Scannell v Love - [2017] NZHC 867

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-930 [2017] NZHC 867

UNDER Secttion 339 of the Property Law Act 2007

IN THE MATTER

of the Estate of Elizabeth Ann Love

BETWEEN

PATRICK BRIAN SCANNELL AND ANN MARIE JUDD

Plaintiffs

AND

FRANK ERNEST LOVE Defendant

On the papers

Counsel:

F J Handy for the plaintiffs
J C Gwilliam for the defendant

Judgment:

3 May 2017

COSTS JUDGMENT OF ASSOCIATE JUDGE SMITH

[1] This is an application by the defendant for costs, following the discontinuance of the plaintiffs’ proceeding filed under s 339 of the Property Law Act 2007 (the PLA).

Background

[2] The plaintiffs are the executors of the Estate of the late Elizabeth Ann Love (the deceased) who died on 22 February 2015. The defendant is the widower of the deceased.

[3] Under the deceased’s last will, the defendant was given the right to live in a house at 35 Wood Street, Wainuiomata, then owned entirely by the deceased, for as
long as he wished. However soon after the will was made the couple moved to

SCANNELL v LOVE [2017] NZHC 867 [3 May 2017]

8 Faulke Avenue, Wainuiomata (the Faulke property). The will was not updated before the deceased died.

[4] The Faulke property is the only asset in the deceased’s estate (other assets have passed to the defendant as surviving joint tenant). The estate was left to the deceased’s children.

[5] The defendant had lodged a caveat against the grant of probate, but he withdrew this caveat on 26 August 2015.

[6] The plaintiffs filed this proceeding on 10 November 2015. In it they alleged that the Faulke property was purchased by the deceased and the defendant as tenants in common in the shares nine tenths to the deceased and one tenth to the defendant. They pleaded that they wished to sell the Faulke property, so the deceased's debts could be paid and her estate distributed. However the defendant refused to vacate the property or agree to a sale. They sought an order for sale under s 339 of the PLA.

[7] The defendant filed a statement of defence on 16 December 2016. In it, he contended that the Faulke property was the family home of the deceased and himself under the Property (Relationships) Act 1976 (the PRA), and that he was entitled under that Act to continue to occupy the Faulke property. He denied that there were any debts owed by the estate.

[8] The defendant went on to plead that he had applied to the Family Court at Lower Hutt for orders under s 27 of the PRA, including an order for possession of the Faulke property.

[9] The defendant filed his application in the Family Court on 16 December

2015, and it was heard on 16 September 2016. In a reserved judgment Judge Binns granted an occupation order in favour of the defendant until 31 December 2017.1
Thereafter, the Faulke Property was to be sold.

1 Love v Scannell [2016] NZFC 8114.

[10]…

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 Scannell v Love

Details

AGLC: Scannell v Love [2017] NZHC 867
Case: [2017] NZHC 867
Decision Date: 3 May 2017

CaseChat Overview and Summary

The plaintiffs, Patrick Brian Scannell and Ann Marie Judd, as executors of the Estate of Elizabeth Ann Love, filed a proceeding against the defendant, Frank Ernest Love, under s 339 of the Property Law Act 2007. They sought an order for the sale of a property at Faulke Avenue, Wainuiomata, which was the only asset in the deceased’s estate. The defendant, who was the widower of the deceased, had lodged a caveat against the grant of probate but later withdrew it. He argued that the Faulke property was the family home under the Property (Relationships) Act 1976, and he was entitled to occupy it. The defendant had also applied to the Family Court for an order for possession of the Faulke property. The plaintiffs discontinued their proceeding in the High Court, and the defendant sought costs under r 15.23 of the High Court Rules.

The legal issue before the court was whether the presumption in favour of the defendant for costs under r 15.23 of the High Court Rules was displaced. The court noted that the presumption obviated any requirement for the defendant to demonstrate that the plaintiff acted unreasonably in commencing and then discontinuing the proceeding. However, the presumption may be displaced if there were circumstances which made it just and equitable that it should not apply. The court would consider the reasonableness of the respective stances of the parties up to the point of discontinuance and whether the plaintiff had reasonable grounds for believing it would be successful in the proceeding.

The court found that the presumption in favour of the defendant for costs under r 15.23 was not displaced. The court noted that the proceeding in the High Court was not the appropriate forum for the dispute over the ownership of the Faulke property. The Family Court had exclusive jurisdiction over matters relating to the division of relationship property under s 22 of the Property (Relationships) Act 1976. The defendant had chosen Option A under s 61 of the Act, electing to have the relationship property divided under the Act, and the plaintiffs were aware of that election. The court also noted that the plaintiffs had commenced the proceeding in the High Court in order to prompt the defendant into commencing proceedings in the Family Court. However, the court did not consider the costs should be as substantial as might otherwise have been the case. The court awarded costs to the defendant on a 1A basis, plus disbursements as fixed by the Registrar.

Orders