LUNN v LEE [2023] NZHC 1275

LUNN v LEE [2023] NZHC 1275

Given the prior judgment, service on the respondent, the condition of the property and the respondent's failure to take steps, the Court exercised its discretion under r 13.9 and r 17.81 to grant a possession order, authorised issuance of a writ of possession, but ordered the writ to lie in Court unexecuted for two...

Source-derived case information.

Citation
[2023] NZHC 1275
Parties
Applicant / Trustee of the Estate of Barbara Jean Lee: Stephen Peter Lunn; Respondent / Occupier: Catherine Jillian Lee
Court
High Court
Jurisdiction
New Zealand
Judgment Date
25 May 2023
Procedural Posture
Recovery of Land (possession Enforcement Under Part 13 High Court Rules) / Application for Possession Order (enforcement)
Outcome
Possession order granted; writ of possession sealed and authorised; writ to lie in Court unexecuted for two weeks from service to allow respondent to vacate; costs and indemnity ordered.
Legal Topics
Possession Order, Enforcement of Judgment, High Court Rules R13.9, High Court Rules R17.81, Costs (2 B Basis)
Property Law Estate Administration Civil Procedure Possession Order Enforcement of Judgment High Court Rules R13.9 High Court Rules R17.81 Costs (2 B Basis)

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Parties

Stephen Peter Lunn

Applicant / Trustee of the Estate of Barbara Jean Lee

Catherine Jillian Lee

Respondent / Occupier

Procedural Posture

Recovery of Land (possession Enforcement Under Part 13 High Court Rules) / Application for Possession Order (enforcement)

Legal Issues

  1. 1 Whether a possession order and writ of possession may be issued under r 13.9 and r 17.81
  2. 2 Whether notice was required for the leave application under r 13.9(2)
  3. 3 Whether execution of the writ should be delayed and on what terms

Ratio Decidendi

Given the prior judgment, service on the respondent, the condition of the property and the respondent's failure to take steps, the Court exercised its discretion under r 13.9 and r 17.81 to grant a possession order, authorised issuance of a writ of possession, but ordered the writ to lie in Court unexecuted for two weeks to permit the respondent an opportunity to vacate; costs and expenses of enforcement to be paid by the respondent on a 2B basis and the applicant to indemnify the Court for costs of taking possession.

Court Disposition

Possession order granted; writ of possession sealed and authorised; writ to lie in Court unexecuted for two weeks from service to allow respondent to vacate; costs and indemnity ordered.

Orders

  • Possession order sealed authorising the Sheriff to take possession for Stephen Peter Lunn of land at 109A Townshend Street, Hastings (estate in fee simple 2/3 share of Lot 1 DP 22353 and leasehold Flat 2 DP 348866, RT 200620), ejecting the liable party Catherine Jillian Lee and her invitees and seizing chattels as...
  • Applicant to indemnify the Court for all costs involved in taking possession of the land and chattels.