Johns v Lord - [2021] NZHC 1422

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-2218

[2021] NZHC 1422

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

Appearances:

S Mitchell for the Appellant

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

Judgment:

16 June 2021

JUDGMENT OF GORDON J

[Application for leave to appeal]

This judgment was delivered by me on 16 June 2021 at 2 pm, 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 1422 [16 June 2021]

Introduction

[1] In my judgment of 25 February 2021 (substantive judgment),1 I dismissed Stephen Johns’ appeal against Judge Burns’ decision in the Family Court2 refusing his application for further provision from his father’s estate under s 4(1) of the Family Protection Act 1955 (FPA).

[2] On 24 March 2021, Stephen3 filed a notice of application for leave to appeal my decision to the Court of Appeal pursuant to s 60 of the Senior Courts Act 2016.

[3] The first respondents, Christopher Lord and Colin Holloway (the executors of the will of the deceased, Mr Johns) and the second respondent, Gail Johns (Mr Johns’ widow), oppose the application for leave to appeal. The parties filed written submissions and agreed to my giving judgment on the papers.

Background

[4] In my costs judgment,4 I summarised the background to the appeal. It is convenient to repeat that summary here.

[5] The late Mr Johns died on 26 September 2017. Probate of Mr Johns’ will, dated 15 May 2002, was granted on 1 November 2017 in favour of the executors. Mr Johns’ will provided for Mrs Johns, who received gifts of chattels. The will also provided a bequest of $20,000 to Stephen, $30,000 to one of his sisters and $40,000 to the other. Mr Johns’ brother received an annuity of $4,000 and the residual trust property went to the Lewis Richard Trust (the Trust).

[6] On 21 February 2018, the executors sent a letter to the beneficiaries advising there were insufficient net assets in the estate to pay the bequests or the annuity. The value of the estate comprised cash of $710.

1      Johns v Lord [2021] NZHC 281 (substantive judgment).
2      Johns v Lord [2020] NZFC 8974.
3      I will refer to Stephen Johns by his first name to avoid confusion with his father who has the same surname. No disrespect is intended by the use of the first name.
4      Johns v Lord [2021] NZHC 878.

[7] On 31 October 2018, Stephen filed an application in the Family Court under ss 3 and 4 of the FPA seeking further…

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 1422
Case: [2021] NZHC 1422
Decision Date: 16 June 2021

CaseChat Overview and Summary

The case of Johns v Lord involves an appeal by Stephen Johns against the decision of Judge Burns in the Family Court, which had dismissed his application for further provision from his father’s estate under section 4(1) of the Family Protection Act 1955. The first respondents, Christopher Lord and Colin Holloway, who are the executors of Mr Johns’ will, and the second respondent, Gail Johns, the widow of Mr Johns, oppose the application for leave to appeal to the Court of Appeal. The legal issues in the case revolve around whether the High Court should grant leave for an appeal against its decision dismissing the appeal, given that the decision of the High Court on appeal from the Family Court is final unless leave is obtained.

The court examines whether the application for leave to appeal satisfies the threshold for a second appeal, which requires the appeal to raise a question of law or fact capable of serious argument and involving an interest of sufficient importance to outweigh the costs and delays of further appeal. The court found that the application did not meet this threshold. Specifically, the court noted that the Family Court Judge had dismissed the substantive application because there were no assets in the estate, and the High Court's decision on appeal was that this outcome was inevitable. Furthermore, the court dismissed grounds (b), (c), and (d) of the application for leave to appeal as either misconceived or not findings made by the High Court.

The application for leave to appeal is ultimately refused. The court ordered that if the parties cannot agree on costs, Mrs Johns, the successful party, is entitled to costs, and detailed procedures for determining these costs are set out in the judgment.

Orders