Man sought to remain in property parents passed down, which siblings wanted to sell
In a case among siblings revolving around property their parents had passed down, New Zealand’s Supreme Court denied a stay application upon determining that the Court of Appeal had applied settled principles to a stay application before that court.
In Easthope v Ale [2026] NZSC 56, a married but separated couple had four children, including the respondent first child and the applicant second child. When the father died in November 2000, his estate’s principal asset was his half-interest in a property in Mount Eden, Auckland.
The father’s will equally divided his estate between the mother and his third child. After a successful claim under the Family Protection Act 1955 (FPA), the mother obtained a life interest in his estate’s half‑interest in the property.
Since around 2001 or 2002, the second child and his mother have been residing on the property. The mother remained there until her death in August 2021. Her will equally split her estate among her first, second, and fourth child.
The first child, as executor of the father’s estate, and the fourth child, as executor of the mother’s estate, entered into a deed of family arrangement to sell the property.
Of the net sale proceeds after the payment of debts, half would go to the third child as a beneficiary of the father’s estate, while the other half would go to the mother’s estate for distribution under her will.
To enable the sale, the first child arranged for the service of a notice for the second child to vacate the property. However, the second child refused to leave.
Before the High Court of New Zealand, the first child sought summary judgment for vacant possession, while the second child commenced FPA proceedings in connection with his mother’s estate.
The High Court granted summary judgment and ordered the second child to vacate the property. Before the Court of Appeal of New Zealand, the second child challenged the High Court decision and sought a stay. The appeal court declined his stay application.
Before the Supreme Court, the second child applied for leave to appeal. He also sought a stay under r 30 of the Supreme Court Rules 2004. In his proposed appeal, the second child alleged that:
The Supreme Court of New Zealand dismissed the second child’s applications seeking leave to appeal and a stay. The Supreme Court found it appropriate to order him to pay the first child reduced costs of $1,000.
The Supreme Court saw no question of general or public importance, no apparent miscarriage of justice in the civil context, no need to hear the proposed appeal in the interests of justice, and no reason to question the appeal court’s assessment of the overall balance of convenience.
The Supreme Court acknowledged the heavy weight of the second child’s appeal rights. However, the Supreme Court also recognised other interests at stake, including the executors’ undertaking that sought to help protect the second child’s interests.
