Johnston v Brown

[2021] NZHC 2576

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2018-412-92

[2021] NZHC 2576

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 Plaintiff

Hearing:

(Determined on the Papers)

Counsel:

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

T G Johnston – self-represented Plaintiff/First Counterclaim Defendant

S Caradus and C M N Milne for Second Defendant/Second Counterclaim Plaintiff

Judgment:

29 September 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Lifting of stay)

[1]    The  background  to  this  proceeding  is  set  out  in  my  judgment   dated     7 September 2020 granting Ms Brown, the first defendant/counterclaim plaintiff, summary judgment on her counterclaim and dismissing Mr Johnston’s claim against

JOHNSTON v BROWN [2021] NZHC 2576 [29 September 2021]

Ms Brown.1 Mr Johnston appealed that decision and applied for a stay in a document called “Notice of request for stay whilst appeal processed”. That application sought the stay (and other orders) “whilst the appeal occurs”.

[2]    A partial stay was granted in a judgment released on 15 March 2021.2 The stay related to the division of the net proceeds of sale of a property then owned by the Family Trust in issue in the proceeding. I ordered that: “The net proceeds of sale are to be held by the current trustees on interest bearing deposit, pending the determination of the appeal or agreement between the parties.”3

[3]    On 29 March 2021, the Court of Appeal issued a “Notice of Result” document bearing the seal of the Court of Appeal. It recorded that:

Pursuant to Rule 43 of the Court of Appeal (Civil) Rules 2005, the above appeal, filed on the 12 October 2020, has expired and is now deemed abandoned as at 29th March 2021.

[4]    By memorandum dated 24 September 2021, counsel for the trustees noted that while they did not consider it strictly necessary to seek an order lifting the stay, they sought confirmation the stay no longer applies given the abandonment of the appeal.

[5]    The terms upon which the stay was sought and granted are clear. The stay as sought was to remain in place while the appeal was underway. The appeal was deemed abandoned six months ago. It follows that the stay lapsed at that point and I so confirm.

[6]    The sale of the Family Trust property settled on 20 August 2021 and the new trustees are now able to make a distribution, subject to adjustments that have previously been ordered.

[7]    Mr Johnston, by email dated 24 September 2021, opposes the lifting of the stay.

1      Johnson v Brown [2020] NZHC 2298.

2      Johnston v Brown [2021] NZHC 507.

3      Johnston v Brown, above n 2, at [49].

[8]    Firstly, he objects to me dealing with the application,  asserting that I have     a conflict of interest. I decline to recuse myself. That Mr Johnston is dissatisfied with my decisions is not grounds for recusal. He also refers to my failure to recognise “family violence issues” but, as I have previously pointed out, such were not raised in the summary judgment hearing.

[9]    Mr Johnston says he rejects that the appeal has been abandoned. However, that submission is not open to him. The Notice from the Court of Appeal is conclusive in that regard. The appeal came to an end six months ago.

[10]   The trustees intend to make a distribution which Mr Johnston does not agree with. After the adjustments have been made that were ordered by the Court, the proposed distribution is 50/50.

[11]   Mr Johnston sought that, after the sale of Family Trust’s property, the proceeds be distributed 50/50. The adjustments I have referred to are those that have been ordered in the proceedings. The principal adjustment was the subject of the summary judgment decision which is now a final decision.

[12]   In short, as the appeal is deemed abandoned, the High Court proceeding is at an end. The trustees have, only out of an abundance of caution, sought confirmation that the stay has lapsed.

[13]   I confirm the stay lapsed when the Notice of Result issued from the Court of Appeal. Subject to the adjustments I have directed, it is now for the trustees to decide what distributions to make.

Associate Judge Lester

Solicitors:

Wynn Williams, Christchurch Duncan Cotterill, Christchurch Copy to:

Mr T B Johnston (self-represented)