Steinbauer v Steinbauer

[2022] NZHC 911

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 911

BETWEEN

KURT RITCHIE STEINBAUER as executor of the estates of Judith Eleanor Steinbauer

and Graeme Robert Cooper Plaintiff

AND

MATTHEW VINCENT STEINBAUER

Defendant

Hearing:	3 May 2022
Appearances:	A R Davie for Plaintiff Defendant in person
Judgment:	3 May 2022

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[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.

STEINBAUER v STEINBAUER [2022] NZHC 911 [3 May 2022]

[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]                 The plaintiff has commenced this proceeding in which he seeks summary judgment under pt 12 or pt 13 of the High Court Rules 2016 for an order for vacant possession of the property. The defendant opposes that application. He has filed no notice of opposition or affidavit evidence and taken no other formal step in the proceeding. The day before the hearing the defendant emailed the Registrar saying that he was unwell and seeking an adjournment. Despite this he made arrangements to telephone in and fully participated in the hearing. There was therefore no need to rule on the informal application for an adjournment (which, in the circumstances, would almost certainly have been declined in any event). I gave the defendant leave to speak to his opposition to the orders sought despite the irregular nature of his involvement in the hearing.

[6]                 I am satisfied that the plaintiff has made out the basis for his application, whether that is analysed in terms of pt 12 or 13 of the High Court Rules. Taking pt 13 as the most straightforward route there is no doubt that the defendant falls within the definition of an unlawful occupier as set out in r 13.1. He is in occupation of property owned by the plaintiff without the plaintiff’s consent or that of the plaintiff’s predecessor in title (Mrs  Steinbauer).  It  seems  quite  clear  that  any  authority  Mrs Steinbauer may have given the defendant to live in the property expired either on her death or on the expiration of the three-month period she is said to have wanted the defendant to have before he had to vacate. Nor is there any basis upon which the defendant could assert that he was a tenant or sub-tenant holding over after the termination of a tenancy or a sub-tenancy.

[7]Prima facie then, the defendant is entitled to the order he is seeking.

[8]                 During the course of the hearing the defendant explained the bases upon which he was resisting the order sought by the plaintiff. In doing so, he covered a good deal of ground. I do not think I am doing the defendant a disservice by summarising the points he made as follows:

(a)First, the defendant described his relationship with his mother. He described how close this had been, and how much he did for her over the years. This included returning to the Raumati home to care for her and abandoning his life in Hawkes Bay at one stage. As I understood it the defendant mentioned this effectively as a foundation for asking the Court to infer that his mother would have wanted him to be able to remain in the property for as long as he needed to. I can draw no such inference. For a start, there is no evidence of any of these matters other than what the defendant told me during the course of the hearing (which of course is not evidence). In any event, the inference that he invites the Court to draw is simply not an available one.

(b)Second, the defendant also described what he referred to as a regime of harassment on the plaintiff’s part. He said the plaintiff had harassed him continuously since his mother’s death. He talked of having received something like eighty emails over the relevant period of time. He spoke of both verbal and physical abuse. Again, there is no evidence before the Court as to these matters. In any event, whilst, if established, they might entitle the defendant to a remedy, they are not a defence to the plaintiff’s claim or even relevant to the issue of whether the plaintiff is entitled to the order he is seeking.

(c)Third, the plaintiff spoke of his health issues. I do not doubt that he is suffering from the health problems that he described. However, again, that does not appear to me to have any potential impact on the orders sought.

[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.

[10]              In my view, none of the matters raised by the defendant in response to the application can stand in the way of the plaintiff securing summary judgment. In short I am quite satisfied that the plaintiff has established that the defendant has no arguable defence.

[11]              For those reasons, I make an order granting the plaintiff summary judgment in the terms set out in para 1(i) of his interlocutory application dated 3 March 2022. That order will come into effect on Friday 3 June 2022.

[12]              The plaintiff is also entitled to a costs order on a 2B basis, together with such costs as may be allowed by the Registrar.

Associate Judge Johnston

Solicitors:
Treadwells, Wellington for plaintiff