Wakefield v Wakefield - [2021] NZHC 1664

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000877

[2021] NZHC 1664

UNDER Part 12 of the High Court Rules

IN THE MATTER

of a summary judgment application for possession and ancillary orders

BETWEEN

LARRY LIONEL WAKEFIELD as executor of the Estate of Helena Wakefield

Plaintiff

AND

HELENA PAULEEN WAKEFIELD

Defendant

Hearing: 6 July 2021

Appearances:

P Kim for Plaintiff

No appearance by or on behalf of the Defendant

Judgment:

6 July 2021

JUDGMENT OF WOOLFORD J

Solicitors/counsel:
Glaister Ennor, Auckland

WAKEFIELD v WAKEFIELD [2021] NZHC 1664 [6 July 2021]

Introduction

[1] The plaintiff, a retired geologist living in Victoria, Australia, has filed proceedings and is seeking summary judgment against the defendant, his sister, as sole executor of their mother’s estate. Orders are sought for possession of a property at 3/8 Dempsey Street, Remuera, in which the defendant lives, damages for unlawful occupation of the property and the payment of funds held by the defendant as bare trustee for their late mother.

Factual background

[2] Helena Wakefield is the late mother of the plaintiff and the defendant. Mrs Wakefield’s will dated, 22 December 2008, bequeathed all her property and estate to the plaintiff and defendant equally and appointed them as co-executors.

[3] The property at 3/8 Dempsey Street, Remuera, is owned by Mrs Wakefield and was occupied by her at the time of her death. The defendant has lived there with their mother since about 31 December 2011. Mrs Wakefield died on 21 May 2019. The defendant now lives there alone. The estate comprises the property at 3/8 Dempsey Street, Remuera, bank balances and personal chattels. After Mrs Wakefield’s death the defendant neglected and/or refused to cooperate with the plaintiff in obtaining probate of Mrs Wakefield’s will as co-executor. As a consequence, the plaintiff sought orders under s 19(1) of the Administration Act 1969 granting probate to the plaintiff alone.

[4] On 17 February 2021, Powell J made orders granting probate of the estate of Mrs Wakefield to the plaintiff as sole executor. He also ordered the defendant to pay indemnity costs to the plaintiff totalling $21,842.55 to be paid from the defendant’s share of the estate as the plaintiff had been unnecessarily put to the time and expense of pursuing that application.

[5] On 26 March 2021, the plaintiff’s solicitors wrote to the defendant (and her former solicitors):

(a)giving notice to vacate the property by 18 June 2021 (12 calendar weeks);

(b)urging cooperation to avoid further proceedings and costs;

(c)advising that adjustments to the defendant’s bequest for continued occupation of the property would need to be addressed;

(d)advising that if possession was not provided, summary judgment proceedings for possession and costs would be required;

(e)offering $600 per week (up to a maximum of six months) for alternate accommodation to be offset from the defendant’s share of Mrs Wakefield’s estate; and

(f)requiring bank statements relating to funds held by the defendant on trust for the estate of Mrs Wakefield.

[6]…

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 Wakefield v Wakefield

Details

AGLC: Wakefield v Wakefield [2021] NZHC 1664
Case: [2021] NZHC 1664
Decision Date: 6 July 2021

CaseChat Overview and Summary

The case of Wakefield v Wakefield involves a dispute between the plaintiff, Larry Lionel Wakefield, as the executor of his late mother's estate, and the defendant, Helena Pauleen Wakefield, the plaintiff's sister. The plaintiff seeks summary judgment for possession of a property at 3/8 Dempsey Street, Remuera, damages for unlawful occupation of the property, and the payment of funds held by the defendant as bare trustee for their late mother. The defendant has failed to appear or respond to the proceedings, leading the plaintiff to apply for summary judgment. The court must decide whether the plaintiff has a valid claim for possession of the property and damages for unlawful occupation, as well as whether the defendant has any arguable defence to these claims.

The court first examines the legal issues involved in the case. The plaintiff, as the sole executor of their late mother's estate, has the right to possession of the property. The defendant, as the unlawful occupier of the property, has no arguable defence to this claim. The court must also determine whether the defendant's continued occupation of the property constitutes unlawful occupation for which damages (mesne profits) are payable. The court finds that the defendant is an unlawful occupier of the property and that the loss suffered or the value of occupying that property to the defendant is the estimated market rental value of the property being $575 per week. The plaintiff seeks mesne profits at a rate of $575 per week from 26 March 2021 until possession of the property is granted to the plaintiff.

The court finds that the defendant has no reasonably arguable defence to the orders sought in the summary judgment application. The defendant has had sufficient opportunity to arrange her affairs and to move out of the property, but refuses to do so. The court grants the plaintiff's application for summary judgment and orders that the defendant vacate the property forthwith, pay damages for unlawful occupation at a rate of $575 per week from 26 March 2021 until possession of the property is granted to the plaintiff, and pay costs on a 2B basis and disbursements in the sum of $12,054. The plaintiff's other claims for payment of funds held on trust for Mrs Wakefield and delivery of bank statements are not pursued as the plaintiff has waived such entitlement in a pragmatic decision to avoid costs and conflict.

Orders