Johnson v Johnson - [2016] NZHC 1606

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-003004 [2016] NZHC 1606

IN THE MATTER of the Property (Relationships) Act 1976

BETWEEN

TAMARIE ELLIS JOHNSON Applicant

AND

RICHARD OWEN JOHNSON Respondent

Hearing: 8 July 2016

Counsel:

RC Knight, TA Chubb and TM Kelly for Applicant
RJ Hooker for Respondent

Judgment:

15 July 2016

JUDGMENT OF ASHER J (final judgment making orders)

This judgment was delivered by me on Friday, 15 July 2016 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Martelli McKegg, Auckland.
Vallant Hooker & Partners, Auckland. RC Knight, Auckland.
TA Chubb, Auckland.
TM Kelly, Auckland.

JOHNSON v JOHNSON [2016] NZHC 1606 [15 July 2016]

Introduction

[1] On 4 May 2016 I delivered a judgment in this relationship property case. I

directed at the end:1

Findings have been made on the key issues of disagreement and the proceeding is adjourned for a further hearing for the making of precise consequential orders as to payment and vesting giving effect to the judgment.

[2] I have now received further submissions and there has been a short hearing. There are three issues to be determined.

(a) Whether Mr Johnson should be ordered that to pay Ms Ellis any sum of money, given that the majority of assets are out of the jurisdiction. Also the related issue of the currency in which any orders are made, and whether there is to be any offset;

(b)Whether interest is payable on any sum ordered to be paid, and if so at what rate; and

(c) Costs.

[3] I record that Mr Hooker for Mr Johnson has complained about Ms Ellis’ submissions being filed approximately one day late for this hearing. He does not claim any prejudice. It is ironic that Mr Johnson should complain of late filing for reasons that I set out later. I also note that at the time Mr Knight filed his submissions on behalf of Ms Ellis, Mr Hooker was indicating that he might well not be briefed for the hearing. The default is minor, and given the lack of prejudice I do not accept the objection.

The sum to be paid

Jurisdiction

[4] Mr Hooker objects to the making of any order on the basis that it takes into account overseas assets, and would be without jurisdiction.

[5] Under s 33(3)(i) of the Property (Relationships) Act 1976 (the Act), the Court has the power to order payment of a sum of money by one spouse or partner to the other. Under s 7, the Act applies to moveable property that is situated in New Zealand or elsewhere. There are no restrictions on orders for the payment of a sum of money, if under s 33(1) it is necessary or expedient to give effect or better effect to any order made under the provisions of ss 25–32. The fact that the money is overseas or even if Mr Johnson has placed it out of his control, cannot affect that jurisdiction.

[6] I have…

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 [2016] NZHC 1606
Case: [2016] NZHC 1606
Decision Date: 15 July 2016

CaseChat Overview and Summary

The case of Johnson v Johnson involves a dispute between Tamarie Ellis Johnson and Richard Owen Johnson, heard by Asher J in the High Court of New Zealand. The main issues before the court were whether Richard should be ordered to pay Tamarie any sum of money, the currency in which any orders should be made, and whether there should be any offset. The court also needed to decide whether interest is payable on any sum ordered to be paid, and if so, at what rate. Finally, the court had to determine the costs associated with the proceedings.

Asher J found that the court had jurisdiction to order payment of a sum of money by one spouse or partner to the other, as per section 33(3)(i) of the Property (Relationships) Act 1976. The court ruled that Richard should pay Tamarie the sum of NZ$169,215.22, and that the payment should be made in New Zealand dollars. The court rejected Richard's proposal for cross-payments in different currencies, as it would have given him a strategic advantage. Instead, the court ordered a set-off calculation, as required by rule 11.23 of the High Court Rules.

The court also ruled that interest should be paid on the sum owed by Richard to Tamarie, at the New Zealand average annual bank term deposit rates from 1 March 2011 to the date of the judgment. The court rejected Richard's argument that he should not pay interest, as he had taken the money out of Tamarie's control and deprived her of its use.

Finally, the court determined that costs should follow the event, and ordered Richard to pay Tamarie's costs on a 2B scale, with a 50 per cent uplift for all discovery attendances. The court rejected Richard's arguments that the District Court Rules should apply, that Tamarie's failure to apply for further and better discovery should limit her costs claims, and that category A costs should apply to the hearing. The court also rejected Richard's argument that Tamarie should not be awarded costs for second counsel. The court awarded Tamarie costs of $5,000 in respect of the costs issues, and ordered Richard to pay Tamarie's disbursements, with one adjustment in the amount payable for the expert Mr Davis.

Orders