Johnson v Johnson - [2021] NZHC 2339

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-000144

[2021] NZHC 2339

BETWEEN
BRYAN EWART JOHNSON, DAVID HOUGHTON WALE AND

CHRISTOPHER DAN WILLIAM AS TRUSTEES OF THE ABEL TRUST
Plaintiffs

AND

CRAIG BRYAN JOHNSON AND MARIA BERNADETTE JOHNSON

First Defendants

AND

LITTLE SCHOOL LIMITED

Second Defendant

AND

JOHNSON PRESCHOOL LIMITED

Third Defendant

Hearing:
Memoranda Received From:

(Determined on the papers)

1.     Counsel for C B Johnson – 26 August 2021

2.     Counsel for M B Johnson – 31 August 2021

3.     Counsel for C B Johnson – 6 September 2021

4.     Counsel for C B Johnson – 8 September 2021

5.     Counsel for M B Johnson – 10 September 2021

Judgment:

14 September 2021

JUDGMENT OF GENDALL J

(Determined on the papers)

[1] This judgment (originally dated and to be released on 8 September 2021) is to be read with the Addendum commencing from [28] below which is to form part of the judgment.

JOHNSON v JOHNSON [2021] NZHC 2339 [14 September 2021]

[2] On 8 July 2021, Ms M B Johnson (Maria) filed an application for leave to appeal to the Court of Appeal a judgment I issued in this proceeding dated 10 June 2021. She also sought an order to adduce new evidence.

[3] On 22 July 2021, counsel for Mr C B Johnson (Craig) filed a notice of opposition to Maria’s application.

[4] Counsel for the respective parties have now filed memoranda of submissions with respect to this application as follows:

(a)Memorandum from counsel for Craig opposing the application dated 26 August 2021;

(b)Memorandum from counsel for Maria in support of the application dated 31 August 2021;

(c)Memorandum by way of reply from counsel for Craig dated 6 September 2021.

[5] Counsel confirm that the parties have agreed the application for leave is to be determined on the papers. I now do so.

[6] At para [1](c) of her application Maria has applied to this Court for a grant of leave to adduce evidence in an affidavit from her dated 8 July 2021. I deal with this aspect first.

[7] Maria’s 8 July 2021 affidavit, according to Craig’s counsel, appears to be almost the same affidavit with annexures (which in all total 170 pages) Mr Wigley, her counsel, attempted to file and serve on the day of the hearing of the matter which is the subject of my judgment, 10 May 2021. I refused to admit the affidavit at that late stage and it was not read.

[8] Craig’s position is that this affidavit is neither fresh, cogent or reliable and also that it is plainly an abuse of process that the affidavit has reappeared at this stage.

[9] The matter before me is principally an application for leave to appeal to the Court of Appeal my 10 June 2021 judgment. As such, I am satisfied it is not appropriate for leave to be granted here to Maria to adduce this “new” evidence given that an earlier…

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 [2021] NZHC 2339
Case: [2021] NZHC 2339
Decision Date: 14 September 2021

CaseChat Overview and Summary

The High Court of New Zealand, Wellington Registry, considered an application for leave to appeal a previous judgment and to adduce new evidence. The applicants, Maria Bernadette Johnson and Craig Bryan Johnson, sought to appeal a decision rendered on 10 June 2021. Maria also sought permission to present new evidence in the form of an affidavit dated 8 July 2021, which had previously been refused admission.

The legal issues before the court were whether the application for leave to appeal met the necessary criteria, and if the new evidence should be admitted. The criteria for granting leave to appeal include identifying an arguable error of law or fact, the importance of the error, the potential for further delay, and whether the interests of justice would be served.

The court reasoned that the application did not meet the high threshold required for leave to appeal, as no significant arguable error was identified in the previous judgment. The matters raised were largely peripheral to the main property dispute, and the interests of justice were best served by proceeding to the scheduled trial date. The court also found that the new evidence proposed by Maria was not sufficiently relevant or reliable to warrant its admission.

Ultimately, the court denied leave to appeal and refused the application to adduce new evidence. The court awarded costs to Craig Bryan Johnson for the opposition to the application.

Orders