WARD v WARD AND JAMES [2020] NZHC 11

WARD v WARD AND JAMES [2020] NZHC 11

Summary judgment was refused because the plaintiff's claims involved disputed facts, serious allegationsof fraud/breach and legal impediments (time bars and possible vesting in the Official Assignee) that made summary resolution inappropriate; the statement of claim was defectively pleaded and required amendment; however the registered proprietors (Allan and Diane) were entitled to possession of the Vardon Road property because any statutory or personal claim against the estate is a monetary remedy and does not create a proprietary right to occupy; accordingly possession was ordered and procedural timetabling and directions were imposed.

Citation
[2020] NZHC 11
Parties
Plaintiff / Defendant (in Related Proceeding): Russell Stuart Ward; First Defendant / Plaintiff (in Related Proceeding): Christopher Allan Ward; Second Defendant / Plaintiff (in Related Proceeding): Diane Lorraine James
Court
High Court
Jurisdiction
New Zealand
Judgment Date
14 January 2020
Procedural Posture
Civil Dispute Concerning Wills, Trusts, Estate Administration and Possession of Land / Applications for Summary Judgment, Strike Out and Security for Costs Heard; Case Management Directions Ordered
Outcome
Plaintiff's summary judgment application dismissed; defendants' strike out application dismissed but plaintiff ordered to file an amended compliant statement of claim; defendants granted order for possession of Vardon Road property; other applications (security for costs, summary judgment for outgoings, production...
Legal Topics
Summary Judgment, Strike Out, Security for Costs, Possession / Recovery of Land, Breach of Trust, Testamentary Challenges, Limitation Periods, Licence Versus Tenancy
Wills and Estates Trusts Property Law Civil Procedure Bankruptcy Summary Judgment Strike Out Security for Costs +5 more

Case Brief

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Parties

Russell Stuart Ward

Plaintiff / Defendant (in Related Proceeding)

Christopher Allan Ward

First Defendant / Plaintiff (in Related Proceeding)

Diane Lorraine James

Second Defendant / Plaintiff (in Related Proceeding)

Procedural Posture

Civil Dispute Concerning Wills, Trusts, Estate Administration and Possession of Land / Applications for Summary Judgment, Strike Out and Security for Costs Heard; Case Management Directions Ordered

Legal Issues

  1. 1 Whether plaintiff's claims against estate and trustees are suitable for summary judgment
  2. 2 Adequacy of pleadings and whether statement of claim discloses reasonably arguable causes of action
  3. 3 Whether claims against the estate are time‑barred or vested in the Official Assignee due to bankruptcy

Ratio Decidendi

Summary judgment was refused because the plaintiff's claims involved disputed facts, serious allegationsof fraud/breach and legal impediments (time bars and possible vesting in the Official Assignee) that made summary resolution inappropriate; the statement of claim was defectively pleaded and required amendment; however the registered proprietors (Allan and Diane) were entitled to possession of the Vardon Road property because any statutory or personal claim against the estate is a monetary remedy and does not create a proprietary right to occupy; accordingly possession was ordered and procedural timetabling and directions were imposed.

Court Disposition

Plaintiff's summary judgment application dismissed; defendants' strike out application dismissed but plaintiff ordered to file an amended compliant statement of claim; defendants granted order for possession of Vardon Road property; other applications (security for costs, summary judgment for outgoings, production...

Orders

  • Summary judgment in CIV-2018-419-374 dismissed (14 January 2020)
  • Strike out application by Allan and Diane in CIV-2018-419-374 dismissed