Johns v Lord
[2021] NZHC 1422
•16 June 2021
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 RespondentJudgment:
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 provision from his father’s estate on the basis that his father had failed to make provision for his proper maintenance and support. Stephen then filed an application to adjourn the substantive application, submitting that funds that had been paid by Mrs Johns into a joint bank account during his father’s lifetime should have been part of his father’s estate. He submitted that issue needed to be resolved first and the executors should have made demands from Mrs Johns for that sum. The executors had previously made it clear that they did not intend to do so.
[8] The executors accepted that Stephen fell under s 3 of the FPA and could make an application under s 4 of the FPA. However, they submitted there were insufficient net assets available to pay Stephen the bequest of $20,000.
[9] Judge Burns refused the adjournment application and dismissed the substantive application on the basis there were no funds in the estate.
[10] Stephen appealed Judge Burns decision to this Court. Specifically, he appealed Judge Burns’ refusal of his application under s 4(1) of the FPA. In my judgment, I said:
[37] Before I turn to the grounds of appeal, I make a preliminary observation. The purpose of this proceeding is not for this Court to determine the rights and wrongs of the decision on the application for an adjournment. The purpose is to determine whether or not adequate provision has been made for the proper maintenance and support of Stephen from the estate. That is the inquiry required under s 4(1) of the FPA. It is Judge Burns’ decision on that issue that is the subject of the appeal. That is clear from the notice of appeal. It states that “The appellant appeals against Part B of the judgment
…”. I note there was no part of the judgment under appeal specifically identified as Part B, but the notice of appeal goes on to say:
The part of the judgment appealed against is the part declining the claim for an award pursuant to Section 15.
…
[39] In broad terms, the adjournment was refused on the grounds of delay and that any application under s 103 of the PPPRA to review the decision of Mrs Johns regarding payment of the $394,142 into a joint account was unlikely to succeed. If there were any errors in the Judge’s analysis on that latter issue, it is not necessary for this Court to decide that. They go to the Judge’s decision on the adjournment, which, as I have noted, is not under appeal.
…
[45] As I have noted, the Family Court does have power to review dealings under s 107 of the PPPRA regarding the holders of powers of attorney if an application is made under s 103 of the PPPRA. But as I have also noted no such application has ever been filed even though the possibility of doing so was flagged by counsel for the appellant in the middle of 2019.
[46] There being no assets in the estate, the Judge’s decision refusing the substantive application was inevitable.
The application
[11]The grounds upon which Stephen seeks leave to appeal are:
(a)The High Court Judge was wrong to find that adequate provision had been made for the proper maintenance and support of Stephen, from the estate;
(b)The Court was wrong to find that there were no assets in the estate in circumstances where the executors had failed in their duty to secure all the assets in the estate;
(c)The Court was wrong to refuse to allow the applicant an opportunity in the absence of the executors exercising their duties, to bring appropriate proceedings to secure the assets of the estate; and
(d)The Court was wrong to find the prompt resolution of proceedings outweighed the interests of the applicant in securing the assets of the estate.
[12] Mr Johns submits that this Court should grant leave to appeal because the grounds of leave to appeal are of significant public and private importance. He says the grounds are capable of serious argument and are of sufficient importance to warrant a second appeal. He says there is a serious public interest in hearing the question of law in the leave to appeal application.
Law
[13] Section 60 of the of the Senior Courts Act governs appeals from a decision of the High Court on appeal from the Family Court. It provides:
60 Appeals against decisions of High Court on appeal from District Court, Family Court, or Youth Court
(1)The decision of the High Court on appeal from the District Court, the Family Court, or the Youth Court is final unless a party, on application, obtains leave to appeal against the decision to the Court of Appeal.
(2)An application under subsection (1) for leave to appeal to the Court of Appeal must be made to the High Court or, if the High Court refuses leave, to the Court of Appeal.
[14] McGechan on Procedure sets out the threshold for second appeals to the Court of Appeal:5
The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal. Not every alleged error of law is of such importance, either generally or to the parties, as to justify further pursuit of litigation already twice considered and ruled upon by a Court, so the test is a restricted one.
