HANKINS AND DVM TRUSTEE LIMITED AS TRUSTEES OF THE D V MCLACHLAN FAMILY TRUST NO. 2 V R&EM JAMIESON-BELL HC WANG CIV 2008-483-2 [2008] NZHC 127 (15 February 2008)

IN THE HIGH COURT OF NEW ZEALAND
WANGANUI REGISTRY
                                                                          CIV
2008-483-2



               BETWEEN                      PETER MURRAY HANKINS AND DVM
                                         
  TRUSTEE LIMITED AS TRUSTEES OF
                                            THE D V MCLACHLAN FAMILY
                          
                 TRUST NO. 2
                                            Plaintiffs

               AND                         
RONALD JAMIESON-BELL AND
                                            ELIZABETH MARY JAMIESON-BELL
                              
             Defendants


Hearing:       13 February 2008

Appearances: J. Reardon - Plaintiffs
             G.H. Takarangi - Defendants

Judgment:      15 February 2008 at 3.00 pm



              JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL



  This judgment was delivered
by Associate Judge Gendall on 15 February 2008 at
            3.00 p.m. pursuant to r 540(4) of the High Court Rules 1985.




Solicitors:
   Cooper Rapley, PO Box 1945, Palmerston North
               Graham Takarangi & Co, Barristers & Solicitors, PO Box 72, Wanganui




HANKINS AND DVM TRUSTEE LIMITED AS TRUSTEES OF THE D V MCLACHLAN FAMILY TRUST
NO. 2 V R&EM JAMIESON-BELL HC WANG CIV 2008-483-2
15 February 2008

Introduction

[1]    On 21 December 2007 the plaintiffs applied for an order for summary
judgment under Rules
134A to 134G High Court Rules to recover possession of
certain farm land from the defendants.


[2]    On 7 February 2008 the defendants
filed a notice of opposition to this
application.


Factual Background


[3]    The plaintiffs are trustees of the D V McLachlan
Family Trust No. 2 ("the
Trust") a trust formed under a Trust Deed dated 31 March 1993.


[4]    The trustees are registered as proprietors
of certain farmland near Wanganui
which I understand is represented by certificates of title 551/33, 551/34, 537/194,
537/195, 630/31
and B4/1474 (Wellington Registry) ("the Trust land").


[5]    The defendants are farmers and registered proprietors of neighbouring
land to
the Trust land. The Trust land is bisected by a long strip of land described as a right
of way owned by the defendants. The
Trust land to the north of the right of way
(which I understand comprises approximately 70.2 hectares) is not in issue here.
The
Trust land to the south of the right of way (which I understand comprises
approximately 125.3 hectares) is the land which is the
subject of this proceeding. At
present according to counsel for the plaintiffs, it seems that the Trust land south of
the right of
way comprises certificates of title 551/33, 551/34, 537/194, and
B4/1474.


[6]    In this judgment I will refer to this land to
the south of the right of way
owned by the Trust as "the South Land".


[7]    Previously it seems that the plaintiffs as trustees
of the Trust leased the South
Land as a single unit to a Mr Nevill. This lease had run apparently for many years.

The lease was
due to expire in March 2007 but it ran on for a time after that date
with Mr. Neill continuing to farm the South Land with his livestock.


[8]    Shortly before August 2007, however, it seems that Mr Nevill informed the
plaintiffs that difficulties had arisen with his
lease and with the defendants as
neighbours affecting his farming of the South Land. Apparently, he complained that
amongst other
things, locks had been removed from gates, livestock removed and
acess to certain areas, to which he said he always had access, was
denied by the
defendants. As a result, Mr Nevill indicated that as he was unable to carry out his
stock work on the leased South
Land, and to obtain vehicle access or access to stock
yards, he had no alternative but to terminate the lease arrangement which he
did
from about 20 August 2007.


[9]    In addition, around 17 August 2007, according to the plaintiffs, it appeared
that 800 hoggets
owned by the defendants were grazing on the South Land. Mr.
Nevill shifted these sheep to the defendants' stock yards and apparently a
confrontation with Mr. Jamieson-Bell
ensued.


