Johnson v Johnson [2021] NZCA 673 (10 December 2021)

Last Updated: 14 December 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA390/2021 [2021] NZCA 673

	BETWEEN	BONNIE JOHNSON Applicant
	AND	DONNA MARIE JOHNSON AS EXECUTOR OF THE ESTATE OF REGINALD CHARLES JOHNSON Respondent

Court:	Gilbert and Goddard JJ
Counsel:	Applicant in person K G Davenport QC and A E Isaacs for Respondent
Judgment: (On the papers)	10 December 2021 at 12 pm

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is granted.
2. We direct the Registrar to arrange a telephone conference with the parties.

100. We make no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

• [1] Bonnie and Donna Johnson are the two surviving adult daughters of Reginald Johnson, who died in September 2003.^[1] Probate was granted in January 2004 and Donna is now the sole remaining executor of her father’s estate. The estate has been distributed with the exception of some bare land at Stewart Street, Helensville (the property). It only came to light comparatively recently that this land formed part of the estate.^[2]
• [2] Donna wishes to sell the property and apply the proceeds to meet the estate’s debts (including outgoings which she has been meeting from her own resources) and distribute the balance to the residuary beneficiaries. However, Bonnie opposes any sale of the property. She claims the property is Māori land and does not form part of her father’s estate. She says she has been authorised by the customary owners to live there and did so for many years until recently in temporary structures she moved onto the property.
• [3] On 25 March 2021, Associate Judge Bell granted Donna’s application for summary judgment seeking an order for vacant possession of the property in her capacity as executor of the estate.^[3] In granting summary judgment, the Associate Judge concluded it was not reasonably arguable that the property was Māori customary land or Māori freehold land, as asserted by Bonnie.^[4] The title documents showed it was general land to which Donna had indefeasible title.^[5] It followed that Bonnie’s claimed occupation right sourced from the customary owners was not legally effective and could not defeat Donna’s claim.^[6] The order granted Donna “vacant possession of the property at 21 Stewart Street, Helensville, with effect from 1 July 2021” to allow Bonnie time to remove livestock and temporary structures from the property.^[7] However, Bonnie contends there is a serious question as to what land is correctly described as “21 Stewart Street” and who owns it.
• [4] Bonnie wishes to exercise her right of appeal against the judgment. She is unrepresented and says she mistakenly filed her appeal in the High Court. She now applies under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time to appeal. The application for an extension of time was filed on 19 May 2021.^[8] The delay was comparatively short, has been satisfactorily explained and has caused no material prejudice to the respondent. An extension of time should therefore be granted unless it can safely be concluded at this preliminary stage that the proposed appeal has no prospect of success.
• [5] Bonnie wishes to argue on appeal that the only property remaining in the estate comprises an area of approximately 200 m² and is separate from the land where her temporary structures were located. She says apart from this small area, the land at 21 Stewart Street is Māori land. Bonnie has filed various documents sourced from Archives New Zealand and the local council in support of her claim, including historical titles and plans. It is not easy to reconcile this information (some of which is incomplete and difficult to decipher) and relate it to whatever land correlates to the street address — 21 Stewart Street — the description of the land provided in the High Court possession order.
• [6] Bonnie may face considerable challenges with her appeal, but we do not consider it would be safe for us to conclude on the information available that it is clearly hopeless. For example, it is unclear what Part Lot 16 (which is said to comprise 21 Stewart Street) relates to exactly. The High Court judgment records that Lot 2 in DP82238 is 15 Stewart Street and that 21 Stewart Street is the property immediately adjoining it, but this is not easily reconciled on the evidence.^[9] If 21 Stewart Street is beyond the boundaries of Lot 2 then it would appear to form a portion of land which includes Māori land with the identifier ML 1581 — a title cannot be a hybrid of both Māori land and general land.^[10]
• [7] The High Court judgment also states that there is land beyond 21 Stewart Street under the record of title NA548/99 with an area of some 2,808 square meters.^[11] However that title seems to be a historical reference to NA773/194 which appears to include Lot 2 on DP82238. The position is further complicated by the fact that Donna only became aware of the existence of 21 Stewart Street as a result of a departmental dealing in 2010 which raises more potential questions about the exact boundaries of 21 Stewart Street. There may be arguable issues in relation to the identification of the land to which NA773/194 and DP82238 relate, and whether any Māori land has incorrectly been recently designated as general land under Part Lot 16 on NA773/194.
• [8] In all the circumstances, we consider the appropriate course in the interests of justice is to grant the extension of time to enable the appeal to be determined on its merits.
• [9] We strongly recommend that Bonnie seeks legal representation for the appeal. Any further evidence, not before the High Court, that Bonnie wishes to place before this Court must be presented in affidavits and be accompanied by an application for leave to adduce this evidence. The complex history of the land, and the possibility that some or all of the land known as 21 Stewart Street is Māori land, also raises questions about whether other parties should be served. We will direct the Registrar to convene a teleconference to consider these and any other matters required to ensure the appeal progresses efficiently. This may include consideration of whether counsel should be appointed to assist the Court (as to that possibility, we give no assurance).

Result

• [10] The application for an extension of time to appeal is granted.
• [11] The Registrar is directed to convene a telephone conference with the parties.
• [12] We make no order as to costs.

Solicitors:
Sellars & Co, Helensville for Respondent

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^[1] Reginald Johnson had eight children. Three predeceased him, one has since died, one is in a dementia ward and the other is not involved in this proceeding.

^[2] According to an affidavit of Donna Johnson affirmed on 18 December 2020, this information was discovered in June 2010 as a result of a departmental dealing made by Land Information New Zealand when the land was converted to Landonline.

^[3] Johnson v Johnson [2021] NZHC 624 [High Court judgment].

^[4] At [14]–[17].

^[5] At [18].

^[6] At [18].

^[7] At [26(a)].

^[8] An unsigned notice of appeal dated 13 April 2021 was filed in this Court on 29 April 2021. Registry informed the appellant that the notice was not compliant. On 19 May 2021 Registry informed the appellant that the notice of appeal was rejected and an application for an extension of time would need to be filed if the appellant wanted to proceed. An unsigned rule 29A application for an extension of time was received on 19 May 2021 followed by a signed application on 29 June 2021.

^[9] High Court judgment, above n 3, at [10].

^[10] Short v Stowers – Tumu Kaituna 14 Block (2018) 199 Waiariki MB 188 (199 WAR 188) at [32] citing Paikea – Otara 5D1 (2016) 140 Taitokerau MB 78 (140 TTK 78); Craig v Kira – Wainui 2F4D (2006) 7 Whangarei Appellate MB 1 (7 APWH 1) at [28]–[29]; and Management Committee of Mangatawa Papamoa Blocks – Lot 1 DPS 65413 (2018) 156 Waikato Maniapoto MB 77 (156 WMN 77).

^[11] High Court judgment, above n 3, at [10]–[11].