Lobb v Ryan - [2021] NZCA 224

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA135/2021
[2021] NZCA 224

BETWEEN	STUART JAMES LOBB Applicant
AND	VERENA COLLEEN RYAN First Respondent LOCKHART TRUSTEE SERVICES NO. 56 LIMITED Second Respondent

Court:	Gilbert and Courtney JJ
Counsel:	P A Fuscic for Applicant W M Patterson for First Respondent
Judgment: (On the papers)	2 June 2021 at 3 pm

JUDGMENT OF THE COURT

AThe application for leave to appeal is declined.
B The respondent is entitled to costs for a standard application for leave to appeal on a band A basis with the usual disbursements.

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REASONS OF THE COURT

(Given by Courtney J)

This is an application for leave to appeal an interlocutory decision of the High Court.[1] The substantive proceeding concerns a trust settled by Mr Lobb and his former wife, Ms Ryan. Following their separation, a dispute arose over the fate of the trust’s assets. Ms Ryan brought the proceeding seeking a declaration as to the construction of a clause providing for the resettlement of trust assets in the event of the couple separating. Mr Lobb applied for an order dismissing or staying the proceedings on the ground that the Court’s jurisdiction was excluded by a provision for the arbitration of disputes in the trust deed.[2] Associate Judge Smith dismissed the application.[3] Mr Lobb applied unsuccessfully to the High Court for leave to appeal.[4] Mr Lobb now applies to this Court for leave to appeal.
[1]Senior Courts Act 2016, s 56(3) and (5).
[2]High Court Rules 2016, r 5.49(3)
[3]Ryan v Lobb [2020] NZHC 3085 [High Court decision].
[4]Ryan v Lobb [2021] NZHC 496 [High Court leave decision].
The circumstances in which leave will be given to appeal an interlocutory decision are settled. [5] The threshold for leave is high: there must be an arguable error of law or fact; the asserted error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value; and the circumstances must warrant incurring further delay. The ultimate question is whether the interests of justice are served by granting leave.

Background

[5]Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [9]–[14], cited with approval in Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].

Mr Lobb and Ms Ryan settled the Lothbury Trust (the Trust) in 2005. The trust deed made express provision for the breakdown of their relationship; cl 2.5 provided for the resettlement of trust assets in the event of separation or dissolution of the marriage:
2.5Resettlement of Trust
…
(3) If the Settlors separate (or their marriage is legally dissolved), either settlor may give the Trustees written notice requiring them to resettle (on new Trusts acceptable to the Settlor who has given notice) such part of the Trust assets as the Trustees consider fair and equitable having regard to the respective contributions of the Settlors (whether by gifting, inheritance or otherwise) to…

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 224
Case: [2021] NZCA 224
Decision Date: 2 June 2021 at 3 pm

CaseChat Overview and Summary

Stuart James Lobb has applied for leave to appeal an interlocutory decision of the High Court in the matter of a trust settled by him and his former wife, Verena Colleen Ryan. Ms Ryan brought the substantive proceeding seeking a declaration as to the construction of a clause providing for the resettlement of trust assets in the event of the couple separating. Mr Lobb applied for an order dismissing or staying the proceedings on the ground that the Court’s jurisdiction was excluded by a provision for the arbitration of disputes in the trust deed. Associate Judge Smith dismissed the application and the High Court refused leave to appeal. Mr Lobb now applies to this Court for leave to appeal. The appeal is governed by the principle that leave to appeal an interlocutory decision will be granted only in exceptional circumstances. The applicant must show that there is an arguable error of law or fact; the asserted error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value; and the circumstances must warrant incurring further delay. The ultimate question is whether the interests of justice are served by granting leave. This Court declined to grant leave to appeal. The application for leave to appeal is declined. The respondent is entitled to costs for a standard application for leave to appeal on a band A basis with the usual disbursements.

Orders