Watene v Cook HC Hamilton CIV 2010-419-222

[2010] NZHC 1237

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2010-419-000222

UNDER  Part 13 of the High Court Rules

IN THE MATTER OF     of Summary Proceedings for the recovery of land and chattels

BETWEEN  BETTY DOREEN WATENE Plaintiff

ANDJUSTINE MICHELLE COOK AND SARAH DUBARRY COOK Defendants

Hearing:         21 July 2010

Counsel:         DJ Rooke for plaintiff

CA Blucher for defendants

Judgment:      21 July 2010 at 11:30am

(ORAL) JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application for summary judgment]

Solicitors:           David Rooke Law Office, PO Box 64 342, Manukau for plaintiff

Insight Legal, PO Box 333, Warkworth for defendants

WATENE V COOK & ANOR  HC HAM CIV 2010-419-000222  21 July 2010

[1]      The plaintiff applies for summary judgment. [2]         She seeks in her first cause of action:

a)       An  order   directing  that  the  plaintiff   is   entitled   to   immediate possession of the property at 64 Harris Street, Huntly;

b)        An order directing the defendants to vacate the property forthwith;

c)        Damages calculated in the amount of $385 per week from 8 May

2009 to the date of judgment and thereafter until the defendants have vacated the property; and

d)       Costs.

[3]      She seeks in her second cause of action:

a)       An  order   directing  that  the  plaintiff   is   entitled   to   immediate possession  of  the  chattels  which  were  at  the  property  when  the plaintiff left it on or about 5 May 2008;

b)An order directing the defendants to release the chattels to the plaintiff forthwith;

c)       Alternative to (b) an inquiry into damages due to the plaintiff in the event that recovery of the chattels cannot be had;

d)An  inquiry  into  damages  due  to  the  plaintiff  for  the  loss  by  the plaintiff of the use and possession of the chattels from 5 May 2009; and

e)        Costs.

[4]      The plaintiff is the registered proprietor of a residential property at 64 Harris

Street, Huntly.

[5]      The defendants are the children of the plaintiff’s late husband, Barry Adam

Watene.  He died on 8 April 2008.

[6]      The defendants’ mother was the late Rauina Cook.  She died in 1989.

[7]      This proceeding involves unfortunate clashes between the two families of the late Barry Adam Watene.

[8]      The  plaintiff  and  Mr Watene  commenced  living  together  in  a  de  facto relationship in 1955.   They married in 1961.   They lived apart from time to time from 1980 until Mr Watene’s death.  The plaintiff says that that occurred when she learned that her husband had formed a relationship with another woman, Mrs Rauina Cook.

[9]      The plaintiff and Mr Watene had five children of their marriage.  Mr Watene and Rauina Cook had three children.  Two of those children are the defendants.  A third, is a son who is now deceased.

[10]     The residential house property which is the subject of the first cause of action at 64 Harris Street, Huntly was purchased in 2003.  It was registered in the sole name of the plaintiff.

[11]     Mr Watene made a will on 3 October 2003.  Under his will the plaintiff was appointed his administrator.  The whole of his estate was left to the plaintiff.  Probate was granted to the plaintiff in the High Court at Hamilton in respect of Mr Watene’s estate on 26 May 2008.  No proceedings have been issued in respect of his estate.

[12]     In  the  defendants’  counsel’s  submissions  filed  on  19 July  2010  counsel records her clients’ instructions, and I quote: “In the absence of any further legal

proceedings being considered to be filed in the family court they (the defendants)

must capitulate and relinquish possession of the property.”

[13]     The plaintiff served a  document on the defendants on 30 May 2008  and which she says was a  trespass notice.   The defendants  acknowledged  that they received the document but claimed they did not believe it was genuine.

[14]     The above is but a short summary of events which took place between the plaintiff and defendants.  This judgment and the issues raised in this proceeding will not explore and determine events which might well have been the subject of proceedings before another court and in respect of another statutory jurisdiction.

