Steinbauer v Steinbauer

[2022] NZHC 1644

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-117

[2022] NZHC 1644

BETWEEN

MATTHEW VINCENT STEINBAUER

Applicant

AND

KURT RITCHIE STEINBAUER

Respondent

Hearing (by VMR):

11 July 2022

Appearances:

Applicant in person

A R Davie for the Respondent

Judgment:

12 July 2022

JUDGMENT OF GWYN J

(Application for stay of execution of judgment)

[1]    On 3 May 2022, Associate Judge Johnston made an order granting summary judgment to the plaintiff Mr Kurt Steinbauer.1 The order made by the Associate Judge was for the possession of the property at 114B Hillcrest Road, Raumati Beach, Wellington (property). The order was to come into effect on 3 June 2022. Subsequently a possession order in relation to the property was sealed by the Court.2

[2]    Mr Matthew Steinbauer (Matthew), against whom the order for summary judgment was made, has filed a notice of appeal in the Court of Appeal and has filed an application in this Court for stay of the judgment. Although that application was initially made without notice, when it  came before Palmer J as Duty Judge on       28 June 2022 he directed that the application be served on the respondent and a case management telephone conference be held.

1      Steinbauer v Steinbauer [2022] NZHC 911 (judgment).

2      On 13 June 2022.

STEINBAUER v STEINBAUER (Application for stay of execution of judgment) [2022] NZHC 1644 [12 July 2022]

[3]    Subsequently, the respondent, Kurt Steinbauer (Kurt), has filed a notice of opposition to the application for a stay.

Background

[4]The background to this case is set out in the judgment:3

[1]        The residential property at 114B Hillcrest Road in Raumati on the Kapiti Coast is owned as to two thirds by the plaintiff, Mr Kent Steinbauer, in his capacity as the executor of the estate of the late Mr Graeme Cooper and as to one third by the plaintiff in his capacity as the executor of the estate of Mrs Judith Steinbauer.

[2]        Mr Cooper and Mrs Steinbauer were domestic partners. They lived together  in  the  property.  The  defendant,  Mr  Matthew  Steinbauer,  is  Mrs Steinbauer’s son and the plaintiff’s brother. Mr Cooper died in June 2016. Mrs Steinbauer died in July 2021.

[3]        As at the date of Mrs Steinbauer’s death, Mr Steinbauer was living at Hillcrest Road with her. He tells me that he has lived there — on and off — for twenty years.

[4]        The plaintiff’s evidence is that Mrs Steinbauer had wanted the defendant to have a period of three months from her death to vacate the property. That period expired on 14 October 2021. Despite extensive discussions and negotiations between the plaintiff and the defendant; despite the plaintiff having given the defendant an additional four months to vacate; and despite the defendant apparently having agreed, in mid-December 2021, to vacate within “a few weeks”, the defendant is still living in the property, and is reluctant to leave.

[5]       Matthew did not file any evidence in opposition to the application for summary judgment but the Associate Judge gave him leave to speak at the hearing and summarised in the judgment the reasons why Matthew was opposing the summary judgment application.4 In brief those reasons were, first, that he had had a close relationship with his mother and had cared for her over many years. Second, Kurt had been “harassing” him since their mother’s death, by way of emails and verbal and physical abuse.5 Third, the Associate Judge recorded Matthew’s ongoing health issues.

3      Judgment, above n 1, at [1]-[4].

4 At [8].

5      The Associate Judge noted there was no evidence of these allegations before the Court.

[6]       Since the order for summary judgment and the possession order were made Matthew has continued to live in the property.

Grounds for the stay application

[7]       Matthew has filed two affidavits in support of the stay application, one from Ms Carolyn McFarlane who is a close friend of his and one from Matthew himself.

[8]       In his affidavit, Matthew raises many of the issues that appear to have been considered by Associate Judge Johnston. In essence, he says that moving out of the property, and preparing for this application, have been made more difficult because he has been grieving for his mother and attempting to recover from many years of caring for her 24 hours a day, seven days a week. He says his health is poor – he is incapacitated with a severe prolapsed lumbar spinal disc, affecting his legs and therefore his mobility.

