Sergeant v Nigro - [2019] NZHC 902

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2019-470-8

[2019] NZHC 902

UNDER the High Court Rules and the Residential Tenancies Act 1986

IN THE MATTER

of appeal against the decision of the District Court decision dated 24 January 2019

BETWEEN

CHARLES TE TOKOTU SERGEANT

Appellant

AND

ADRIENNE MAREE NIGRO AND

MICHAEL JOHN TAPSELL as trustees of the Tapsell Family Trust

Respondents

Hearing: 12 April 2019

Appearances:

G J Denize for the Appellant

M Ward-Johnson, for Respondents

Judgment:

26 April 2019

JUDGMENT OF GORDON J

This judgment was delivered by me on 26 April 2019 at 1 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Keam Standen, Tauranga
Chris Rejthar & Associates, Tauranga

Counsel: G J Denize, Tauranga
M Ward-Johnson, Tauranga

SERGEANT v NIGRO [2019] NZHC 902 [26 April 2019]

[1] This is an application pursuant to s 120 of the Residential Tenancies Act 1986 (the Act) for leave to appeal my judgment of 4 March 20191 to the Court of Appeal and an application for a stay of the orders in that judgment pending the hearing of an appeal in the Court of Appeal.2

[2] My judgment involved an appeal on a question of law against the decision of a District Court Judge upholding an order of the Tenancy Tribunal (the Tribunal) under the Act. By that order, the respondents, Adrienne Nigro and Michael Tapsell (the trustees), as trustees of the Tapsell Family Trust (the trust), were granted possession of the residential premises at 23 Otimi Street, Maketu, RD 9, Paengaroa (the property).

Background

[3] The background is set out in my judgment of 4 March 2019. I repeat the relevant paragraphs as a convenient summary:

[3] The appellant, Charles Sergeant, had been in a long-term de facto relationship with Maureen Tapsell. Mrs Tapsell originally owned the property jointly with her late husband. After her husband’s death, the property was transmitted into Mrs Tapsell’s sole name.

[4] After her husband had died, Mrs Tapsell and Mr Sergeant started a relationship. The two of them lived in the property from about 1993 throughout their relationship, apart from a period between 2006 and 2008.

[5] In 2001, Mr Sergeant and Mrs Tapsell signed an agreement pursuant to the Property (Relationships) Act 1976 designating the property as Mrs Tapsell’s separate property (the Relationship Property Agreement).

[6] The trust was created by deed on 19 June 2003 with Mrs Tapsell as the settlor. The property was transferred to the trustees of the trust in 2005. The trustees at that time were Mrs Tapsell and the trustees in this proceeding (who are her children). Mrs Tapsell died in 2016 and Mr Sergeant has continued to live in the property. He has not paid rent and the trustees have continued to meet on-going obligations and outgoings relating to the property.

[7] The property is subject to a mortgage to the Heartland Bank securing a debt in the form of…

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 Sergeant v Nigro

Details

AGLC: Sergeant v Nigro [2019] NZHC 902
Case: [2019] NZHC 902
Decision Date: 26 April 2019

CaseChat Overview and Summary

In this case, Charles Sergeant, the appellant, appealed a decision of Gordon J, in which the appeal was dismissed and the orders of the District Court upheld. The appeal was in relation to a decision of the Tenancy Tribunal, which was upheld by the District Court, that the respondents, Adrienne Nigro and Michael Tapsell, as trustees of the Tapsell Family Trust, were granted possession of a residential property. The High Court was required to decide whether it should grant leave to appeal to the Court of Appeal and whether it should stay the orders of the District Court pending an appeal. The court concluded that the appeal raised an issue of general importance beyond the parties in this case and that the balance of convenience favoured the granting of a stay. The court therefore granted leave to appeal and stayed the orders of the District Court. The stay will continue until further order of the Court of Appeal if the notice of appeal is filed within 20 working days of the date of this judgment.

The case involves Charles Sergeant, who had been in a de facto relationship with Maureen Tapsell, who originally owned a property jointly with her late husband. After her husband’s death, the property was transmitted into Mrs Tapsell’s sole name. After Mrs Tapsell’s death, the property was transferred to the trustees of a trust created by Mrs Tapsell. Mr Sergeant has continued to live in the property but has not paid rent. The Heartland Bank has issued a Property Law Act notice demanding repayment, calling up the sum of approximately $159,000, and there is a threat of a mortgagee sale. The Tenancy Tribunal granted the trustee’s application for possession of the property, which Mr Sergeant appealed to the District Court. The District Court Judge held that the trustees were entitled to possession. Mr Sergeant appealed to the High Court, which dismissed the appeal. Mr Sergeant then applied for leave to appeal to the Court of Appeal and for a stay of the orders of the District Court pending the hearing of an appeal in the Court of Appeal.

Orders