Johnston v Brown - [2021] NZHC 507

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2018-412-92

[2021] NZHC 507

IN THE MATTER of the Where A Wha Kawe Family Trust

AND

IN THE MATTER

of an application for a stay of proceeding pending appeal to the Court of Appeal pursuant to r 12 of the Court of Appeal (Civil) Rules 2005

BETWEEN

TOBY GREGG JOHNSTON

Plaintiff/First Counterclaim Defendant

AND

JENNIFER EVA BROWN

First Defendant/First Counterclaim Plaintiff

AND

NIGEL WARREN HUGHES

Second Defendant/Second Counterclaim Defendant

Hearing:
2 March 2021

(By way of telephone hearing)

Counsel:

T G Johnston – self represented

J I Taylor and J J Anson-Holland for the First Defendant A V Foote and S Caradus for the Second Defendant

Judgment:

15 March 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER

(in respect of application for stay and enforcement and other orders)

This judgment was delivered by me on 15 March 2021 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 15 March 2021

JOHNSTON v BROWN [2021] NZHC 507 [15 March 2021]

[1] This judgment concerns a number of applications made by Mr Johnston whose primary application is to stay enforcement of my judgment of 7 September 2020 (the September Judgment).1 Along with the stay, Mr Johnston seeks the following additional orders:

(a)an order staying any publication of the September Judgment;

(b)an order requiring the parties to attend mediation;

(c)an order appointing counsel to represent the child of Mr Johnston and Ms Brown, the child being a beneficiary of the Trust in issue in this proceeding;

(d)an order granting Mr Johnston exclusive possession of the property at 19 Bevan Place, Wanaka (the Wanaka property); and

(e)an order prohibiting any person entering the property for the purposes of pre-sale or marketing activities.

The Judgment subject to appeal

[2] Mr Johnston and Ms Brown were a couple and they moved to Wanaka in September 2009. They settled a Family Trust on 11 February 2008 and as trustees purchased the Wanaka property in March 2012.

[3] The second defendant, Mr Hughes, is the professional trustee of the family trust.

[4]Mr Johnston and Ms Brown separated in September 2016.

[5] The September Judgment largely concerned a settlement agreement Ms Brown said was reached at a settlement conference in the Family Court on 11 December 2018. Judge Farnan, who chaired the conference, recorded in a Minute at the end of the

1 Johnston v Brown [2020] NZHC 2298.

conference: “Agreement reached. Counsel will file joint consent memorandum by Friday 5.00pm and to be referred to me in chambers.”

[6] Ms Brown’s counsel then prepared a draft joint memorandum seeking consent orders. However, the evidence was Mr Johnston declined to sign the consent memorandum as he wished to have parenting issues addressed at the same time.

[7] As Mr Johnston did not agree to sign the memorandum, Ms Brown’s counsel filed a memorandum with the Court explaining why an order was not sought on a joint basis and…

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 507
Case: [2021] NZHC 507
Decision Date: 15 March 2021

CaseChat Overview and Summary

This judgment pertains to an application for a stay of proceedings pending appeal to the Court of Appeal, brought by Toby Gregg Johnston against Jennifer Eva Brown. The case revolves around the Where A Wha Kawe Family Trust, which the parties established in 2008, and the property located at 19 Bevan Place, Wanaka, which they purchased in 2012. The parties separated in 2016, leading to a Family Court proceeding where an order was made concerning the property's sale and distribution of its proceeds. Mr Johnston seeks a stay of enforcement of this judgment, along with several additional orders. The court must decide whether to grant a stay of enforcement pending appeal, considering factors such as the balance of convenience, the strength of the appeal, and the potential impact on third parties.

The court considered the grounds for appeal, which include the claim that the consent order was improperly obtained, and that the court failed to consider or assess family violence matters. The court found that the appeal grounds were not particularly strong and that the key issue was the division of the sale proceeds. The court also considered the potential impact on third parties, including the parties' child, and the overall balance of convenience. The court found that the balance of convenience favoured granting a stay of enforcement pending appeal, as it would not render the appeal nugatory and would not cause significant prejudice to either party.

The court granted the application for a stay of enforcement only in part, staying the order concerning the division of the net proceeds of sale following the sale of the Wanaka property. The net proceeds of sale are to be held by the current trustees on an interest-bearing deposit, pending the determination of the appeal or agreement between the parties. The court also ordered Mr Johnston to vacate the property no later than 5:00 pm on 31 March 2021 and remove all chattels to which he claims entitlement within the same time period. The remaining applications, such as the appointment of counsel for the parties' child and exclusive occupation of the Wanaka property, were dismissed. Costs are reserved.

The final orders include the stay of enforcement of the judgment concerning the division of the net proceeds of sale, the requirement for Mr Johnston to vacate the property by 5:00 pm on 31 March 2021, and the dismissal of the remaining applications. The court's decision was based on the balance of convenience and the potential impact on third parties, as well as the strength of the appeal. The court found that granting a stay of enforcement was in the best interest of all parties involved.

Orders