RUBY TAKIRI TE KAHIKA AND KATRINA CONNIE UNDERWOOD JOHN-BOY UNDERWOOD

[2024] NZHC 2933

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2024-463-53

[2024] NZHC 2933

UNDER

Parts 12 and 13 of the High Court Rules 2016

IN THE MATTER OF

summary proceedings for the recovery of land

BETWEEN

RUBY TAKIRI TE KAHIKA

Plaintiff

AND

KATRINA CONNIE UNDERWOOD

First Defendant

JOHN-BOY UNDERWOOD

Second Defendant

Hearing:	10 September 2024 at 11:45am
Appearances:	Adam Simperingham for the Plaintiff Defendants are self-represented
Judgment:	11 October 2024

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Application for summary judgment for recovery of land]

This judgment was delivered by me on 11 October 2024 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

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

Solicitors:

Woodward Crisp (Adam Simperingham), Gisborne, for the Plaintiff

Copy for:

Katarina Connie Underwood, Taupo

TE KAHIKA v UNDERWOOD [2024] NZHC 2933 [10 October 2024]

Introduction

[1]    The plaintiff, Ms Ruby Takira Te Kahika (Ms Te Kahika) has filed a statement of claim dated 20 May 2024 and an interlocutory application for summary judgment seeking the following  orders  against  the  defendants:  Ms  Connie  Underwood  (Ms Underwood) and John-Boy Underwood (Mr Underwood) of the following orders:

(a)an order under Parts 12 and 13 of the High Court Rules 2016 for recovery of possession of the property situated at 18 Hanima Avenue, Taupo;

(b)judgment for the sum of $14,320.00 on the basis of unjust enrichment.

[2]    While Ms Underwood and Mr Underwood have not filed a formal notice of opposition or affidavit in support in response to Ms Te Kahika’s application for summary judgment, Ms Underwood filed a document entitled “Statutory Declaration of Katarina Connie Underwood in response to the statement of claim filed by the plaintiff, Ruby Takiri Te Kahika dated 3rd September 2024”. It is apparent from this document that Ms  Underwood  opposes  the  granting  of  the  orders  sought  by  Ms Te Kahika.

Background

[3]    Ms Te Kahika is the administrator  of  the  estate  of  Roroihape  Rameka  (the deceased) who died intestate on 7 January 1980. The deceased had 10 children who survived her, four of whom are still alive. Of the four, one is Ms Te Kahika and the other is Ms Underwood. Mr Underwood is Ms Underwood’s son.

[4]    The land at 18 Hinemoa Avenue, Taupo,  (Record  of  Title  SA1209/125) (the Property) is the only asset of the deceased’s estate. The Property was transferred to Ms Te Kahika as administrator on 10 October 2023.

[5]    Ms Underwood’s son, Mr Underwood, has been the sole occupier of the Property since November 2011. Ms Te Kahika asserts that her brother made a verbal agreement with Mr Underwood that Mr Underwood could occupy the Property until Ms Te Kahika decided to sell the Property, providing Mr Underwood paid the rates on the Property in lieu of rent.

[6]    On 5 April 2023 Ms Te Kahika, through an agent Quadrant Properties Limited, notified Mr Underwood that she required Mr Underwood to vacate the Property by 30 July 2023. Mr Underwood failed to vacate the Property by that date.

[7]    Ms Te Kahika filed these proceedings on 20 May 2024 to obtain vacant possession  of the Property and an order for unjust  enrichment on the basis  that    Ms Underwood occupied the Property from 10 October 2023 to 20 May 2024 without paying rent.

Legal principles

Summary judgment

[8]    Rule 12.2(1) of the High Court Rules 2016 provides that the Court may give judgment against the defendant if the plaintiff has satisfied the Court that the defendant has no defence to the cause of action in a statement of claim or a part of a cause of action.

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

[23]      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 [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 the evidence is inconsistent with

1      Krukziener v Hanover Finance Ltd [2008] NZCA 187; [2010] NZAR 307 at [23].

undisputed contemporary documents or other statements by the same deponent or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331 at 341 (PC). 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 (1987) 1 PRNZ 84 (CA).

[24]      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.

Order for possession of land

[10]   The usual way to obtain an order for possession of land against occupiers without right (i.e. an “unlawful occupier”) is by summary judgment.3

[11]   An “unlawful occupier” is defined in r 13.1 of the High Court Rules to mean a person who:

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

3      Fox v Fox & Fox [2018] NZHC 1021 at [8].

25.1occupies or continues to occupy land of the plaintiff without the licence or consent of the plaintiff or the plaintiff’s predecessor in title; and

25.2is not a tenant or sub-tenant holding over after the determination of a tenancy or sub-tenancy.4

[12]   An alternative to summary judgment is the procedure under part 13 of the High Court Rules. Even where the plaintiff has sought summary judgment under r 12.1 as in the present case, the provisions of Part 13 must be complied with.5

[13]   Although Part 13 of the High Court Rules provides a different process to summary judgment, Woodhouse J in Syed Family Limited v Malik & Wilson stated:6

Syed Family Limited seeks an order for possession of Aranui Road, an order requiring Mr Malik and Ms Wilson to vacate the property. The application is intituled as one under part 13 of the High Court Rules. Part 13 has some relevance, partly in relation to the definition of “unlawful occupier”, but the procedure adopted … [by the] applicant is in fact an application for summary judgment. In consequence, the procedural deficiencies in part 13 do not arise.

