Johns v Lord - [2021] NZHC 878

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-2218

[2021] NZHC 878

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

Hearing: On the papers

Appearances:

S Mitchell for the Appellant

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

Judgment:

23 April 2021

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me on 23 April 2021 at 12 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 878 [23 April 2021]

Introduction

[1] This is an application for costs by the first respondents, Christopher Lord and Colin Holloway, the executors of the estate of the late Lewis Johns (the executors) and the second respondent, Gail Johns, Mr Johns’ widow.

[2] The appellant, Stephen Johns,1 (the son of Mr Johns from a former marriage) appealed Judge Burns’ decision in the Family Court refusing his application for further provision from his father’s estate under s 4(1) of the Family Protection Act 1955. In my judgment dated 25 February 2021, I dismissed Mr Johns’ appeal.

[3] The executors and Mrs Johns each seek standard 2B scale costs and disbursements of $12,060 and $13,255 respectively against Stephen.

[4] Stephen opposes paying any costs because he claims he is impecunious, and it would be unfair to require him to pay. He also opposes paying costs because he says it is unfair that the executors and Mrs Johns had separate counsel.

Background

[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.

[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

1 Given the common surname I will refer to the appellant by his first name and his father as either Mr Johns or the late Mr Johns.

that his father had failed to make provision for his proper maintenance and support. He then filed an…

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 878
Case: [2021] NZHC 878
Decision Date: 23 April 2021

CaseChat Overview and Summary

In the case of Johns v Lord, the first respondents, Christopher Norman Lord and Colin Clive Holloway, executors of the late Lewis Johns' estate, and the second respondent, Gail Patricia Johns, the widow of the late Mr Johns, sought costs and disbursements against the appellant, Stephen Henry Cyril Johns, the son of the late Mr Johns. The application for costs was made following Stephen's unsuccessful appeal against the Family Court's refusal of his application for further provision from his father's estate under section 4(1) of the Family Protection Act 1955. Stephen opposed the application for costs on the grounds of impecuniosity and the alleged unfairness of the respondents having separate counsel. The court considered the principles of awarding costs and the exceptions outlined in the High Court Rules. The court found that while Stephen was impecunious, this was not a sufficient reason to depart from the general principle that the successful party should be awarded costs. The court also determined that the separate representation of the respondents was not a valid reason to deny the costs claim. Consequently, the court awarded the executors and Mrs Johns standard 2B scale costs and disbursements against Stephen. The total costs and disbursements awarded to the executors were $6,682.50, and to Mrs Johns, $7,877.50.

In summary, the High Court found that Stephen Johns, the appellant, was liable to pay costs to the executors of his father's estate, Christopher Norman Lord and Colin Clive Holloway, and his stepmother, Gail Patricia Johns. The court dismissed Stephen's arguments that the award of costs would be unfair due to the separate representation of the respondents and his impecuniosity. The court awarded costs on a 50:50 basis for certain steps of the proceedings and separately for Mrs Johns' involvement in a case management conference. The court also determined that the costs claimed by the respondents did not exceed the actual costs incurred during the proceeding. The total costs and disbursements awarded to the executors were $6,682.50, and to Mrs Johns, $7,877.50.

Orders