[10]   A day or two later when Mr. Nevill terminated his lease, he then removed all
his stock from the South Land. Without
reference to the plaintiffs the defendants
then moved their stock onto the South Land and took over farming of it. There is no
dispute
from the defendants that from that point on they occupied all of the South
Land rent free and were farming it with their own stock.


[11]   The plaintiffs' position is that neither of the defendants have ever been a
tenant or a sub-tenant of the plaintiffs in
respect of the South Land nor have they
ever been persons holding over after the termination of a tenancy or a sub-tenancy.
The plaintiffs
say that the defendants entered onto the South Land without the
plaintiffs' licence or consent or that of any predecessor in title
of the plaintiffs or that
of the former tenant, Mr Nevill, and they have no right or authority to be there.


[12]   It is not disputed
first that the defendants have continued to occupy the South
Land for what is now some six months after August 2007 and secondly
that at no

time have they paid rent or any other monies to the plaintiff for the use of this land.
The plaintiffs' claim that the
defendants are therefore trespassers.


[13]      A further twist in this matter arises, however. This relates to the Trust.


[14]
     The Trust was established on 31 March 1993 principally by Helen Mary
McLachlan ("Mrs McLachlan Senior") as one of the settlors.
It was formed as a
family trust for the ultimate benefit of her 2 daughters who are named as "Primary
Beneficiaries" in the Trust
Deed. These daughters are Sally Ann McLachlan ("Ms
McLachlan") and Elizabeth Mary Jamieson-Bell ("Ms Jamieson-Bell") the second
named
defendant.


[15]      The Trust provided for a date of distribution which was stated as the date of
death of Mrs McLachlan Senior.
As Mrs. McLachlan Senior died on 17 October
2003, the date of distribution is that date.


[16]      Paragraph 9.1 of the Trust Deed
deals with final distribution of the Trust and
states:


          "9.1   From and after the Date of Distribution the Trustees stand
possessed
                 of the Trust Fund or the balance remaining in their hands plus
                 income, upon trust to
distribute to such of the Primary Beneficiaries
                 who are living at the Date of Distribution (and if more than one
as
                 tenants in common in equal shares) ..."


[17]      There is no argument that at 17 October 2003 when their mother
died the
primary beneficiaries were Ms McLachlan and Ms Jamieson-Bell. In accordance
with para. 9.1 of the Trust Deed they are to
take the trust fund in equal shares.


[18]      To date, there has been no final distribution made from the Trust. It is
common
ground between the parties that difficulties over disposition of the Trust's
farm property, and the presence of the right of way
owned by the defendants
bisecting the farm in favour of the defendants' neighbouring land, have caused
considerable difficulties
between the parties. Apparently, there have been many

proposals and counter proposals between the parties to resolve these issues
and much
correspondence has passed between their legal advisors. Despite this, the plaintiffs'
position is that no satisfactory solution
has been reached regarding an even-handed
and final distribution of the Trust assets which will properly and fairly benefit both
Ms McLachlan and Ms. Jamieson-Bell as beneficiaries.


[19]   The essential position advanced by the defendants in response, however,
is
that Ms Jamieson-Bell, as a beneficiary in the Trust, has some kind of beneficial
interest in the South Land given that the date
of distribution under the Trust has
passed, and that therefore she and her husband are not trespassers and have a right to
remain
on the South Land.


Counsel's Arguments and my Decision


[20]   The present summary judgment application seeks an order for possession of
the South Land and is brought
in reliance upon Rules 134A to Rule 134H High
Court Rules. R.134A states:


       "134A Application of Rules Relating to Summary
Proceeding for Recovery
               of Land


       (1)     Rules 134B to 134H apply to every proceeding in which the plaintiff
               claims the recovery of land that is occupied solely by a person or
               persons (not being a tenant or tenants
or subtenant or subtenants
               holding over after the termination of a tenancy or subtenancy) who
               entered
into or remained in occupation without the plaintiff's licence
               or consent or that of any predecessor in title of the
plaintiff.


       (2)     Nothing in this rule or in rules 134B to 134H limits the application, in
               relation to any
proceeding for the recovery of land, of rules 136 to
               144.


[21]   I note at the outset that, as an Associate Judge,
it is clear under Rule 134G
that I have jurisdiction to consider a summary judgment application of this type.

