Orders

[20]I make the following orders:

3      Stanton & Jimcock Limited v Rowling [2023] NZHC 96 at [29].

(a)the respondent is ordered to give possession of the Property to the applicant within 28 days of the date of service of the Court’s sealed possession order on the respondent;

(b)the applicant is entitled to costs on a 2B basis, together with disbursements as fixed by the Registrar.

…………………………….. Associate Judge Taylor