[15] The threshold is high. The reason for such a high test is to ensure the valuable resources of the Court of Appeal are not unnecessarily wasted, and additional expense is not incurred by the parties unless there is some “realistic hope of benefit”.6 The appellant bears an onus of satisfying the appeal court that it should differ from the decision under appeal.7
[16] In the Family Court, Stephen’s application was made under s 4 of the FPA which provides:
4 Claims against estate of deceased person for maintenance
(1) If any person (referred to in this Act as the deceased) dies, whether testate or intestate, and in terms of his or her will or as a result of his or her intestacy adequate provision is not available from his or her
5 Andrew Beck and others McGechan on Procedure (looseleaf ed, Brookers) at [SC60.02]. See also Waller v Hider [1998] 1 NZLR 412 (CA) at 413, affirmed in Downer Construction (New Zealand Ltd v Silverfield Developments Ltd [2007] NZCA 355, [2008] 2 NZLR 591 at [30]–[31].
6 Ireland v Grant [2014] NZHC 2496 at [9].
7 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4]–[5].
estate for the proper maintenance and support of the persons by whom or on whose behalf application may be made under this Act, the court may, at its discretion on application so made, order that any provision the court thinks fit be made out of the deceased’s estate for all or any of those persons.
Discussion
[17] The essence of Stephen’s arguments are encapsulated in his reply submissions. He says that it has never been his position that within the Family Court proceedings, the Court should have investigated (the alleged) improper use by Mrs Johns of the enduring power of attorney, or the (alleged) breaches by the executors for their refusal/failure to issue proceedings (seeking that the Family Court review Mrs Johns’ decision as the holder of the power of attorney under s 107 of the PPPRA8).
[18] That acknowledgment rather cuts across ground (b) in the application for leave to appeal.
[19] Stephen repeats his submission that he had not suggested that an investigation into the actions of Mrs Johns should have taken place as part of the Family Court proceedings. But he says that a further opportunity should have been provided to him to make such an application himself, given the refusal by the executors to do so. In other words, he submits that the Family Court Judge should have granted his application for an adjournment of the hearing to enable him to bring an application himself under the PPPRA.
[20] As noted in [37] of the substantive judgment set out in [10] above, the decision of Judge Burns on the adjournment was not part of the appeal to this Court (in that regard ground (c) of the application for leave is misconceived and ground (d) was not a finding made by this Court). Although the issue of an adjournment was not part of the appeal, I commented on that issue in the substantive judgment:9
[40] In any event, it seems to me that the delay argument in opposition was a strong one. Stephen had knowledge of the executors’ position regarding the
8 A person may make an application under s 103 of the Protection of Personal and Property Rights Act 1988 to initiate the review.
9 Johns v Lord, above n 1. See generally the summary of procedural history in Family Court at [13]–[29] of the substantive judgment and the opportunities for Stephen to bring an application himself against Mrs Johns.
payment of $394,142 into the joint bank account since 21 February 2018; he received further details in the two affidavits of August 2019; he was considering the possibility of bringing applications as referred to by Judge Druce in November 2019; and he was told by Judge Fleming on 14 May 2020 if he proposed to make a separate application for assets to be transferred to the estate, he would need to get on and do that. He did not do so and still, as [sic] the date of the hearing of the appeal in this court, he had not done so. I put all the matters relating to the adjournment to one side. The appeal is in relation to the decision on the substantive application.
[21] For completeness, I address ground (a) of the application for leave to appeal. This ground misstates the decision of this Court, which was that there being no assets in the estate, the Judge’s decision refusing the substantive application was inevitable.10 I accepted the submission of Mr Gay for the executors that there would have been no purpose in the Family Court inquiring into whether a breach of moral duty existed on the facts because there was no money in the estate.11
[22] For all the above reasons, the application does not reach the threshold for a second appeal to the Court of Appeal.
Result
[23]The application is refused.
Costs
[24] Submissions in opposition to the application for leave to appeal were filed by Mr Jenkin, counsel for Mrs Johns, on behalf of both Mrs Johns and the executors. Mrs Johns seeks costs. As the successful party, Mrs Johns is prima facie entitled to costs.
[25] If the parties can agree on costs, they may file a joint memorandum within 15 working days of the date of this judgment. In the absence of agreement, counsel for Mrs Johns is to file and serve a memorandum within five working days of the date for the joint memorandum. Counsel for Stephen is to file and serve any memorandum in opposition within five working days of the date of service of the memorandum on
10 Johns v Lord, above n 1, at [46].
11 Johns v Lord, above n 1, at [43] and [44].
behalf of Mrs Johns. Memoranda are not to exceed four pages (excluding attachments).
[26]I will determine costs on the papers.
Gordon J