101. Banks v Bennett [2023] NZHC 2864 (HC: Brittain AJ)

Trespass—mesne profits—defendant a beneficiary of estate that owned house

The plaintiff and defendant were sister and brother, respectively. They had both been appointed executors of their mother’s will, but administration was granted to the plaintiff alone because at the time of the mother’s death the defendant was in prison. The will directed the sale of a house owned by the mother, with the proceeds to fall into residue. When he came out of prison, the defendant occupied the house and refused to leave it. The plaintiff sought and obtained orders for the defendant’s eviction, following which he vacated the house. The plaintiff also sought mesne profits for the period of the defendant’s occupation. The defendant cross-claimed for certain work he had done on the house, a point the plaintiff later conceded.

Decision: Mesne profits granted.

Held: (1) Although the defendant was a beneficiary of the estate and entitled to half of the residue, he was nonetheless a trespasser and obliged to pay a reasonable rental for the period of occupation. (2) Execution of the judgment should be stayed until the estate was distributed (at which stage the mesne profits and costs could be recovered).

102. Body Corporate 406198 v Property Opportunities Ltd [2023] NZCA 302; [2023] 3 NZLR 140 (CA: Katz, Whata and Davison JJ) (leave to appeal declined: [2023] 
NZSC 157)

Ultra vires—void terms—restitution of payments—counter-restitution for services

The plaintiff body corporate had certain ownership and other rights in respect of two tower blocks containing over 150 units, part of which came to be used as a hotel and serviced-apartment business. The defendant was the management company for the building. The plaintiff was governed by certain rules, the content of which was subject to statutory regulation under the Unit Titles Act 1972. A number of these rules were challenged as being ultra vires the statute, as were contracts purportedly entered into on the basis of the rules. Part of the challenge was that the relevant rules and associated contracts related