Johnson v Johnson

[2022] NZHC 465

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-119

[2022] NZHC 465

BETWEEN

C.B. JOHNSON First Plaintiff

JOHNSON PRESCHOOL LIMITED
Second Plaintiff

AND

M.B. JOHNSON Defendant

Hearing (by telephone):	14 March 2022
Counsel:	C M Stevens, T Mijatov and J S Trevella for Mr Johnson P F Dalkie for Ms Johnson
Judgment:	15 March 2022

JUDGMENT OF GWYN J

Solicitors:

DLA Piper, Wellington

McDonald Law Limited, Auckland

JOHNSON v JOHNSON [2022] NZHC 465 [15 March 2022]

[1]    On the evening of 11  March 2022, having heard from counsel for each of   Mr Johnson and Ms Johnson, I made interim orders in the following terms (the interim orders judgment):1

(a)An interim injunction requiring Ms Maria Bernadette Johnson to forthwith return all property belonging to Johnson Preschool Ltd that has been removed by her or on her behalf from the Kelburn property at 2, and/or 4 and or 6 Ngaio Road.

(b)An interim injunction prohibiting Ms Maria Bernadette Johnson from interfering in any way directly or indirectly from Mr Craig Johnson’s use of and access to the Kelburn property from Monday 14 March 2022 onwards.

(c)Consequential orders granting leave to use the affidavits from related proceedings as attached to the affidavit of Mr Craig Johnson in support of this application.

(d)Costs are reserved.

[2]    As I recorded at [9] of the interim orders judgment, counsel for Ms Johnson opposed the orders sought and raised a number of issues as to interpretation of the Consent Orders made on 8 December 2021, between the parties.

[3]    Although not recorded in my necessarily brief judgment, but as discussed with counsel, one of the issues in dispute between the parties was the meaning of cl 1.32(b) of the Consent Orders, and in particular what is encompassed in the phrase “any fixtures, fittings and chattels that are currently identified in the accounts of [Johnson Preschool Limited] (JPL)”.

[4]    Having heard from counsel and seen the evidence filed at that point, I was satisfied that the applicant had made out a serious question to be tried as to whether removal by Ms Johnson of items from the properties at 2, 4 and 6 Ngaio Road (the

1      Johnson v Johnson [2022] NZHC 447.

Kelburn properties) was in breach of cl 1.32 of the Consent Orders. I was satisfied also that the balance of convenience favoured the granting of the interim orders sought, in part because Mr Dalkie for Ms Johnson conceded that the interim orders were unlikely to cause prejudice to Ms Johnson that could not be remedied by damages.

[5]    I issued the interim orders judgment on the evening of Friday 11 March 2022 and the orders were sealed at that time. A copy of the interim orders judgment and the sealed orders were provided to counsel for both parties on the evening of 11 March 2022.

[6]    On the morning of 14 March 2022, counsel for Mr Johnson advised that, notwithstanding the interim orders judgment, Ms Johnson had not returned any items taken by her from the Kelburn property and had in fact removed further items from the property during the course of the intervening weekend.

[7]    On the morning of Monday 14 March, I received a further affidavit from    Mr Johnson together with a further affidavit from Ms Johnson and an affidavit on her behalf from Susan Yee. I have also received memoranda from counsel for both parties.

[8]    The memorandum filed by Mr Dalkie and Ms Watson on behalf of Ms Johnson asserts the position that the interim orders judgment did not require Ms Johnson to return all of the property taken by her from the Kelburn properties, pending an inquiry into who owns  what, but  rather simply to return all  property belonging to JPL.    Ms Johnson states in her (unsworn) affidavit of 14 March 2022 that all of the property removed by her from the Kelburn property belongs to Little Schools Ltd (LSL). It appears that Ms Johnson proceeded to act on this unilateral and disputed interpretation of what is encompassed by cl 1.32(b) of the Consent Orders, notwithstanding the interim orders judgment.

[9]    As I discussed with Mr Dalkie at the further hearing on 14 March 2022, the proper course for the respondent to have taken, if the meaning or intent of the interim orders judgment was unclear, was to come back to the Court to seek clarification. Acting unilaterally when it was plain from the hearing that the very issue in dispute was the ownership of the property put Mr Dalkie at risk of breaching his professional

obligations and his client, Ms Johnson, at risk of enforcement action under the Contempt of Court Act 2009.

[10]   For Mr Johnson, Mr Stevens and Mr Mijatov now seek a variation of the interim orders made on 11 March 2022, to put beyond doubt (if there was any doubt) what is required of Ms Johnson.

[11]   Having heard further from counsel and considered the further affidavits filed, I remain satisfied that there is a serious question to be tried as to ownership of the items removed by Ms Johnson from the Kelburn property and whether removal of the items is a breach of cl 1.32(b) of the Consent Orders, and that the balance of convenience favours the making of interim orders. Accordingly, I make an order varying order 3.1 of the interim orders judgment in the following terms:

(a)An interim injunction requiring Ms Maria Bernadette Johnson to arrange forthwith, and no later than 15 March 2022 at 4.00 pm, the return to the same address of all fixtures, fittings and chattels, removed from 2 and/or 4 and/or 6 Ngaio Road Kelburn Wellington between Monday 7 March 2022 and Sunday 13 March 2022 other than those specifically recorded in the depreciation schedule or otherwise recorded in the accounts of Little Schools Ltd and for the avoidance of doubt:

(i)This interim injunction does not prevent Ms Johnson from arranging forthwith the return of property through a third party such as a commercial mover or transport company; but

(ii)Neither Ms Johnson nor her partner Andrew Hollis or persons connected with them is permitted personally to enter the Kelburn properties or their vicinity; and

(iii)Leave is reserved to Ms Johnson to apply to the Court prior to

4.00 pm on 15 March 2022 seeking specified further time to complete the return of the property if compliance is impossible

by 4.00 pm on 15 March 2022 but if leave is sought Ms Johnson must nevertheless comply as fully as possible with the order at

5.1 in the meantime; and

(iv)Leave is reserved to Ms Johnson to seek to further vary the orders so that excepted from the property that must be returned under order 5.1 are the items (with photographs) to be specified by Ms Johnson describing the three-dimensional objects in the nature of educational toys over which Ms Johnson asserts intellectual property rights; and

(v)Orders 3.2, 3.3 and 3.4 remain in force.

Substantive hearing

[12]   Mr Johnson’s substantive application is to be heard before me on 14 June 2022. Counsel are to confer and file a memorandum setting out an agreed timetable for the filing and service of any further evidence and submissions for the hearing.

Gwyn J