Sergeant v Nigro - [2019] NZHC 328

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2019-470-8

[2019] NZHC 328

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: 15 February 2019

Appearances:

G J Denize for the Appellant

M Ward-Johnson, for Respondents

Judgment:

4 March 2019

JUDGMENT OF GORDON J

This judgment was delivered by me on 4 March 2019 at 4.00 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 328 [4 March 2019]

Introduction

[1] This is an appeal against a decision of Judge Mabey QC in the Tauranga District Court dated 24 January 20191 upholding an order of the Tenancy Tribunal (the Tribunal) under the Residential Tenancies Act 1986 (the Act) in Tauranga dated 29 October 2018.2

[2] By that order, the respondents, Adrienne Nigro and Michael Tapsell, as trustees (the 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 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.

1 Sergeant v Nigro [2019] NZDC 1060.
2 Nigro v Sergeant [2018] NZTT Tauranga 4141733.

[7] The property is subject to a mortgage to the Heartland Bank securing a debt in the form of a reverse annuity mortgage. The debt is due for repayment six months after the death of the nominated resident of that property. Mrs Tapsell was the only nominated resident.

[8] The Heartland Bank has issued a Property Law Act notice demanding repayment, calling up the sum 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 328
Case: [2019] NZHC 328
Decision Date: 4 March 2019

CaseChat Overview and Summary

This appeal is against a decision of the District Court in Tauranga, dated 24 January 2019, upholding an order of the Tenancy Tribunal granting possession of residential premises to the respondents, Adrienne Nigro and Michael Tapsell, as trustees of the Tapsell Family Trust. The appellant, Charles Sergeant, had been in a long-term relationship with Maureen Tapsell, who died in 2016. Sergeant continued to occupy the property and had not paid rent. The trustees had been meeting ongoing obligations relating to the property. The property is subject to a mortgage to the Heartland Bank, which has demanded repayment and threatened a mortgagee sale. Sergeant filed a claim in the High Court challenging the validity of a 2001 Relationship Property Agreement. He seeks orders, amongst others, setting aside the Relationship Property Agreement, transferring the property from the trust to Mrs Tapsell’s estate and declaring that the trustees hold an equal share of the property as trustees on his behalf. The District Court upheld the Tribunal's decision and ordered Sergeant to vacate the property within 10 days of the decision. Sergeant filed an appeal against the decision of the District Court Judge, which was heard in this Court. The grounds of appeal were that the Judge erred in finding that Sergeant was a squatter; that the trust was entitled to possession of the property; that s 85 of the 1986 Act is limited to disputes between landlords and tenants and has no application to s 65 of the 1986 Act; and that if Sergeant’s claim in the High Court results in a right of possession, and/or a proprietary interest in the property, then that can be a matter for the High Court to determine at an interlocutory stage. The appeal was dismissed. The orders of the District Court Judge are now in force, which were that the trustees are entitled to possession of the property and that Sergeant must vacate the property within 10 days of the date of the judgment. Costs are reserved.

Orders