RKB Consulting Limited v Baird
[2023] NZHC 822
•18 April 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-002074
[2023] NZHC 822
UNDER Part 13 of the High Court Rules 2016 IN THE MATTER
of an application for summary judgment (recovery of land)
BETWEEN
RKB CONSULTING LIMITED
Plaintiff
AND
ANDREW JAMES BAIRD
Defendant
Hearing: 17 April 2023 Appearances:
T Homes for the Plaintiff
No appearance by or for the Defendant
Judgment:
18 April 2023
JUDGMENT OF ASSOCIATE JUDGE GARDINER
This judgment was delivered by me on 18 April 2023 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date.......................................
Solicitors:
Vallant Hooker, Auckland
RKB CONSULTING LTD v BAIRD [2023] NZHC 822 [18 April 2023]
Introduction
[1] RKB Consulting Limited (RKB) was incorporated by Russell and Kathleen Baird. They are directors and shareholders of the company.
[2] RKB owns a property at 96 Taniwha Road, Waerenga, Te Kauwhata. It is a grazing lifestyle block on which there is a 1940s weatherboard home and other buildings. The property is currently occupied by one of the Bairds’ six adult children, Andrew Baird.
[3] RKB has asked Andrew to vacate the property in order to sell it to a third party. Andrew has refused to leave the property.
[4] RKB has filed a claim under Part 13 of the High Court Rules 2016 (The Rules) for an order requiring Andrew to vacate and give up possession of the property. RKB applies for summary judgment of its claim.
[5] Andrew has taken no steps in this proceeding other than to contact the Registry and solicitor for RKB prior to the second call. As a result of that contact, the proceeding was adjourned by consent. Directions were made for Andrew to file any notice of opposition, affidavit, or other document in respect of the application for summary judgment, or the proceeding. However, Andrew did not file any documents or appear at the ensuing third call.
[6] The critical issue I must determine is whether RKB has established that Andrew has no defence to the claim that he is unlawfully occupying the property.
Relevant legal principles
[7]Rule 12.2(1) of the Rules 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.
[8] The “well settled” principles on a summary judgment application are summarised in Krukziener v Hanover Finance Ltd:1
The question … is whether the defendant has no defence to the claim; that is, that there is no real question to be tried. 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. 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. 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.
(citations omitted)
[9] Rule 13.2 of the Rules provides that Part 13, summary proceedings for the recovery of land, applies to every proceeding in which the plaintiff claims the recovery of land that is occupied solely by “unlawful occupiers”.
[10]“Unlawful occupier” is defined in r 13.1:
In this Part, unlawful occupier means a person who –
(a)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 subtenant holding over after the termination of a tenancy or subtenancy.
Background
[11] Russell and Kathleen established mirror trusts, the Russell Baird Family Trust and the Kathleen Baird Family Trust (together, the Baird Family Trusts). Their six children were beneficiaries. The Baird Family Trusts lent money to Russell and Kathleen’s children to purchase properties or if they needed temporary financial assistance.
[12] In around 2014, Russell and Kathleen agreed to assist Andrew to buy a family home for him and his then wife via the Baird Family Trusts. In 2016, Russell and
1 Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26].
Kathleen identified and approved the Te Kauwhata property. The purchase price was
$650,000. The Baird Family Trusts paid the $65,000 deposit.
[13] The parties originally intended that the Baird Family Trusts and Andrew would own the property as tenants in common (in unequal shares). The Baird Family Trusts would contribute most of the cash for the purchase, and therefore own the greater share. Andrew would draw down a home loan from ANZ.
[14] A Deed of Nomination was signed recording that the trustees of the Baird Family Trusts and Andrew would purchase the property. A Property Sharing Agreement was signed which set out their intended respective shares in the property.
[15] The Baird Family Trusts paid $170,750.00 into a solicitor’s trust account in anticipation of settlement. Andrew was to contribute $160,000 towards the property, borrowed from ANZ.
