Johnston v Brown - [2021] NZHC 1018

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2018-412-92

[2021] NZHC 1018

IN THE MATTER of the Where A Wha Kawe Family Trust

AND

IN THE MATTER

of the Trustee Act 1956

BETWEEN

TOBY GREGG JOHNSTON

Plaintiff/First Counterclaim Defendant

AND

JENNIFER EVA BROWN

First Defendant/Counterclaim Plaintiff

AND

NIGEL WARREN HUGHES

Second Defendant/Second Counterclaim Defendant

Hearing: (Determined on the Papers)

Counsel:

J I Taylor and J J Anson-Holland for the First Defendant and Counterclaim Plaintiff

T G Johnston - self-represented (Plaintiff/First Counterclaim Defendant)

Judgment:

7 May 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Costs)

This judgment was delivered by me on 7 May 2021 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 7 May 2021

JOHNSTON v BROWN [2021] NZHC 1018 [7 May 2021]

[1] This judgment concerns an application for costs against Mr Johnston arising from a judgment dated 15 March 2021 (the Stay Judgment).1

[2] The Stay Judgment concerned an application for a stay by Mr Johnston, along with other orders. The judgment sought to be stayed was an earlier judgment of mine dated 7 September 2020 (the Summary Judgment).2

[3] In the Summary Judgment, orders were made removing both Mr Johnston and Ms Brown as trustees from a family trust, appointing a new independent trustee and granting judgment to Ms Brown for a sum I held was payable to her by Mr Johnston arising from a settlement agreement reached at a settlement conference in the Family Court. The settlement conference took place in December 2018, with the agreement being recorded in an order of the Family Court Judge who chaired the conference. There was an issue between the parties as to the meaning of that agreement and more particularly, Mr Johnston’s position was that the Family Court order did not properly record the agreement reached.

[4] Mr Johnston’s defences were dismissed. Ms Brown was the successful party in that proceeding. Costs on a 2B basis were awarded in her favour.

[5] Mr Johnston appealed that decision and brought an application for a stay. The document prepared by Mr Johnston was called “Notice of request for stay whilst appeal processed”. That document, at para 3, set out the various orders sought by Mr Johnston pending the hearing of the appeal. The six applications made by Mr Johnston were as follows:

(a)that the Summary Judgment be stayed;

(b)that publication of the judgment on the internet be suspended;

(c)that an independent lawyer be appointed by the Court to represent the parties’ son;

1 Johnston v Brown [2021] NZHC 507.
2 Johnston v Brown [2020] NZHC 2298.

(d)that there be a prohibition placed on all parties, except Mr Johnston, from entering the property owned by the Family Trust in order to prevent the removal of Mr Johnston’s personal property (the Summary Judgment concerned in part the sale of the property);

(e)that there be a prohibition placed on any person entering onto the property for the purposes…

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 Johnston v Brown

Details

AGLC: Johnston v Brown [2021] NZHC 1018
Case: [2021] NZHC 1018
Decision Date: 7 May 2021

CaseChat Overview and Summary

In Johnston v Brown, the High Court of New Zealand Dunedin Registry dealt with a case concerning the Where A Wha Kawe Family Trust and orders made by the Court under the Trustee Act 1956. The primary parties involved in this proceeding were Toby Gregg Johnston, Jennifer Eva Brown, and Nigel Warren Hughes. The dispute arose from a series of judgments, including a Summary Judgment that removed Johnston and Brown as trustees and ordered a sale of trust property, and a subsequent Stay Judgment that addressed various applications by Johnston, including a request for a stay of the Summary Judgment pending an appeal. Brown opposed all of Johnston's applications and sought costs in relation to the Stay Judgment.

The legal issues before the Court included whether Brown was entitled to costs on a 2B basis for the Stay Judgment and, if so, whether an uplift on the costs was warranted due to the lack of merit in Johnston's applications and his failure to reasonably engage on the issue of the amount of money to be held pending the appeal. The Court considered whether Johnston's applications for a stay, prohibitions, and mediation lacked merit and whether his failure to engage on the proposed partial stay constituted a lack of reasonable justification.

In its reasoning, the Court found that all applications other than the stay application lacked merit. For instance, the applications for mediation, the appointment of counsel for the parties' child, the staying of publication, and exclusive occupation orders had no prospect of success. The Court also held that Johnston did not have reasonable justification for not engaging on the issue of the amount to be held pending the appeal. The Court found the proposed 25% uplift on 2B costs appropriate in the circumstances. Consequently, the Court awarded costs to Brown against Johnston in the sum of $7,020.62 plus disbursements of $110. The Court further directed that the costs award be paid to Brown from the funds otherwise payable to Johnston’s new Trust.

Orders