Lobb v Ryan - [2021] NZCA 425

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA277/2020
[2021] NZCA 425

BETWEEN	STUART JAMES LOBB Applicant
AND	VERENA COLLEEN RYAN Respondent

Court:	Miller and Cooper JJ
Counsel:	MRT Colthart for Applicant P K Cobcroft for Respondent
Judgment: (On the papers)	31 August 2021 at 3.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time for leave to appeal the refusal to make occupation and ancillary orders is declined.
B The application for leave to appeal the refusal to make maintenance orders is declined.
CThe applicant must pay costs for a standard application, with disbursements on both applications, for a standard application on a band A basis.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

This judgment responds to two applications for leave to appeal.

The judgments under appeal

On 28 June 2019, Judge Burns dismissed two applications by Mr Lobb. He declined Mr Lobb’s application for occupation of an Orakei Rd property and ancillary orders for lack of jurisdiction under the Property (Relationships) Act 1976 (the PRA).[1] In this application Mr Lobb also requested that the Court amend a Westpac home loan agreement for oppression, but this was declined for want of jurisdiction under the Credit Contracts and Consumer Finance Act 2003 (the CCCFA).[2]
[1]Lobb v Ryan [2019] NZFC 5249 [Occupation judgment]. The ancillary orders sought were: a furniture order, an order requiring Ms Ryan to contribute toward the parties’ joint debts, and an order requiring Ms Ryan return the appellant’s financial and personal documents and records.
[2]At [8].
Judge Burns also declined Mr Lobb’s further application for spousal maintenance under the Family Proceedings Act 1980 (FPA) primarily on the basis that Mr Lobb earns sufficient income and Ms Ryan could not afford it.[3] In that judgment he also commented that Mr Lobb had chosen the wrong jurisdiction in applying for maintenance under the FPA when he really sought contributions to alleged relationship liabilities (relevant under the PRA).[4]
[3]Lobb v Ryan [2019] NZFC 5254 [Maintenance judgment].
[4]At [9].
On 30 April 2020 in the High Court at Auckland, Powell J dismissed Mr Lobb’s appeal against the two judgments of Judge Burns.[5] He held that although the basis on which the Family Court found it had no jurisdiction to make an occupation order was erroneous, that Court did lack jurisdiction to make the order under the PRA because the Orakei Rd property (owned by a trust) was not prima facie relationship property.[6] There was similarly no jurisdiction to make the ancillary orders sought (for various furniture and payments from Ms Ryan) because they necessarily attached to the making of an occupation order.[7] In obiter the Judge also said he would have declined to make an occupation order even if there had been jurisdiction.[8]
[5]Lobb v Ryan [2020] NZHC 834 [Occupation and maintenance appeal].
[6]At [27]–[31].
[7]At [32].
[8]At [33].
Powell J further held that the Family Court indeed lacked jurisdiction to reopen the Westpac loan contract under…

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 Lobb v Ryan

Details

AGLC: Lobb v Ryan [2021] NZCA 425
Case: [2021] NZCA 425
Decision Date: 31 August 2021 at 3.30 pm

CaseChat Overview and Summary

Stuart James Lobb applied to the Court of Appeal of New Zealand for leave to appeal the High Court's refusal to grant him an occupation order and ancillary orders, as well as the refusal to grant him spousal maintenance. The Court of Appeal declined both applications. The Court found that the applicant, Mr Lobb, had made tactical use of maintenance and occupation orders to advance his position in a property dispute. The Court held that the prospects of ultimate success were too low to warrant leave.

The legal issues the Court had to decide were whether the property in question was "relationship property" under the Property (Relationships) Act 1976 (PRA) and whether the Family Court had jurisdiction to grant an occupation order and ancillary orders. In addition, the Court had to determine whether the Family Court properly exercised its discretion to refuse spousal maintenance under the Family Proceedings Act 1980 (FPA).

The Court of Appeal found that the property in question was not relationship property because the right of occupation was given to the parties in their capacity as discretionary beneficiaries, and the trustees could alter the right at any time. The Court also held that even if there were jurisdiction to make an occupation order, it still would have declined to do so in this case for two reasons: the order would be unnecessary given Mr Lobb is currently residing at 23 Orakei Road, and the Court preferred not to make orders that would interfere with other decision-makers and proceedings. In respect of maintenance, the Court of Appeal found that the Family Court properly exercised its discretion to refuse spousal maintenance because Mr Lobb was using an application for spousal maintenance to reside at the Orakei Rd property, the application sought money well beyond that needed to meet Mr Lobb’s reasonable needs, and there was insufficient information before the Court to be satisfied Mr Lobb is unable to meet his reasonable needs.

Orders