[9]       Matthew says his injuries were, in part, caused by an assault on him by Kurt, in October 2021, and he has a protection order application currently before the Porirua District Court, including an application for a s 115 occupation order. Ms McFarlane says she has known Matthew for 30 years and is aware he suffers from chronic pain syndrome. She believes Kurt did assault Matthew as alleged, although she was not present at the time.

[10]     Matthew says he is unable to move premises and will not be able to do so until an operation on his spine has been performed and he has recovered from that surgery. Finally, he notes that finding an alternative place to rent is made more difficult because he has a dog (which was his mother’s dog) that he is reluctant to part with.

[11]     However, Matthew said during the course of this hearing that he would be leaving the property within two months.

[12]     Kurt opposes the application for a stay. He says that as the executor of his mother’s estate and the estate of Mr Cooper, he wishes to market and sell the property and wind up both estates. Matthew has made a number of promises to leave the

property, which were referred to in the evidence before the High Court in the summary judgment application, but has not done so.

[13]     Kurt says he was prepared to grant his brother until 28 February 2022 to leave, and then until 1 March 2022 and the Associate Judge gave him until 3 June 2022 to do so. However, Matthew has refused to leave and is not paying rent.

[14]     Kurt denies the alleged assault. He says that, although Matthew states he was denied the ability to provide evidence in the High Court about the alleged assault, in fact he had ample time to provide any evidence he wished to but did not do so. In any event, Kurt says that the relevance of any allegation of assault to Matthew’s right or lack of right to stay in the property is not clear.

[15]     Kurt says he does not understand Matthew to be housebound, as he managed to attend the Porirua Family Court in person on 18 May 2022 and he also seemed to move freely during Kurt’s inspection of the property earlier in 2022. Kurt says that Matthew has had these medical problems for decades.

[16]     Kurt also refers to undertaking a property inspection earlier in 2022 when he found significant damage to the interior of the property caused by, he says, Matthew’s cigarette smoking. The house needs to be commercially cleaned, and the drapes and fittings need to be removed and replaced. I note that Matthew denies that he has caused any damage and points to their mother’s heavy smoking over many years.

[17]     Ms Sonja Cooper has also sworn an affidavit in opposition to the application for stay. Ms Cooper is the daughter of Graeme Cooper. Mr Cooper’s estate owns the property as to two thirds. Ms Cooper, her sister and her brother are beneficiaries under the Wills  of both Ms Steinbauer and Mr Cooper, as to one-half of the residue of    Ms Steinbauer’s assets and one-half of Mr Cooper’s assets.

[18]     Ms Cooper’s evidence is that her family has been unable to collect family belongings from the property because they are unwilling to go there while the applicant is in occupation. Ms Cooper notes that her father died over six years ago and she and her family wish to tidy up his affairs but cannot do so while Matthew

remains living there. There is a reverse mortgage on the property which continues to accrue, but Matthew has paid no rent. Ms Cooper’s evidence is that the property market has fallen substantially and interest rates have gone up while Matthew has remained in occupation of the property. She is concerned about the diminution in value of the property in the meantime.

The criteria for granting a stay

[19]     Although the applicant has filed a notice of appeal in the Court of Appeal, that does not operate as a stay of the proceedings appealed against or enforcement of the judgment.6

[20]     Despite that, this Court may do any one or more of the following pending determination of the appeal:7

(2)Despite subclause (1), the decision-maker or the court may, on application, do any 1 or more of the following pending determination of an appeal:

(a)order a stay of proceedings in relation to the decision appealed against:

(b)order a stay of enforcement of any judgment or order appealed against:

(c)grant any interim relief.

[21]     Any order the Court makes may relate to the whole of a judgment or order or to a particular form of enforcement and be subject to any conditions for the giving of security the court thinks fit.8

[22]     These provisions enable the Court to make positive directions regarding what is to happen pending the appeal.