[22]     In addition
to the application itself, Rule 134C goes on to require the
plaintiffs to file an affidavit stating their interest in the land and
the circumstances in
which the land has been occupied without consent. As to this the plaintiffs have
filed an affidavit of Peter
Murray Hankins dated 19 December 2007 which they
contend meets these requirements.


[23]     From Rule 134A it is clear that to
succeed here the plaintiffs are required to
establish that:


         a)       The plaintiffs' land is occupied solely by the defendants.


         b)       The defendants are not tenants or sub-tenants.


         c)       The defendants are not holding over after
the termination of a tenancy
                  or sub-tenancy.


         d)       The defendants entered into or remained in occupation
without the
                  plaintiff's licence or consent or that of any predecessor in title.


[24]     As I have noted above,
it is common ground that the defendants are
occupying the South Land and this land is owned by the plaintiffs as trustees of the
Trust. This is not disputed in the Notice of Opposition filed by the defendants, nor
was it disputed by Mr Takarangi, counsel for
the defendants, before me.


[25]     It is also common ground that the defendants have no lease or tenancy
arrangement in respect
of the South Land nor are they holding over after termination
after any such tenancy or sub-tenancy.


[26]     Further, there appears
to be no question here that the defendants entered into
and have remained in occupation of the South Land without the plaintiffs'
licence or
consent or that of Mr Nevill as a previous lessee or any other predecessor in title.


[27]     There is also no dispute
on the part of the defendants that on a number of
occasions they have been asked by the plaintiffs to vacate but they have refused
to
do so.

[28]   Instead, the defendants' Notice of Opposition to the present application raises
five points. Four of those points,
however, appear to relate to the simple proposition
that the plaintiff trustees are alleged to be in breach of their obligations
under the
Trust Deed for failure to distribute the trust assets. Before me Mr Takarangi for the
defendants endeavoured to argue that
the defendant, Ms Jamieson-Bell as a
beneficiary of the trust has a beneficial interest in the South Land given that the date
of
distribution has passed and she is a Primary Beneficiary under the Trust.


[29]   On this, however, in my view Mr Takarangi in his
submissions misses the
point somewhat. As I see it, Ms Jamieson-Bell may be said to have a general
beneficial interest in the trust
fund of the Trust but she cannot argue that she has a
specific interest in the South Land sufficient to justify the actions she and
her
husband have taken in deciding to occupy this land without the trustees' consent.
The Primary Beneficiaries under the Trust are both Ms Jamieson-Bell and her sister
Ms McLachlan.      As beneficiaries Ms Jamieson-Bell and Ms McLachlan together
have an interest under the Trust in the "Trust Fund"
­ clause 9.1 of the Trust Deed -
and not the South Land. The "Trust Fund" is defined in clause 2.2 of the Trust Deed
as "all ......money
and property" owned by the Trust.


[30]   The Trust Deed does not give Ms Jamieson-Bell the right or entitlement to
seize particular
parts of the Trust land as her own, nor is it suggested in the
defendant's Notice of Opposition to this application that she has
this power. In
addition, no property of the Trust has been appropriated under s.15(1)(j) Trustee Act
1956 or appointed to either
Ms. Jamieson-Bell or Ms. McLachlan by the plaintiff
Trustees. And there is no evidence before the Court that Ms McLachlan has in
any
way consented or agreed to the occupation of the South Land by the defendants.


[31]   What is clear is that the defendants
in addition to occupying the South Land,
also have possession on an agreed basis (rent free) of the Trust farm land to the north
of the right of way. The defendants' decision to take possession of and occupy the
South Land appears to be one taken unilaterally
and certainly without the plaintiff
trustees' consent. In explanation, Ms Jamieson-Bell in her affidavit dated 7 February
2008 at
para. [17] deposes:

       "I have had an active roll on the property (the South Land) for all but five
       years of my life
and my husband and I have been farming our freehold
       adjoining the Trust lands for 25 years. As the third generation on this
       property and applying through the correct channels for a lease and being
       unsuccessful and seeing how the property was
being treated I was compelled
       to take action. ......".


[32]   In my view these comments provide some explanation for the
approach taken
by the defendants here and some insight into why, when their request for a lease of
the South Land was apparently
rejected, their unilateral decision to move onto the
South Land was taken.


