Lunn v Lee [2023] NZHC 110 (7 February 2023)

Last Updated: 10 May 2023

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2022-441-050 [2023] NZHC 110

UNDER	Part 13 of the High Court Rules
IN THE MATTER OF	recovery of land from an unlawful occupier
BETWEEN	STEPHEN PETER LUNN Plaintiff
AND	CATHERINE JILLIAN LEE Defendant

Hearing:	7 February 2023
Counsel:	D J O’Connor for Plaintiff
Oral Judgment:	7 February 2023

ORAL JUDGMENT OF CHURCHMAN J

Introduction

[1] The plaintiff, a solicitor appointed by the Court to be the trustee in the estate of the late Barbara Jean Lee (Barbara)¹ has commenced proceedings seeking an order for vacant possession of a property situated at 109A Townsend Street, Hastings (the Property). As the sole executor of the estate of Barbara, the plaintiff is the registered proprietor of the Property.

[2] In her Will, Barbara directed that the Property be sold shortly after her death.

[3] The plaintiff requires vacant possession in order to carry out his duties as executor.

¹ Re an application by Lister [2022] NZHC 1268.

LUNN v LEE [2023] NZHC 110 [7 February 2023]

Factual background

[4] Barbara had resided in the Property for many years prior to her death on 28 July 2021. The defendant, Catherine Jillian Lee (Catherine) is Barbara’s daughter. She moved into the Property shortly before Barbara passed away. She has refused to leave and continues to occupy the Property, along with some associates. She contributes nothing to the outgoings on the Property. There have been issues about the behaviour of Catherine and her fellow occupants of the Property which have led to Police involvement and arrests. There have also been complaints from neighbours and issues around what is said to be the consumption of methamphetamine. A patched gang member is said to be living at the Property.

[5] Catherine has behaved in an argumentative and aggressive manner and it was necessary for the two trustees named in Barbara’s Will to be replaced as a result of threats and abuse directed to them by Catherine.

[6] Barbara’s Will made two bequests:

(a) $50,000 to Catherine provided she survived Barbara; and

(b) $20,000 to Catherine’s daughter if she survived Barbara and attained the age of 25 years.

[7] Barbara bequeathed her personal items, including her jewellery, to Catherine.

[8] All other property in the estate was to be held by the trustees upon Trust to pay the net annual income from the estate to Catherine during Catherine’s lifetime and, on the death of Catherine, to pay the capital of the residuary estate to Catherine’s daughter provided Catherine’s daughter survived Barbara and attained the age of 25 years.

[9] The Property is by far the largest asset in the estate. It has an approximate value of $583,000. The estate had an ANZ term deposit investment of some $60,000 as at the date of death. That has been reduced by funeral expenses. The estate also had a cheque account which apparently now only has a balance of $4,000 remaining. It is said to have been reduced by withdrawals made by Catherine. Between 4 and

10 August 2021 (after the date of Barbara’s death), Catherine apparently made electronic payments from her bank account in the sum of $7,900. There were also Eftpos payments made.

[10] Barbara also had a motor vehicle with an approximate value of $10,000 which was at the Property at the date of her death. It appears that Catherine has converted the vehicle to her own use. Its present whereabouts are unknown.

[11] Catherine has at times demanded, and received from the plaintiff, sums of money on account of her $50,000 bequest. However, as a result of her refusal to move out of the Property when requested, subsequent demands by Catherine for further payments have been refused. Catherine has become angry and abusive as a result.

[12] Although Catherine has at times consulted two different solicitors, neither was prepared to act for her. She is currently unrepresented.

Legal issues

[13] Applications of this nature are governed by Part 13 of the High Court Rules 2016 (HCR). In accordance with Part 13, a statement of claim and affidavits in support have been filed by the plaintiff. No statement of defence has been filed and the time for doing so has long since passed.

[14] An interlocutory application without notice for an order for vacant possession of the Property was filed on 4 October 2022. That application was allocated the hearing date of 7 February 2023. On 1 December 2022, Catherine was served with a letter advising her of the hearing date. She did not appear at the hearing.

[15] The plaintiff’s case is that Catherine is an unlawful occupier of the Property. HCR 13.1 defines an unlawful occupier as a person who:

(a) occupies or continues to occupy land of the plaintiff without the licence or consent of the plaintiff or the plaintiff’s predecessor in title; and

(b) is not a tenant or subtenant holding over after the termination of a tenancy or subtenancy.

[16] The plaintiff has established that Catherine occupies and continues to occupy the Property without his licence or consent, or the licence or consent of any predecessor in title. Catherine is also not a tenant or subtenant holding over after the termination of a tenancy or subtenancy. She is therefore an unlawful occupier.

[17] Cases of relatives of a deceased person moving into the deceased’s house and refusing to leave are not uncommon. A recent example is Kirkwood v Kirkwood. The Court in that case said:²

There is no dispute as to 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.

[18] Similar outcomes were reached in the case of Steinbauer v Steinbauer and

Wakefield and Wakefield.³

Analysis

[19] Catherine was given formal notice to vacate the Property by letters dated 22 October 2021 and 22 February 2022. I am satisfied that the plaintiff has given Catherine a reasonable opportunity to vacate the Property but that Catherine has failed or refused to do that and has thereby become an unlawful occupier.

[20] The plaintiff is unable to complete his duties as executor without selling the Property. He is unable to sell the Property without vacant possession.

[21] In circumstances where no statement of defence was filed to the substantive proceedings, I am satisfied that it was appropriate for the plaintiff to file a without notice motion for an order for vacant possession.

[22] The plaintiff has made out an entitlement to the orders sought which are granted accordingly.

² Kirkwood v Kirkwood [2022] NZHC 3108, at [12].

³ Steinbauer v Steinbauer [2022] NZHC 911 and Wakefield v Wakefield [2021] NZHC 1664.

Outcome

[23] I order as follows:

Vacant possession of the property located at 109A Townsend Street, Hastings, legally described as an estate in fee simple being a 2/3rds share of Lot 1 Deposited Plan 22353 and an estate in leasehold being Flat 2 Deposited Plan 348866 (Memorandum of Lease No. 6455728.2), Record of Title Identifier 200620 (Hawkes Bay Registration District), such vacant possession to be delivered by 5pm on the 10^th working day after service on the defendant of an order, sealed by the Court, directing that vacant possession be delivered to the plaintiff.

Costs

[24] The plaintiff is entitled to costs on this application on a 2B basis, such costs payable by the estate.

Churchman J

Solicitors:

Heaphy & Co, Hastings for Plaintiff