Johns v Lord - [2022] NZHC 3

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2021-404-1544

[2022] NZHC 3

IN THE MATTER OF The Family Proceedings Act 1980 and The Property (Relationships) Act 1976

BETWEEN

STEPHEN HENRY CYRIL JOHNS

Appellant

AND

CHRISTOPHER NORMAN LORD AND COLIN CLIVE HOLLOWAY

First Respondents

GAIL PATRICIA JOHNS

Second Respondent

On the papers

Counsel:

S R Mitchell for the appellant G C Jenkin for the respondents

Judgment:

7 January 2022

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 7 January 2022 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

JOHNS v LORD AND HOLLOWAY [2022] NZHC 3 [7 January 2022]

[1] The appellant, Mr Johns, appeals against an award of costs by Judge D A Burns in the Family Court at Auckland.1

Background

[2] In October 2018, Mr Johns filed an application under ss 3 and 4 of the Family Protection Act 1955 seeking further provision out of his late father’s estate. The application was advanced on the basis his father (Mr L R Johns) had failed to make provision from his estate for Mr Johns’ proper maintenance and support.

[3] The executors of Mr L R Johns’ estate were the respondents to Mr Johns’ application (and are the first respondents to this appeal). They filed a notice of defence. This stated, among other things, that there were insufficient net assets in the estate to pay a bequest of $20,000 provided for in the will to Mr Johns (or, indeed, any other bequests provided for in the will). The executors had earlier advised Mr Johns of this in a letter which recorded the estate’s financial position.

[4] Mrs Johns, the widow of the late Mr Johns, was ordered to be served with Mr Johns’ application in her capacity as a beneficiary. Mrs Johns opposed the application. She is the second respondent to this appeal.

[5] Mr Johns’ application was allocated a half-day hearing on 1 October 2020. Shortly before the hearing Mr Johns advised the Court and parties that he intended to apply for an adjournment. He made that application at the start of the hearing.

[6] Mr Johns sought the adjournment on the basis that the executors had failed to take appropriate steps to ensure assets were properly brought within the estate. His argument focussed on the proceeds of the sale of a property, inherited by Mr L R Johns, of about $394,000 which Mr L R Johns had received in 2014, three years before his death. At the time of receipt Mr L R Johns had lost capacity and Mrs Johns had an enduring power of attorney. Mrs Johns decided under the power of attorney that the money should be paid into their joint account. Approximately $170,000 was

1 Johns v Lord [2021] NZFC 4522.

subsequently used to pay Mr L R Johns’ rest home fees. The balance passed to Mrs Johns by way of survivorship when Mr…

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 [2022] NZHC 3
Case: [2022] NZHC 3
Decision Date: 7 January 2022

CaseChat Overview and Summary

The appellant, Mr. Johns, appealed a costs award by Judge D A Burns in the Family Court at Auckland. The appeal centered on a decision by Judge Burns to award two sets of costs, one to Mrs. Johns and another to the executors of the late Mr. Johns' estate. The legal issues were whether the Judge's award of costs to Mrs. Johns precluded him from making a further award in favour of the executors and whether the Judge erred by not applying rule 14.14 of the District Court Rules 2014, which generally requires only one set of costs if defendants defend separately. The Court found that the Judge's initial award of costs to Mrs. Johns did not preclude him from awarding additional costs to the executors as their roles in the proceeding were distinct from Mrs. Johns'. The Court also determined that rule 14.14 did not apply because the executors and Mrs. Johns had different roles and needed to separately defend the allegations made against them. Consequently, the appeal was dismissed, and Mr. Johns was ordered to pay costs of $8,365 to Mrs. Johns.

Orders