Johns v Lord - [2021] NZCA 541

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA428/2021
[2021] NZCA 541

BETWEEN	STEPHEN HENRY CYRIL JOHNS Applicant
AND	CHRISTOPHER NORMAN LORD AND COLIN CLIVE HOLLOWAY First Respondents GAIL PATRICIA JOHNS Second Respondent

Court:	French and Brown JJ
Counsel:	S R Mitchell for Applicant G C Jenkin for Respondents
Judgment: (On the papers)	19 October 2021 at 9 am

JUDGMENT OF THE COURT

AThe application for leave to bring a second appeal is declined.
BThe applicant must pay one set of costs to the respondents for a standard application on a band A basis with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

Mr Johns seeks leave to appeal a decision of Gordon J in the High Court.[1] Leave is required under s 60 of the Senior Courts Act 2016 because the proposed appeal would be a second appeal, the High Court decision being itself an appeal from the Family Court.[2]
[1]Johns v Lord [2021] NZHC 281 [High Court decision].
[2]Johns v Lord [2020] NZFC 8974 [Family Court decision].
As required, Mr Johns first asked the High Court to grant him leave to appeal to this Court. The High Court declined to grant leave and accordingly Mr Johns now seeks special leave to appeal from this Court.[3]

Background

[3]Johns v Lord [2021] NZHC 1422 [Leave decision].

The first respondents are the trustees and executors of the estate of Mr Johns’ father. The second respondent is the latter’s widow and Mr Johns’ stepmother. She and Mr Johns’ father were married for 38 years.
Under his will, Mr Johns’ father had made a bequest of $20,000 to Mr Johns. Mr Johns applied under the Family Protection Act 1955 to the Family Court for further provision from the estate. The application was opposed on the grounds that even if the claim was meritorious, the estate did not have any assets. At some stage, Mrs Johns offered to pay the bequest to Mr Johns out of her own funds in final settlement of any claims. Mr Johns did not accept that offer.[4]
[4]A similar offer made to each of his sisters who accepted and respectively received bequests of $30,000 and $40,000.
A week before the date allocated for the hearing of the Family Protection Act claim, Mr Johns sought an adjournment on the grounds that the hearing should not proceed until an issue regarding bank account monies had been resolved.
It appears this issue had been simmering for some time and had already been the subject of an earlier adjournment application. Three years before he died, the father had received inherited funds of $394,142. The money was paid by Mrs Johns using an enduring power of attorney into a bank account in the joint names of herself and Mr Johns’ father. That meant that on the father’s death, the money passed to Mrs Johns by way of survivorship and did not form part of his estate. It appears that during the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Johns v Lord

Details

AGLC: Johns v Lord [2021] NZCA 541
Case: [2021] NZCA 541
Decision Date: 19 October 2021 at 9 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Mr. Stephen Henry Cyril Johns sought leave to appeal against a decision of Gordon J in the High Court, which dismissed his appeal against the Family Court's decision to deny his application for further provision from his deceased father's estate under the Family Protection Act 1955. The first respondents, the trustees and executors of the estate, and the second respondent, the widow and stepmother of the deceased, opposed the application. Mr. Johns' father had left him a bequest of $20,000 in his will, but Mr. Johns sought further provision on the grounds that the estate had sufficient assets. The Family Court dismissed the application on the basis that there were no assets in the estate. The High Court subsequently dismissed Mr. Johns' appeal against that decision.

The legal issues before the Court of Appeal were whether Mr. Johns' application for leave to bring a second appeal should be granted and, if so, what the appropriate costs order should be. Mr. Johns argued that the appeal should be allowed because there had been a serious injustice in the dismissal of his application for further provision and the denial of his request for an adjournment. The Court of Appeal, however, found that Mr. Johns had not satisfied the high legal threshold for obtaining leave to bring a second appeal. The Court noted that aspects of the proposed grounds of appeal were misconceived and that the proposed appeal lacked merit. The Court also found that the absence of any assets in the estate was fatal to Mr. Johns' claim, and that the reasoning of Gordon J on this point was unassailable. The Court of Appeal therefore declined Mr. Johns' application for leave to bring a second appeal and ordered that he pay one set of costs to the respondents for a standard application on a band A basis with usual disbursements.

This decision highlights the importance of satisfying the high legal threshold for obtaining leave to bring a second appeal. The Court of Appeal found that Mr. Johns had not met this threshold, and that the proposed appeal lacked merit. The Court also found that the absence of any assets in the estate was fatal to Mr. Johns' claim. The Court's decision also highlights the importance of finality in legal proceedings, and the need to balance the interests of finality with the requirements of justice. In this case, the Court found that the interests of finality outweighed the requirements of justice, and that the proposed appeal should be declined. Finally, the Court's decision highlights the importance of proper legal representation and advice in family law proceedings. Mr. Johns' counsel acknowledged that the proposed grounds of appeal were case specific and not of general or public importance, but argued that there had been a serious injustice which warranted a second appeal. The Court of Appeal, however, found that the proposed appeal lacked merit and that Mr. Johns had not satisfied the high legal threshold for obtaining leave to bring a second appeal.

Orders