The court’s approach to an application for summary judgment by a plaintiff

[15]     Rule 12.2 of the High Court Rules requires that a plaintiff satisfy the court that the defendant has no defence to a cause of action or to a particular part of any such cause of action in the statement of claim.

[16]     The correct approach to an application for summary judgment by a plaintiff was recently summarised by the Court of Appeal in Krukzeiner v Hanover Finance Ltd[1] where the court said:

[1] Krukziener v Hanover Finance Ltd [2008] NZCA 187 at 26.

The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1 at 3 (CA). The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11

PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331 at 341 (PC). In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).

The order sought for possession of 64 Harris Street

[17]     The position adopted by the defendants, belatedly as it is, is appropriate. [18]          The plaintiff is the registered proprietor of 64 Harris Street.

[19]     By virtue of the fact that she is the administrator of her late husband’s estate, at this time the defendants do not appear to have any basis to challenge her legal and beneficial ownership of that property.  The position might well be different if another administrator was appointed in respect of the defendants’ father’s estate and a proceeding was taken against the plaintiff by that administrator on behalf of the estate.  None of that is likely I am advised by the defendants’ counsel, because of the time that has passed since the appointment of the plaintiff as administrator.

[20]     The Land Transfer Act 1952, s 62 makes the plaintiff’s title to 64 Harris Street paramount.  Section 63 protects the plaintiff against ejectment except in those special cases which are referred to in that section.  None of those special cases apply in this case.

[21]     The plaintiff has demanded possession.  The demands have included the issue of a trespass notice.

[22]     The plaintiff is entitled to possession of the property.  I am satisfied that the defendants have no defence to the plaintiff’s application for possession.

The balance of the relief sought

[23]     The claim for damages for possession is based on a letter from a real estate agent dated 10 October 2004.  There is conflicting evidence on the question of who has paid the outgoings.  Discovery would assist in the determination of that issue: Tilialo v Contractors Bonding Limited.[2]    I am not satisfied that the plaintiff has satisfied me that this is an appropriate case to enter summary judgment.  This issue is

[2] Tilialo v Contractors Bonding Limited CA 50-93, 15 April 1994 (CA).

one that should be determined by trial and after access to appropriate interlocutory orders.

[24]     The claim for possession of chattels, likewise, is not appropriate for summary judgment.  There are conflicts in the evidence as to what chattels were removed by the plaintiff, or persons acting on her behalf.  Those conflicts of evidence must be determined at trial.

[25]     I adjourned this hearing of the application to enable counsel to discuss the way forward in the event that I concluded that an order for possession of the house was appropriate and that the other matters should proceed to trial.   Counsel have helpfully agreed on the appropriate steps to be taken.  Included in that agreement is an agreement that the parties and counsel will inspect the subject property today.

Orders

[26]     I order as follows:

a)       The plaintiff shall have possession of the property at 64 Harris Street, Huntly;

b)The  defendants  shall  give  possession  of  the  property  at  64 Harris Street, Huntly to the plaintiff no later than 14 August 2010.  For the purposes of r 13.9 of the High Court Rules time in respect of this order shall be counted from 14 August 2010;

c)       The application in respect of the balance of the claim is refused and must proceed to trial in the ordinary way;

d)       An  amended  statement  of  claim  shall  be  filed  and  served  by

23 August 2010 and a statement of defence to the amended statement of claim shall be filed and served by 6 September 2010; and

e)       The parts of this proceeding that require determination are within of the jurisdiction of the district court.   Accordingly, pursuant to the District Courts Act 1947, s 46 I transfer this proceeding to the district court at Hamilton.   The Registrar, at the request of the parties, is asked  to  arrange  a  judicial  settlement  conference  of  a  ½-day’s

duration at the first available to the court after 20 September 2010.

Costs

[27]     Although the plaintiff has been partially successful in this case there are parts where the matters clearly have to proceed to trial.  This seems to me, therefore, to be a case where costs should be reserved in line with the approach adopted in NZI Bank

Ltd v Philpott.[3]

[3] NZI Bank Ltd v Philpott [1990] 2 NZLR 403 (CA).

JA Faire

Associate Judge