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 May or June 2022. The owners were not aware that she was moving in and Laurraine had no authority to do so. She does not have a tenancy agreement or any other authority or permission to be present at the property.4

Consideration and result

[9]    For these reasons, I am satisfied that there is no basis for Laurraine to remain in possession of the property and it is appropriate to grant the application. Accordingly I make the following orders:

(a)first, the defendant and any other occupier are to vacate the property within 14 days;

(b)second, the defendant is to remove all of her personal property from the premises;

(c)third, she must not intentionally or carelessly damage or permit any other person to damage the premises nor allow the premises to be used for any other purpose;

(d)fourth, at the conclusion of the 14 day period the defendant and any other occupier should leave the premises in a tidy condition and return keys that have allowed for access to Maria.

4      The evidence indicates she has been asked to leave and has been served with these proceedings. The evidence also indicates Laurraine has indicated through her solicitor an intention to leave the premises voluntarily but has not yet done so.

[10]   Finally, I grant costs against the defendant in favour of the plaintiffs on a 2B basis together with disbursements as fixed by the Registrar.

Isac J

Solicitors:

Paino & Robinson, Upper Hutt for Plaintiffs