Turner v Public Trust - [2020] NZHC 92

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2019-419-326

[2020] NZHC 92

IN THE MATTER of the Trustee Act 1956

BETWEEN

MAPUNA LYNETTE TERESA TURNER

Plaintiff

AND

THE PUBLIC TRUST

Defendant

Hearing: 3 February 2020

Appearances:

M Reason for Plaintiff A Holden for Defendant

Judgment:

7 February 2020

JUDGMENT OF LANG J

[on application for freezing order]

This judgment was delivered by me on 7 February 2020 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

TURNER v THE PUBLIC TRUST [2020] NZHC 92 [7 February 2020]

[1] This proceeding concerns a house property in Te Aroha owned by the estate of the late Dennis Paul Samson. Mr Samson died on 31 May 2012. The Public Trust, the defendant in this proceeding, is the executor of Mr Samson’s last will.

[2] Under the will Mr Samson gave his then partner, Ms Turner, the right to occupy the property for a period of ten years on a rent-free basis. The right was conditional on Ms Turner paying the rates and other outgoings on the property. At the expiration of that period the property was to be transferred to Ms Turner as to an undivided one- half share and the balance to Mr Samson’s three daughters in equal shares.

[3] Ms Turner continued to live in the property following Mr Samson’s death. Some years ago, however, the Public Trust and the other beneficiaries became aware that she had not been paying the rates as they fell due. In December 2016 the Public Trust issued a proceeding seeking an order for possession of the property on the basis that Ms Turner’s right to occupy it under the will had expired. In a judgment delivered on 1 December 2017, Associate Judge Doogue granted the application over Ms Turner’s opposition and entered summary judgment in favour of the Public Trust.1 The bailiff subsequently executed the order in May 2019 and Ms Turner ceased living in the property at that point.

[4] The Public Trust now proposes to sell the property and to distribute the sale proceeds in accordance with the provisions contained in Mr Samson’s will. Ms Turner’s one-half share of the net proceeds will be paid to the Official Assignee because she was adjudicated bankrupt in July 2018.

[5] Ms Turner does not want the Public Trust to sell the property. She wishes to continue living in it even though the rates arrears currently amount to approximately
$16,000 and she has no apparent means of paying that sum. In this proceeding Ms Turner asks the Court to make an order preventing the Public Trust from selling the property pending disposition of an appeal that she proposes to lodge with the Court of Appeal against the Associate Judge’s decision. The length of time that has passed since the Associate Judge delivered his decision means that Ms Turner will need to

1 Public Trust v Turner [2017] NZHC 2979.

persuade…

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 Turner v Public Trust

Details

AGLC: Turner v Public Trust [2020] NZHC 92
Case: [2020] NZHC 92
Decision Date: 7 February 2020

CaseChat Overview and Summary

The plaintiff, Ms Turner, sought an order preventing the defendant, the Public Trust, from selling property in Te Aroha owned by the estate of the late Dennis Paul Samson. Mr Samson’s will gave Ms Turner the right to occupy the property for a period of ten years rent-free, conditional on her paying rates and other outgoings on the property. Ms Turner continued to live in the property following Mr Samson’s death, but she did not pay the rates and other outgoings as they fell due. The Public Trust issued a proceeding seeking an order for possession of the property on the basis that Ms Turner’s right to occupy it had expired. The application was successful, and the bailiff executed the order in May 2019. Ms Turner does not want the Public Trust to sell the property, and she asks the Court to make an order preventing the Public Trust from selling the property pending disposition of an appeal that she proposes to lodge with the Court of Appeal against the Associate Judge’s decision. The Court was required to decide whether it had the jurisdiction to hear and determine Ms Turner’s application and, if so, whether it should grant an interim injunction preventing the Public Trust from taking steps to sell the property until such time as her appeal has been determined.

The Court held that Ms Turner’s interest in the property as one of the beneficiaries under Mr Samson’s will vested in the Official Assignee on her adjudication. It considered, however, that her right to occupy the property under the will was personal to her and did not pass to the Official Assignee on her adjudication. The Court accepted that it could not now say that Ms Turner had a good arguable case in relation to the issue to be determined in any appeal to the Court of Appeal given the conclusions that the Associate Judge reached. It considered that the issue to be determined in any appeal to the Court of Appeal is the same as that which the Associate Judge decided in favour of the Public Trust. The Court held that it does not have the jurisdiction to grant an interim injunction against the Public Trust in the present proceeding because section 17 of the Crown Proceedings Act 1950 prohibits the Court from granting an injunction against the Crown. The Court held that it would be inappropriate to make any declaration of the terms on which it would have granted an interim injunction if the dispute had been between subjects or where it would be appropriate to guide the parties on how they should conduct their activities pending further order of the Court. The Court also held that the arguments Ms Turner proposes to advance on appeal are not strong.

The originating application was dismissed. The Public Trust is the successful party and is accordingly entitled to an award of costs and disbursements against Ms Turner. Costs would ordinarily be payable on a category 2B basis for a proceeding of this type and complexity. If the parties are unable to reach agreement, the Court will determine costs after receiving concise memoranda from both counsel addressing that issue.

Orders