[14]   Despite the “procedural deficiencies” and separate procedure in Part 13 of the High Court Rules, a registered proprietor is not precluded from seeking an order for possession by way of summary judgment against an unlawful occupier, and that the relevant definition of unlawful occupier under Part 13 can still be applied in determining an application for summary judgment in this context.

Ms Te Kahika’s position

[15]   Ms Te Kahika’s position is that Ms Underwood and Mr Underwood are occupying the Property without a licence or consent of her, as registered proprietor, or her predecessor in title, and have done so since 30 July 2023. She wishes to obtain vacant possession of the Property a part of her obligations to complete the administration of the deceased’s estate.

[16]   Ms Te Kahika has asked Ms Underwood and Mr Underwood to leave the Property but they have refused to do so.

4 High Court Rules 2016 r 13.2, and affidavit of Thomas Rowling of 8 March 2022 at [10].

5      Terry v Calvert (1990) PRNZ 63.

6      Syed Family Ltd v Malik & Wilson [2017] NZHC 1022 at [45].

[17]   In relation to the claim for unjust enrichment, Ms Te Kahika’s position is that the market rent in respect of the Property from 10 October 2023 to the date the proceedings were filed, being 20 May 2024, has been $500 per week totalling $16,000 (32 weeks x $500). Ms Te Kahika’s position is that Ms Underwood has been unjustly enriched by receiving rent to the value of $500 per week, less the amount paid in rates during that period, namely 14 instalments of $120.00 totalling $1,680.00. The claim for unjust enrichment is therefore $14,320 (being $16,000 less $1,680.00).

Ms Underwood and Mr Underwood’s position

[18]   Most of Ms Underwood’s statutory declaration of 3 September 2024 relates to the family circumstances of herself, her siblings, their children and grandchildren. It is difficult to ascertain from  the  document  any  legal  grounds  of  a  defence  to  Ms Te Kahika’s application for summary judgment. In summary, Ms Underwood’s opposition appears to be:

(a)the Property should be preserved for the whanau;

(b)Ms Te Kahika as administrator of the deceased’s estate did not contact the majority of the beneficiaries/successors to the Property, nor did she seek their written consent to ask for their support in selling it as would have been the case if the Property was situated on Māori land;

(c)the Property should be regarded as if it were owned by the whanau, and if the Court were to make an order that it be sold without the support of the  whanau,  this  would  result  an  injustice  to  Ms  Underwood,  Mr Underwood and the whanau;

(d)it was the intention of Ms Underwood’s and Ms Te Kahika’s parents that the house be retained as a place for the whanau to return to if they needed to.

[19]   Whatever the family issues were between Ms Te  Kahika, Ms Underwood,  Mr Underwood and the wider whanau, none of the objections raised by

Ms Underwood in her document are a legal basis for any reasonably arguable defence to the summary judgment application.

Result

[20]   I am of the view that the summary judgment orders sought by Ms Te Kahika should be granted. The reasons for this view are:

(a)Ms Te Kahika, as registered proprietor, is entitled to exclude all other persons from the land. She therefore has a prima facie right to the possession order sought.

(b)As administrator of the deceased’s estate, with an obligation to complete the administration and distribution of the deceased’s estate, she is entitled to the Court’s assistance to complete those obligations and to obtain possession of the Property.7

(c)There are no legal grounds put forward by Ms Underwood which give rise to any reasonably arguable defence to the summary judgment application.

Orders

[21]I make the following orders:

(a)Pursuant to Part 13 of the High Court Rules 2016, Ms Te Kahika as administrator of the deceased’s estate is entitled to possession of the land bearing the legal description of record of title SA1209/125, being the Property at 18 Hinemoa Avenue, Taupo.

(b)the defendants, Katrina Connie Underwood and John-Boy Underwood, in a proper and orderly manner deliver up to Ms Te Kahika, as

7      Fox v Fox and Fox [2018] NZHC 1021 at [24].

administrator of the deceased’s estate, vacant possession of the Property within 28 days of the date of this judgment.

(c)The defendants are to pay the sum of $14,320 to Ms Te Kahika, as administrator of the deceased’s estate, in respect of the occupation of the Property for the period from 10 October 2023 to 20 May 2024.

(d)The defendants are to pay interest pursuant to s 10 of the Interest on Money Claims Act 2016 on the amount of $14,320.

(e)The defendants are to pay costs to Ms Te Kahika as administrator of the deceased’s estate assessed on a 2B basis, together with disbursements.

…………………………….. Associate Judge Taylor