Johnson v Johnson - [2011] NZCA 171

IN THE COURT OF APPEAL OF NEW ZEALAND

CA854/2010
[2011] NZCA 171

BETWEEN LINDA CLARE JOHNSON
Applicant

AND CLIVE ASHLEY JOHNSON
Respondent

Hearing: 19 April 2011

Court: Ellen France, Randerson and Wild JJ

Counsel: S Abdale for Applicant
D R I Gay for Respondent

Judgment: 4 May 2011 at 11.30 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is dismissed.

BThe applicant must pay the respondent costs for a standard application on a band A basis together with usual disbursements.

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REASONS OF THE COURT

(Given by Randerson J)

Introduction

The applicant seeks an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005 to appeal from a decision of Keane J delivered on 13 September 2007.[1]
[1] A v C HC Auckland CIV 2003-404-7204, 13 September 2007.
The judgment was part of a long-running dispute between the parties following their separation in 1998. The judgment in question related to the value, for relationship property purposes, of the shares in a company (AHL). Keane J held that the shares were valueless and ordered the applicant to pay to the respondent costs according to the 2B scale in the High Court Rules. The Judge also directed that the parties bear equally the costs of Mr J C Hagen who had been appointed by the Court to value the shares under s 38 of the Property (Relationships) Act 1976.
The applicant seeks to challenge on appeal both the valuation and the costs orders. The application for leave is opposed by the respondent.

Background

A Family Court Judge made an order dividing the relationship property of the parties on 14 May 2003. The AHL shares were not included in those orders but, on 20 November 2003, the Family Court Judge divided the shares equally between the parties. This decision was set aside by Winkelmann J on appeal on 29 September 2004.[2] Winkelmann J also ordered that the shares be valued under s 38.
[2] Johnson v Johnson HC Auckland CIV-2003-404-7204, 29 September 2004.
Mr J C Hagen, an experienced chartered accountant, was appointed to undertake the valuation. He concluded the shares were valueless. The applicant disputed the valuation and instructed her own expert who expressed the opinion that the shares were worth at least $400,000. The principal issue before Keane J was whether an intra-company debt retained the value ascribed to it in the company’s accounts. This in turn depended on whether a sum of $325,000 received by the respondent on the sale of a company asset had been expended, as the respondent deposed, to meet AHL’s liabilities.
The Judge accepted the respondent’s evidence on this point. In consequence, the Judge accepted Mr Hagen’s opinion that the intra-company debt was of negligible value and the shares in AHL were worthless.
Following the delivery of Keane J’s judgment on 13 September 2007, the time for filing an appeal expired on 11 October 2007. The applicant has deposed that she intended to proceed with…

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 [2011] NZCA 171
Case: [2011] NZCA 171
Decision Date: 4 May 2011

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application for an extension of time to appeal in the matter of Johnson v Johnson. The applicant, Linda Clare Johnson, sought to appeal a decision made by Keane J on 13 September 2007 regarding the valuation of shares in a company (AHL) for relationship property purposes. The respondent, Clive Ashley Johnson, opposed the application. The central issue before the Court was whether the applicant should be granted an extension of time to appeal the decision of Keane J.

The Court considered the principles governing extensions of time to appeal, noting that the discretion to extend time is broad and flexible but should not be exercised lightly. The Court must consider whether granting an extension is in the interests of justice, taking into account factors such as the length of the delay, the reasons for it, the parties' conduct, the extent of prejudice caused by the delay, the merits of the appeal, and whether the appeal raises any questions of public importance. The Court found that the applicant's delay was inordinate and not adequately explained, and that the proposed appeal had no reasonable prospect of success. The Court also concluded that the respondent would suffer prejudice if the application was granted.

The Court of Appeal dismissed the application for an extension of time to appeal and ordered the applicant to pay the respondent's costs for a standard application on a band A basis together with usual disbursements. The Court found that the delay in filing the application was excessive and not sufficiently justified, and that the proposed appeal was unlikely to succeed. The Court also noted that the respondent would be prejudiced if the application was granted, as they would be required to incur additional costs and inconvenience for an appeal with no realistic chance of success. The Court therefore denied the application and ordered the applicant to pay the respondent's costs.

Orders