[23]     The factors to be considered in granting a stay are summarised in McGechan on Procedure in the notes to r 12 of the Court of Appeal (Civil) Rules 2005. The Court must balance the competing rights of the party who obtained the judgment appealed from – in this case, Kurt – against the need to preserve the appellant – Matthew’s –

6      High Court Rules 2016, r 20.10(1).

7      Rule 20.10(2).

8      Rule 20.10(3).

position in the event that his appeal ultimately succeeds.9 The object is to try and arrange matters so that, when the appeal ultimately comes to be heard, the appeal court can do justice between the parties.

[24]The factors to be taken into account in the balancing exercise include:

(a)whether the appeal may be rendered nugatory by the lack of a stay;

(b)the bona fides of the applicant as to the prosecution of the appeal;

(c)whether the successful party will be injuriously affected by the stay;

(d)the effect on third parties;

(e)the novelty and importance of questions involved;

(f)the public interest in the proceeding; and

(g)the overall balance of convenience.

[25]     The apparent strength of the appeal is also generally recognised as an additional factor to be taken into account in the balancing exercise.10

Assessment

[26]     This is not a case where the questions involved in the appeal are novel or of importance beyond the parties themselves. Nor is there a public interest in the proceeding.

[27]     Matthew advises that no date has been set for the hearing of the appeal. I have some doubt that Matthew will prosecute the appeal promptly. That is in part because, as he says, his state of health makes it difficult to prepare for a court hearing.

9      Duncan v Osborne Buildings Limited (1992) 6 PRNZ 85 (CA) at 87-89.

10     Keung v GBR Investment Limited [2010] NZCA 396 at [11].

[28]     Plainly, Kurt, as the successful party in the proceeding, will be injuriously affected by the stay in that he is not able to carry out his duties as the executor of the two estates. While this application reflects an unfortunately acrimonious relationship between Kurt and Matthew, this is not simply about those two parties. As Ms Cooper’s affidavit makes clear, there is a real and continuing effect on third parties, for as long as Matthew remains in the property it cannot be sold.

[29]     The strongest factor weighing in Matthew’s favour is that, to some extent at least, his appeal may be rendered nugatory (pointless) if a stay is not granted, because Matthew would then be required to leave the property. However, if Matthew was ultimately successful in his appeal, that could potentially be addressed by an award of damages.

[30]     It seems to me that the decisive factor in the application is the apparent strength of the appeal. As Mr Davie, counsel for Kurt, notes, Matthew did not file any evidence before the Associate Judge on the summary judgment application. While Associate Judge Johnston was prepared to hear from Matthew at the hearing and noted his concerns,11 the Associate Judge also recorded that the issues raised were not a defence to Kurt’s claim or even relevant to the issue of whether he was entitled to the summary judgment order he was seeking. Associate Judge Johnston recorded:12

[9] In the end, the defendant expressly told the Court that he accepted that the plaintiff as the executor of the two estates had a responsibility to administer them; that he accepted that the house needed to be sold; and that he accepted that he would have to leave. But he asked to be left to live in the house so long as he could afford to do so and until it was sold.

[31]     I understand that Matthew feels hurt at having to leave the house that has been his home for a long time and that both parties feel aggrieved at what has occurred between them since their mother’s death. However, the reality is that on the information before me, it is difficult to see that the appeal has any prospect of succeeding. Continuing with it will cause further emotional distress, and financial cost, to both Matthew and Kurt.

11 As summarised at [5] above.

12 Judgment, above n 1, at [9].

[32]     I am however conscious of Matthew’s state of health and the need for him to find an alternative place where he and his dog can live. Having regard to all of these factors, I am prepared to give Matthew the benefit of the doubt and to grant a stay for two months. The reality for Matthew is that, if he does not move out of the property within that two month period, he will be highly unlikely to have any further indulgence from this Court.

Result

[33]     The execution of the Court order of 3 May 2022 and the possession order of 13 June 2022 are stayed until Tuesday 13 September 2022.

Costs

[34]The issue of costs on this application was not raised before me.

Gwyn J

Solicitors:

Treadwells, Wellington