KIRKWOOD v KIRKWOOD [2020] NZHC 3108

KIRKWOOD v KIRKWOOD [2020] NZHC 3108

The executor, as the registered proprietor following transmission, is entitled to an order for possession because formal demand was made and the defendant has not established any real defence to defeat a summary judgment application; the court will exercise its discretion to permit a limited delay to enable a final...

Source-derived case information.

Citation
(2020) 21 NZCPR 650
Parties
Plaintiff / Executor: Craig Robert Kirkwood; Defendant / Occupier / Beneficiary: Paula Margaret Kirkwood; Deceased (testatrix): Joan Robertson Kirkwood
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 November 2020
Procedural Posture
Estate Administration / Possession of Land / Summary Judgment Application (oral Judgment)
Outcome
Order for possession granted in favour of the plaintiff; order to lie in court until 12 February 2021; costs awarded to plaintiff on a 2B basis; mesne profits claim adjourned for case management after 12 February 2021.
Legal Topics
Possession, Executor Rights, Summary Judgment, Unlawful Occupier, Mesne Profits
Property Law Estate Law Civil Procedure Possession Executor Rights Summary Judgment Unlawful Occupier Mesne Profits

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Parties

Craig Robert Kirkwood

Plaintiff / Executor

Paula Margaret Kirkwood

Defendant / Occupier / Beneficiary

Joan Robertson Kirkwood

Deceased (testatrix)

Procedural Posture

Estate Administration / Possession of Land / Summary Judgment Application (oral Judgment)

Legal Issues

  1. 1 Whether the executor as registered proprietor is entitled to an order for possession against an occupier without consent
  2. 2 Whether the defendant has a real defence to defeat a summary judgment application
  3. 3 Whether the court should exercise its residual discretion to refuse summary judgment or defer enforcement to allow family resolution

Ratio Decidendi

The executor, as the registered proprietor following transmission, is entitled to an order for possession because formal demand was made and the defendant has not established any real defence to defeat a summary judgment application; the court will exercise its discretion to permit a limited delay to enable a final opportunity for family resolution but will grant possession subject to a fixed vacate date.

Court Disposition

Order for possession granted in favour of the plaintiff; order to lie in court until 12 February 2021; costs awarded to plaintiff on a 2B basis; mesne profits claim adjourned for case management after 12 February 2021.

Orders

  • Order for possession in favour of Craig Robert Kirkwood (plaintiff/executor)
  • Possession order to lie in court until Friday, 12 February 2021