[16] Just prior to settlement, it was discovered that the Baird Family Trusts needed to be GST registered to complete the purchase. The Trusts were not GST registered. Russell, Kathleen and Andrew decided that RKB (which was GST registered) would purchase the property instead. Andrew would not need the ANZ borrowing or to contribute any money towards the purchase.
[17] A second Deed of Nomination was signed, which nominated RKB as purchaser of the property. A further $170,000 was paid into the solicitor’s trust account by the Baird Family Trusts in anticipation of settlement. The relevant shareholders’ and directors’ resolutions were signed.
[18] The purchase of the property settled on 6 July 2016, with the settlement amount met entirely by the Baird Family Trusts. Russell deposes that Andrew contributed nothing towards the purchase price, the associated fees, disbursements, or the penalty interest charged for late settlement.2
2 Affidavit of Russell King Baird sworn 13 October 2022 at [33] and [37].
[19] As the Baird Family Trusts contributed all the money to purchase the property, a debt was recorded as owing by RKB to the Baird Family Trusts. That debt was later assigned to Russell and Kathleen in their personal names when their mirror trusts were wound up in 2020.
Andrew moves into the property
[20] After settlement, Andrew, his then wife, and their children moved onto the property. Russell deposes that it was verbally agreed with Andrew that he would be responsible for the maintenance and upkeep of the property, that he would pay $1,000 per month to the Baird Family Trusts, and pay half the rates and insurances.3 Andrew and RKB never entered into a written agreement or tenancy agreement.
[21] Between November 2016 to February 2017 the Baird Family Trusts advanced a further $176,000 to Andrew to build a workshop on the property.
[22] Andrew paid a half share of the insurance and rates from July 2016 until mid-2018. He paid the monthly sum of $1,000 from July 2016 to February 2019.
[23] After Andrew and his wife separated in June 2019, Andrew made five further payments to the Baird Family Trusts. He paid $1,050 on 14 June 2019, then three payments of $1,050 on 15 May 2020, and a further $1,050 on 6 October 2020. Russell deposes that Andrew has not paid anything since October 2020.4
Andrew given notice to vacate
[24] Russell deposes that Andrew has refused to discuss his occupation of the property and whether he would pay any rent or move out. He and Kathleen discovered that Andrew had allowed third parties to graze cattle on the property without their knowledge or RKB’s consent.
3 Affidavit of Russell Baird at [41].
4 At [54].
[25] On 8 October 2020, Russell and Kathleen on behalf of RKB, gave written notice to Andrew to vacate the property by 9 January 2021 so it could be sold to a third party.
[26] A further email was sent on 17 January 2021, giving Andrew 42 days’ notice to vacate the property.
[27] Russell and Kathleen verbally asked Andrew whether he was going to vacate the property on 18 July 2021.
[28] Between December 2021 and May 2022, RKB’s solicitor and Andrew exchanged correspondence. An arrangement was made for a valuer to value the property, however Andrew did not come outside to meet the valuer or was not there. Consequently, the valuer could not enter the property to undertake the valuation.
Decision and orders
[29] I am satisfied that Andrew is unlawfully occupying the property without the consent of RKB. There is no tenancy agreement between RKB and Andrew. Russell and Kathleen, for RKB, have given Andrew notice to vacate the property, and he has refused to do so. His continued unwanted occupation means RKB cannot sell or otherwise deal with the property. Andrew is therefore an unlawful occupier under r 13.1 of the Rules. I am satisfied Andrew has no defence to the claim that he is unlawfully occupying the property.
[30]I enter summary judgment for RKB and order:
(a)Andrew Baird to vacate and give up possession of the property at 96 Taniwha Road, Waerenga, Te Kauwhata (being an estate in fee simple, Lot 3, Deposited Plan 332466 and Allotment 685, Taupiri Parish, Certificate of Title 132982 (South Auckland Registry)) to RKB Consulting Limited within 28 days; and
(b)that Andrew is to pay costs to RKB on a scale 2B basis and reasonable disbursements as fixed by the Registrar.
Associate Judge Gardiner
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