Johnson v Johnson - [2024] NZHC 1742

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2023-454-072

[2024] NZHC 1742

BETWEEN
HENRY JOHNSON

Appellant

AND

DONNICE DENISE JOHNSON

Respondent

Hearing: 27 June 2024

Appearances:

G A Paine for Appellant

C S W Leathart for Respondent

Judgment:

27 June 2024

JUDGMENT OF CHURCHMAN J

Introduction

[1] On 25 July 2023, Judge Hickman sitting in the Family Court granted an extension of time under s 24(2) of the Property (Relationships) Act 1976 (PRA) for the respondent to file her relationship property proceedings despite a delay of 18 years.1

[2]The appellant now appeals that decision.

Background

[3] The parties married in 1990 and purchased their family home in Palmerston North in 2000. Their daughter Bronte was born in May 2000. The property was registered in the joint names of the parties, and both parties names were listed on the

1 Johnson v Johnson [2023] NZFC 7452.

JOHNSON v JOHNSON [2024] NZHC 1742 [27 June 2024]

mortgage. The joint ownership was converted to a tenancy in common in November 2020.

[4] The parties separated in November 2002, with the respondent contending that she left the marriage and moved to Amarillo, Texas due to psychological abuse from the appellant. In 2004 their marriage was dissolved by a Texas Court. The appellant asserts he was unaware of the divorce, as he states he was not in a fit psychological state to comprehend the documents.

[5] From 2002 to around 2011, the parties had sporadic correspondence regarding resolution of the joint ownership of the family home.

[6] In November 2020, following advice from her new lawyers, the respondent severed the joint tenancy to the home. Her evidence is that until that point she did not understand the difference between tenants in common and joint tenants and wanted to protect her daughter’s interest in case she predeceased the appellant.

[7] On 16 May 2022, the appellant emailed the respondent asking whether she would agree if he were to set up a family trust. On 22 August 2022, the appellant’s second wife, Ms Sharifi, filed an application in the Family Court seeking orders as to ownership and division of relationship property. The respondent was named as the second respondent in Ms Sharifi’s proceedings.

[8] On 9 October 2022, the respondent filed an affidavit of assets and liabilities and a narrative affidavit in response to the proceedings filed by Ms Sharifi.

[9] On 20 March 2023, the respondent applied for orders in respect of the division of relationship property and for leave to file her application out of time.

District Court Decision

[10] In her decision, the Judge stated that although it had been 18 years since the application for determination of relationship property should have been made, both parties were aware that the issue of their joint ownership of the former matrimonial home still needed to be resolved.

[11] The Judge found that the respondent’s evidence that she had attempted to resolve matters, but the appellant…

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 [2024] NZHC 1742
Case: [2024] NZHC 1742
Decision Date: 27 June 2024

CaseChat Overview and Summary

Johnson v Johnson was an appeal by Henry Johnson against a decision of Judge Hickman of the Family Court which granted the respondent, Donnice Denise Johnson, leave to file relationship property proceedings out of time. The appeal was heard by Churchman J and was dismissed. The Family Court had found that it was reasonable to allow the respondent to bring proceedings 18 years after the relevant period for filing them had passed. The appellant argued that the Family Court had made an error in doing so, and that the delay was unreasonable. The appellant also argued that the Family Court had not properly considered the Texas divorce proceedings and had erred in its findings on the evidence. The appeal court found that the Family Court had not made an error of law or principle, had considered all relevant factors and had come to a decision that was not plainly wrong. The appeal court also found that the Family Court had properly considered the Texas divorce proceedings and the evidence. The appeal court held that it was in the interests of justice for the respondent to be able to bring her proceedings, and dismissed the appeal. The parties were invited to settle the costs of the appeal, with a direction for costs to be determined if they were unable to do so within 14 days.

Orders