Johns v Lord - [2021] NZHC 1850

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-2218

[2021] NZHC 1850

IN THE MATTER of the Family Protection Act 1955 and Section 60 of the Senior Courts Act 2016

BETWEEN

STEPHEN HENRY CYRIL JOHNS

Appellant

AND

CHRISTOPHER NORMAN LORD AND COLIN CLIVE HOLLOWAY

First Respondents

GAIL PATRICIA JOHNS

Second Respondent

Hearing: On the papers

Counsel:

S Mitchell for the Appellant

DRI Gay for the First Respondents
G C Jenkin for the Second Respondent

Judgment:

22 July 2021

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me on 22 July 2021 at 11 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Conveyancing Centre, Auckland
Craig Griffin & Lord, Auckland Brannigans, Auckland

Counsel:S Mitchell, Auckland DRI Gay, Auckland
G C Jenkin, Auckland

JOHNS v LORD [2021] NZHC 1850 [22 July 2021]

Introduction

[1] This is an application for costs by the second respondent, Gail Johns. The application is also made on behalf of the first respondents, Christopher Lord and Colin Holloway, the executors of the will of Mrs Johns’ late husband, Lewis Johns.

[2] In my judgment of 25 February 2021,1 I dismissed an appeal brought by the appellant, Stephen Johns, against a decision of Judge Burns in the Family Court at Auckland,2 refusing an application by Stephen Johns for further provision from the estate of his late father, Lewis Johns.

[3] Mr Johns then filed an application for leave to appeal. With the agreement of the parties I determined the application on the papers. In my judgment of 16 June 2021 I refused Mr Johns’ application for leave to appeal to the Court of Appeal.3

[4] The parties have not been able to agree costs and separate memoranda have been filed.

The claim for costs

[5]Mrs Johns seeks costs on a scale 2B basis of $5,975 plus disbursements, being

$50 for the filing fee for the sealing of my previous costs order. The costs claim involves three steps which are set out in Table A of the annexure to this judgment, which reproduces the table annexed to the submissions of Mr Jenkin, counsel for Mrs Johns.

[6] Mr Jenkin supports the claim by submitting that although the executors have always been separately represented, in order to save costs the opposition to the application for leave to appeal was conducted by Mr Jenkin on behalf of Mrs Johns but with input from counsel for the executors.

[7] Mr Jenkin acknowledges that the time spent preparing the memorandum referred to in step 11 in Table A was less than the time allocated under Schedule 3.

1      Johns v Lord [2021] NZHC 281.
2      Johns v Lord [2020] NZFC 8974.
3      Johns v Lord [2021] NZHC 1422.

But he says the time in relation to the other two steps, preparing the notice of opposition and opposing submissions, exceeded the time allocated for these steps under Schedule 3. As an overall consequence,…

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] NZHC 1850
Case: [2021] NZHC 1850
Decision Date: 22 July 2021

CaseChat Overview and Summary

The case of Johns v Lord involves an appeal by Stephen Johns against a decision of the Family Court, which in turn was an application by him for further provision from the estate of his late father, Lewis Johns. The first respondents are the executors of Lewis' will, Christopher Lord and Colin Holloway. The second respondent is Lewis' widow, Gail Johns. The appellant, Stephen Johns, had initially lost his appeal in the Family Court and subsequently sought leave to appeal to the Court of Appeal, which was also dismissed by the High Court. The second respondent, Gail Johns, has now applied for costs in relation to the unsuccessful leave to appeal application.

The legal issues in this case revolve around the assessment of costs for the leave to appeal application, specifically whether the costs claimed by the second respondent are reasonable and appropriate under the circumstances. Gail Johns claims costs on a scale 2B basis, which amounts to $5,975 plus disbursements. Counsel for the second respondent argues that the time spent on the application exceeded the allocated time for each step, although the time spent on one step was less than the allocated time. Counsel for the appellant, on the other hand, contends that the costs claimed are excessive and that a lesser amount should be awarded.

The court considered the correct categorisation and banding for each step of the proceedings. The court found that the proceedings fell under category 2, as they were of average complexity and required counsel of skill and experience. However, the court determined that a comparatively small amount of time was reasonable for each of the three steps, placing them in band A. The court calculated the costs on a 2A basis, resulting in a total of $2,390 for the steps, plus $50 in disbursements, for a grand total of $2,440. The court found that awarding costs on a 2B basis would result in an amount in excess of reasonable costs.

In conclusion, the court ordered Stephen Johns to pay total costs of $2,440 to the second respondent, Gail Johns. The court determined that the costs claimed were excessive, and that a lesser amount was appropriate given the circumstances of the case. The costs awarded were based on a 2A scale, which the court found to be more reflective of the reasonable costs incurred in opposing the leave to appeal application.

Orders