Stewart v Stewart - [2023] NZHC 2875

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2023-485-312

[2023] NZHC 2875

BETWEEN
WAIPU MARY STEWART AND MARIA JUDITH CHIN

Plaintiffs

AND

LAURRAINE MARGARET STEWART

First Defendant

STEPHEN WAYNE STEWART

Second Defendant

Hearing: 13 October 2023

Counsel:

N Levy KC for Plaintiffs

No appearance for Defendants

Judgment:

13 October 2023

ORAL JUDGMENT OF ISAC J

[Application for recovery of land]

Introduction

[1] This is an application under Part 13 of the High Court Rules 2016 for recovery of land. The applicants are Ms Waipu Stewart and Ms Maria Chin. They are the owners as tenants in common of a property at 5 Awatea Avenue, Paraparaumu (the property).

STEWART AND CHIN v STEWART [2023] NZHC 2875 [13 October 2023]

[2] The defendant is Ms Laurraine Stewart.1 The parties are all members of wider whānau.2 Waipu is Maria and Laurraine’s mother, and the mother of five other children.

Legal principles

[3] Rule 13.2 of the Rules provides that Part 13, summary proceedings for the recovery of land, applies to every proceeding which the plaintiff claims the recovery of land that is occupied solely by “unlawful occupiers”.

[4]“Unlawful occupiers” is defined in r 13.1 as follows:

In this part, unlawful occupier means a person who—

(a)occupies or continues to occupy land of the plaintiff without the licence or consent of a plaintiff or the plaintiff’s predecessor in title; and

(b)is not a tenant or subtenant holding over after the termination of a tenancy or subtenancy.

[5] In this case the matter has come before me by way of formal proof. The procedure for a formal proof hearing is governed by r 15.9 of the Rules. The Rule requires that the plaintiff must file an affidavit establishing each cause of action to the judge’s satisfaction. The level at which the judge is required to satisfy themselves regarding the plaintiff’s evidence is “much the same as it would be if the proceeding had gone to trial”.3

Background

[6] The background is as follows. Waipu and Maria both own the property at 5 Awatea Avenue, Paraparaumu. There is a mortgage over the property in favour of Maria’s husband, Peter. The mortgage was registered in 2018.

1      Given the common surname of the parties I refer to them by their given names. While Mr Stephen Stewart is named as a second defendant, it is accepted that he is not in occupation and the claim was not pursued against him.
2      The family background and Waipu’s relevant circumstances and needs are set out in the judgment of the Family Court in Stewart v Stewart [2021] NZFC 4324.
3      Ferreira v Stockinger [2015] NZHC 2916 at [35].

[7] The Awatea property is a four-bedroom residential home. On 18 May 2020, Waipu was transferred to the Kapiti Rest Home from Kenepuru Hospital. She has since then resided continuously at the rest home.

[8] Laurraine moved into the property when Maria and her husband went to Malaysia for a wedding in…

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 Stewart v Stewart

Details

AGLC: Stewart v Stewart [2023] NZHC 2875
Case: [2023] NZHC 2875
Decision Date: 13 October 2023

CaseChat Overview and Summary

Waipu Mary Stewart and Maria Judith Chin sought recovery of their jointly owned property at 5 Awatea Avenue, Paraparaumu, from Laurraine Margaret Stewart, who had occupied it without permission. The applicants claimed that Laurraine had moved into the property in May or June 2022 while Maria and her husband were away in Malaysia, and that she had no authority to do so. The defendants did not appear or provide evidence in their defence. The primary legal issue before the court was whether Laurraine was an "unlawful occupier" under the High Court Rules, meaning she was not a tenant, subtenant, or had the permission of the owners to occupy the property. Given that Laurraine had moved into the property without the permission of the owners, and had no tenancy agreement or other authority to be present, the court found that she was indeed an unlawful occupier. The court granted the applicants' request to recover the property, ordering Laurraine to vacate within 14 days, remove her personal belongings, refrain from damaging the property, and return the keys to Maria. The court also ordered Laurraine to pay costs to the applicants.

Orders