[33]   In my view the situation in the present case
is not dissimilar in some ways to
that which prevailed in McLaughlin v McGarry  (2000) 15 PRNZ 178.                      In
McLaughlin the Court granted summary judgment in respect of a licence which had
been terminated, even though
the defendant claimed that the matter was part of a
wider dispute and needed to be resolved in context.


[34]   In the present case,
as I have noted, it is undisputed first, that the South Land
is owned by the plaintiffs as registered proprietors in their capacity
as trustees of the
Trust, and secondly that the assets of the Trust, for whatever reason, remain
undistributed at the present time.
That said, the defendant, Ms Jamieson-Bell cannot
in my view sustain an argument that she is beneficially entitled to the South Land
sufficient to allow she and her husband to occupy this land without the registered
proprietor's consent, a consent which clearly
had not been given.


[35]   And McGechan on Procedure at para. HR134A.03 makes clear that the
present summary judgment procedure
does not apply where some occupiers are
lawful and others are wrongful occupiers as every person in occupation must satisfy
the qualifications
of Rule 134A(1).       In the present case, however, neither Mr
Jamieson-Bell nor Ms Jamieson-Bell as defendants have been able to
satisfy me that
they are lawful occupiers of the South Land.

[36]     That said I am satisfied that the plaintiff trustees as sole
registered proprietors
of this land are entitled to judgment for possession as sought in the prayer for relief
noted as prayer (a)
of the plaintiffs' statement of claim.


[37]     By way of an aside, I note that what seems to me to be the real complaint of
the
defendants here and Ms Jamieson-Bell in particular, relates to their claim that the
plaintiffs have breached various obligations
they have as Trustees first to ensure trust
farm lands are properly farmed and maintained and secondly to ensure that a final
distribution
of those Trust assets occurs promptly when due. These allegations,
however, clearly relate to breach of trust arguments. Although
I express no view on
the propriety of these allegations, I note that Ms Jamieson-Bell may have other
remedies open to her if she
considers actionable breaches of trust have occurred. But
they are quite separate from the application before me and I have no jurisdiction
to
deal with those complaints as part of the present proceeding.


[38]     One final matter needs mention. At the hearing of this
matter an issue arose
as to the date of any judgment for possession, given the need for the defendants to
remove livestock from the
land and general animal welfare issues. I granted leave
for memoranda to be filed on this issue. Counsel for the plaintiffs has now
filed a
memorandum dated 13 February 2008 suggesting a period of 1 month for the
defendants to vacate the land. No memorandum has
been filed by Mr Takarangi for
the plaintiffs, although at the hearing of this matter he suggested a period of about 4
weeks would
be appropriate. I accept that 4 weeks is appropriate here.


Result


[39]     Summary judgment is now granted to the plaintiffs
for possession of the
Trust's South Land being certificates of title 551/33, 551/34, 537/194 and B4/1474
(Wellington Registry) from
2.00 pm on Friday, 14 March 2008. There will be an
order that the defendants quit this land and yield vacant possession of it to
the
plaintiffs by 2.00 pm on Friday, 14 March 2008.


[40]     So far as the prayer for relief noted as prayer (b) of the plaintiffs'
statement
of claim which seeks "Damages for lost rent for the period of unlawful possession"

is concerned, it is clear that the
period in question will not be known until the
defendants actually vacate the South Land and enable the plaintiffs to deal with the
land or re-lease it.


[41]    At counsel's request, the present summary judgment application in relation to
this prayer (b) aspect
is therefore adjourned and the following directions made:


        a)      The plaintiff has a period of 60 working days from the
date of this
                judgment to file and serve an affidavit setting out a calculation of the
                damages for lost rent claimed in prayer (b)
once the period of
                unlawful possession is known.


        b)      The defendants will then have a period of a further
20 working days to
                file and serve any affidavit in reply.


        c)      The Registrar is directed then to liase
with counsel for both parties to
                set down for hearing before me the summary judgment application
               
relating to this damages claim.


Costs


[42]    The plaintiffs have been successful in this application and I see no reason
why
costs should not follow the event in the normal way. Costs are awarded to the
plaintiffs on this application on a Category 2B basis
together with disbursements as
fixed by the Registrar.




                                                         `Associate Judge
D.I. Gendall'