Wakefield v Wakefield
[2021] NZHC 1664
•6 July 2021
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] On 6 April 2021, the defendant’s former solicitors suggested to the plaintiff’s solicitors that the defendant may wish to contest Mrs Wakefield’s will by way of an application under the Family Protection Act 1955 or otherwise, albeit without instructions from the defendant (the defendant has been provided for by way of half the estate).
[7] On 29 April 2021, the plaintiff’s solicitors again wrote to the defendant giving notice that these proceedings would be filed. The defendant did not respond to the plaintiff’s solicitors’ letters of 26 March 2021 or 6 April 2021 and continues to occupy the property.
[8] On 19 May 2021, the plaintiff filed a statement of claim, notice of proceeding, notice of interlocutory application for summary judgment, affidavit of the plaintiff in support of the summary judgment application and a list of documents relied on. The summary judgment application was served on the defendant on 27 May 2021. The defendant has not filed a notice of opposition and supporting affidavits in accordance
with High Court Rule 12.9 and has not taken any other steps to oppose the summary judgment application.
The plaintiff’s claim against the defendant
Possession of property
[9] In Kirkwood v Kirkwood,1 the Court made an order for possession in favour of the plaintiff (as executor) who had sought possession of a property the defendant had lived in for more than 30 years and was unwilling to move out of. The Court observed the firmly established principle that a registered proprietor is entitled to maintain or recover possession of their land against all other persons:
There is no dispute as to the entitlement of the registered proprietor, including an executor of an estate, to obtain an order for possession of property against someone who is occupying that property, without the consent of the registered proprietor.
[10] In the present case, there is no dispute about the plaintiff’s entitlement to possession of the property. The plaintiff is the sole executor of Mrs Wakefield’s will. The plaintiff has made reasonable attempts to accommodate the defendant and to resolve matters pragmatically by giving the defendant 12 weeks’ notice to vacate, urging cooperation and offering $600 per week (up to a maximum of six months) for the defendant’s alternative accommodation.
[11] The defendant has had sufficient opportunity (since 26 March 2021) to arrange her affairs and to move out of the property, but refuses to do so. Without access to the property, the plaintiff is unable to administer Mrs Wakefield’s estate and carry out his duties as executor. There is no arguable defence to the claim by the plaintiff for possession of the property.
Damages for unlawful occupation
[12]The Laws of New Zealand state:2
… a proceeding for mesne profits is a claim for damages for trespass. The damages may either be for the loss the lessor has suffered through being out
1 Kirkwood v Kirkwood [2020] NZHC 3108.
2 At [164].
of possession of the land or, if no actual damage caused by the defendant’s trespass can be proved, for the value of the premises to the defendant for the period of the defendant’s wrongful occupation … Mesne profits, being a type of damages for trespass, may be recovered in respect of the defendant’s continued occupation only after expiry of the legal right to occupy the premises.
[13] The defendant is an unlawful occupier of the property. 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.
[14] The plaintiff seeks mesne profits at a rate of $575 per week for the defendant’s unlawful occupation of the property since July 2020, being the date by which absent neglect and/or refusal by the defendant, probate of Mrs Wakefield’s will would have been granted to the plaintiff and the defendant jointly until possession of the property is granted to the plaintiff. In the alternative, the plaintiff seeks mesne profits at the rate of $575 per week from 26 March 2021, being the date the plaintiff’s solicitors formally requested the defendant to vacate the property, until possession of the property is granted to the plaintiff.
Funds held on trust for Mrs Wakefield/delivery of bank statements
[15] The notice of interlocutory application seeks funds held by the defendant on trust for Mrs Wakefield to be paid to the plaintiff and the delivery up of bank statements. However, counsel advises the Court that the plaintiff does not seek summary judgment for such orders on the basis that the order for possession of the property and mesne profits are unopposed by the defendant and are granted by the Court and there is no challenge to Mrs Wakefield’s estate by the defendant.
[16] This is said to be a pragmatic decision of the plaintiff to avoid costs and conflict. As the plaintiff in his personal capacity is the only other beneficiary to the estate along with the defendant, he is able to effectively waive such entitlement.
Result
[17] In the circumstances, I am satisfied that the defendant has no reasonably arguable defence to the orders sought in the summary judgment application. Accordingly, there will be judgment against the defendant as follows:
(a)an order for possession of the property at 3/8 Dempsey Street, Remuera, Auckland, forthwith;
(b)damages for unlawful occupation (mesne profits) at a rate of $575 per week from 26 March 2021 until possession of the property is granted to the plaintiff; and
(c)costs on a 2B basis and disbursements in the sum of $12,054.
Woolford J
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