Johnson v Johnson - [2017] NZCA 147

For a Court ready (fee required) version please follow this link

IN THE COURT OF APPEAL OF NEW ZEALAND

CA243/2016
[2017] NZCA 147

BETWEEN	RICHARD OWEN JOHNSON Appellant
AND	TAMARIE ELLIS JOHNSON Respondent

Hearing:	23 March 2017
Court:	Kós P, Miller and Brown JJ
Counsel:	R J Hooker for Appellant R C Knight and T A Chubb for Respondent
Judgment:	28 April 2017 at 4.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed. The husband must pay costs as for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Introduction

The parties are a formerly married couple who emigrated to New Zealand from Oregon in July 2010, only to separate on 1 January 2011. The husband took a flat in Auckland, but eventually returned to the United States. Their relationship property comprised movable assets, and most of it was situated in the United States.
In February 2011 the husband commenced relationship property proceedings in the Circuit Court of the State of Oregon, and two months later the wife commenced corresponding proceedings in the Family Court at North Shore. The Circuit Court twice rejected the wife’s protest to jurisdiction and she eventually withdrew, maintaining her protest. The husband did not pursue a protest in New Zealand. On the contrary, he participated fully in the wife’s proceeding.
The husband won a judgment, apparently by formal proof, in Oregon around November 2014. In May 2016 the wife won a judgment in the High Court at Auckland, to which her proceeding had been transferred by consent.[1] The New Zealand judgment followed a defended hearing. Both judgments dealt with the same movable assets. The Oregon judgment distributed assets between the parties and resulted in a balancing payment to be made by the wife. The New Zealand judgment adopted an agreed distribution of assets and resulted in a balancing payment to be made by the husband.
[1]Johnson v Johnson [2016] NZHC 890, [2016] 3 NZLR 227 [HC Interim Judgment].
Asher J held that the High Court had jurisdiction over the parties’ relationship property and rejected a claim that the wife was estopped by the Oregon judgment, which was not delivered on the merits so as to give rise to issue estoppel and in any event had been procured by the husband’s fraud.[2] He later gave a second, final judgment which dealt with miscellaneous matters still at issue after the earlier judgment.[3]
[2]At [16], [30] and [54]–[56].
[3]Johnson v Johnson [2016] NZHC 1606, [2016] NZFLR 634 [HC Final Judgment].
On appeal, the husband maintains that the High Court was without jurisdiction to decide the wife’s proceeding; alternatively, that the Circuit Court’s decision gave rise to issue estoppel. It is said that fraud is irrelevant because the High Court was not being asked to enforce the Oregon judgment; and in any event, Asher J’s findings were wrong.
In our opinion the litigation has miscarried, a direct consequence of the husband’s election not…

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 Johnson v Johnson

Details

AGLC: Johnson v Johnson [2017] NZCA 147
Case: [2017] NZCA 147
Decision Date: 28 April 2017 at 4.00 pm

CaseChat Overview and Summary

In Johnson v Johnson, the Court of Appeal dismissed an appeal by the husband against relationship property orders made by the High Court. The parties, who were formerly married and had emigrated from Oregon to New Zealand, had both initiated relationship property proceedings in Oregon and New Zealand respectively. The husband argued that the High Court was without jurisdiction or that the New Zealand judgment should be set aside due to forum non conveniens. He also claimed that the wife was estopped by the Oregon judgment, which he argued was a final decision on the merits, from pursuing relationship property proceedings in New Zealand. The Court found that the husband had submitted to New Zealand jurisdiction by participating in the proceedings, and it was too late for him to protest. The Court also found that the Oregon judgment was procured by fraud, and thus could not found an estoppel. The appeal was dismissed, and the husband was ordered to pay costs.

Orders