New Zealand Case Law: Decisions & Judgments

Topic

Occupation rent

Legal area

Court

29 Nov 2023

WL v AJ [2023] NZHC 3426

Citation

[2023] NZHC 3426
Court

High Court

Costs were declined because s45 of the Legal Services Act 2011 restricts making costs orders against an aided person unless exceptional circumstances exist; although WL failed some deadlines and pursued a weak constructive trust claim, his conduct did not reach the threshold of being 'out of the ordinary' to satisfy exceptional circumstances, therefore no costs order was made against him; the court recorded that absent s45 it would have ordered costs on a 2B basis adjusted not to exceed actual costs of $30,525.44.
25 Jul 2023

NAKHLE v NADIN-HARVEY [2023] NZHC 1904

Citation

[2023] NZHC 1904
Court

High Court

The Court fixed fair occupation rent at $1,250 per week for 1 February 2023–19 July 2023 and $1,300 per week from 20 July 2023 until vacation; awarded plaintiff costs of $11,711 and disbursements of $2,040; ordered the property marketed and sold by auction on specified terms with the auction reserve price suppressed pending an unconditional sale; and set detailed priority payments and distribution of net proceeds.
31 Mar 2023

WL v AJ [2023] NZHC 703

Citation

[2023] NZHC 703
Court

High Court

The Agreement was void under s21F because the parties did not obtain the independent legal advice nor lawyer witnessing/certification required; s21H could not validate the Agreement because non‑compliance materially prejudiced AJ given her vulnerability and the substantive effect of the Agreement; even if valid it would have been set aside under s21J for serious injustice as the Agreement became unreasonable over time; accordingly the family home and other relationship property are to be divided equally under the PRA and AJ's claim for occupation rent and WL's constructive trust/knowing recei…
25 Nov 2022

GRANT v EVERETT [2022] NZHC 3109

Citation

[2022] NZHC 3109
Court

High Court

The Court refused extension of time and special leave because the appeal was over 18 months out of time with inadequate explanation, weak prospects of success and likely prejudice to the respondent; the District Court's strike-out was upheld because the Family Court orders had vested the property in the respondent and the pleaded privacy/intrusion/human rights causes of action could not be made out on the pleaded facts (intrusion into seclusion not established, NZBORA/UDHR do not create private causes of action between individuals).
5 Oct 2022

9bedfddf-7ea3-4666-b129-beb8dc2d6de2.pdf

Citation

openlaw-6c6ab34e_3f72_4db5_9bab_6d58fedd9d56.pdf
Court

High Court

The $200,000 advances were direct contributions to the Grahamtown property made in circumstances where the plaintiff had a reasonable expectation, acknowledged by the first defendant and acquiesced in by the second trustee, that the advances would be recognised by a 20% beneficial interest; trustees of the SKFT, having accepted and benefited from those advances without formal objection, were bound in conscience to yield that interest, giving rise to a constructive trust; a life interest was not established or workable after separation; equitable compensation in lieu was appropriate and quanti…
18 Jul 2022

CUMMING v SMYTH [2022] NZHC 1701

Citation

[2022] NZHC 1701
Court

High Court

Because the defendant did not contest the application, the property was vacant, deteriorating and subject to mortgage arrears, and the statutory considerations in s342 favoured sale, the Court exercised its s339 and s343 discretion to grant summary judgment ordering sale by deadline treaty with specified sale and disbursement directions and a $200,000 retention pending determination of occupation rent and contribution claims.
22 Jun 2022

CHINAPPA v NARAIN [2022] NZCA 259

Citation

[2022] NZCA 259
Court

Court of Appeal

The Court allowed correction of the clerical date error under r 8 but refused to alter the substantive award of a 20% beneficial interest to the first respondent because that interest equates to her direct 20% financial contribution; the appellants, having funded the remaining 80% by borrowing, remain solely responsible for repayment of those borrowings and the 20% award does not absolve responsibility for apportioning sale costs, which would be addressed at sale or by the High Court.
7 Dec 2021

SWANSON v NORRIS [2021] NZHC 3342

Citation

[2021] NZHC 3342
Court

High Court

Given estate insolvency, accruing mortgage/rates arrears, the defendant's sole occupation without contributing and failure to engage, the court exercised its discretion under s 339 to order sale and used s 343 to grant ancillary orders (vacate date, exclusive occupation to plaintiff after vacate date, postponement of marketing until a set date, plaintiff's control of agent/marketing, Registrar to sign listing and sale documents) while preserving plaintiff's ability to establish by further affidavit any deductions for repairs, utilities and occupation rent to be charged against the defendant's…
6 Oct 2021

HOSSEINI v HOSSEINI [2021] NZHC 2667

Citation

[2021] NZHC 2667
Court

High Court

Given no party was comprehensively successful and the family context, the discretionary position is that costs should lie where they fell; applicants' reliance on unaccepted settlement offers did not justify an award of 2B costs because the judgment did not give the returns sought in those offers.
21 Sept 2021

TOLLEY & ORS v HONA [2021] NZHC 2481

Citation

[2021] NZHC 2481
Court

High Court

Given plaintiffs are majority co-owners in an intolerable position caused by the defendant's non-cooperation and abuse of trust, the court exercised its s339 discretion to order an immediate valuation with compelled access, staged sale directions to a family purchaser with proceeds held in solicitors' trust pending distribution, and adjourned the separate reparation claim to permit participation or joinder of the Public Trust/estate because primary fiduciary duties ran to the deceased and the administrator may be the proper claimant.