Tan aka Liang v Tomlinson

[2024] NZHC 1492

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2024-441-000023

[2024] NZHC 1492

BETWEEN

JIEYI TAN (a/k/a Jenny Liang) and YUE ZHONG LIANG
Plaintiffs

AND

SUSAN CLAIRE TOMLINSON

Defendant

Hearing:

6 June 2024

Appearances:

J D Cameron for the Plaintiffs

No appearance by or for the Defendant

Judgment:

6 June 2024

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 6 June 2024 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Willis Legal, Napier

TAN v TOMLINSON [2024] NZHC 1492 [6 June 2024]

[1]                  The plaintiffs apply for summary judgment of their claim for orders for possession and recovery of land at 271 Taradale Road, Napier, and lost rental.

[2]                 The plaintiffs are the registered proprietors of 271 Taradale Road. They purchased the property from the defendant under a mortgagee sale pursuant to an unconditional agreement to purchase the property dated 29 November 2023. Settlement occurred on 16 January 2024, and the plaintiffs became the registered owners of the property on that date.

[3]                 The defendant was not prepared to vacate the property on settlement date, and the plaintiffs agreed to her moving out at the end of January 2024.

[4]                 On 29 January 2024, the plaintiffs served a trespass notice on the defendant. The defendant has refused to leave the property.

[5]The plaintiffs depose that they intended to rent out the property for between

$580 to $670 per week. They have not, however, provided any evidence that they could have received this rental for the property over the relevant period.

[6]                 The plaintiffs served the notice of proceeding, statement of claim, application for summary judgment, and affidavit in support of the application for summary judgment on the defendant on 30 April 2024.

[7]The defendant has not filed a notice of opposition or statement of defence.

[8]                 I am satisfied that the defendant has no defence to the claim for possession and recovery of the property.

[9]                 I do not have adequate information to be satisfied that the defendant has no defence to the claim for lost rental in the sum of $650 per week. The plaintiff has leave to file evidence on this issue.

Result

[10]              I enter summary judgment for the plaintiffs on their claim for an order for possession and recovery of land at 271 Taradale Road, Napier.

[11]The defendant is required to immediately vacate the property.

[12]                The defendant will pay the plaintiffs their costs on a 2B basis and reasonable disbursements to be fixed by the Registrar.

[13]              I direct the Registrar to relist the balance of the plaintiffs’ application for summary judgment (for lost rental and interest) for hearing on the first available date.

Associate Judge Gardiner