Legal Research
Cases
Lobb v Ryan

Lobb v Ryan

Case [2023] NZHC 1297 29 May 2023

Equitable Contribution

Repayment of Debt

Qualifying Transaction

Substitute Legislation

Jurisdiction

Family Law

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-000441

[2023] NZHC 1297

BETWEEN
STUART JAMES LOBB

Plaintiff

AND

VERENA COLLEEN RYAN

Defendant

Hearing: 18 April 2023

Appearances:

K Kommu for the Plaintiff L Dixon for the Defendant

Judgment:

29 May 2023

JUDGMENT OF WALKER J

This judgment was delivered by me on 29 May 2023 at 4 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

LOBB v RYAN [2023] NZHC 1297 [29 May 2023]

[1] The issue before this Court concerns the scope and application of s 4 of the Property (Relationships) Act 1976 (the Act). Mr Lobb claims equitable contribution from his former wife, Ms Ryan. Ms Ryan argues that a claim to contribution (if any) must be made within the exclusive jurisdiction of the Family Court under the Act. She has filed a protest to jurisdiction. Mr Lobb’s application before the Court seeks to set aside Ms Ryan’s protest to jurisdiction. If I decline to set aside the protest, it follows that I must dismiss the proceeding.1

Background

[2] The parties were married. They separated on or around 29 October 2016. Their marriage was dissolved on 29 August 2019.

[3] During their marriage they entered into a loan agreement with Westpac for the purpose of buying a residential property (Westpac Property Loan). They were each jointly and severally liable for the full amount under the Westpac Property Loan which was secured by a mortgage over the acquired property. Subsequently, the parties settled a trust (Lothbury Trust). Both were trustees, along with the Public Trust. The property was transferred to the trustees. The security was re-registered but the trustees did not take over the principal liability for the Westpac Property Loan. That liability remained with the parties. The trustees entered into a Deed of Guarantee and Indemnity to Westpac in respect of Mr Lobb and Ms Ryan’s obligations under the Westpac Property Loan and acknowledged that the mortgage on the property secured the trustees’ liability under the Deed of Guarantee and Indemnity.

[4] There is no dispute that the Westpac Property Loan was a relationship debt until its repayment.

[5] Over the next decade or so, the credit limit under the Westpac Property Loan increased. Repayments were varied to interest only payments. On 25 February 2015, the Public Trust retired as trustee of the Lothbury Trust and was replaced by Lockhart Trustee Services No. 56 Ltd (Lockhart). The trustees of the Lothbury Trust provided

1 High Court Rules 2016, r 5.49.

a guarantee and indemnity to Westpac in relation to Mr Lobb and Ms Ryan’s obligations under the Westpac Property Loan.

[6] By late April or early May 2015, the Westpac lending facility had been restructured into a two-part facility of $150,000 and $1,100,000. On 22 May 2015, the mortgage was discharged and replaced with a new mortgage (Instrument 9977107.3) in favour of Westpac.

[7] Following separation and during his occupation of the property, Mr Lobb made…

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 [2023] NZHC 1297
Case: [2023] NZHC 1297
Decision Date: 29 May 2023

CaseChat Overview and Summary

Lobb v Ryan concerns a dispute between former spouses, Stuart James Lobb and Verena Colleen Ryan, over the repayment of a joint loan. The Property (Relationships) Act 1976 governs the distribution of assets following the dissolution of a marriage. Mr Lobb claims equitable contribution from Ms Ryan for his share of the loan repayment, while Ms Ryan argues that such claims must be brought under the Act in the Family Court. The court was tasked with determining the scope and application of section 4 of the Act, whether there is a qualifying transaction under the Act, and whether section 4(1) of the Act abolishes the doctrine of equitable contribution.

The court found that the Act does not preclude equitable claims between spouses but does apply to transactions between spouses in respect of property. The court held that Mr Lobb's claim for equitable contribution is a qualifying transaction under the Act and that the Act takes the place of the rules and principles of equitable contribution. The court held that the Family Court is the only court empowered to grant the remedy Mr Lobb seeks. Consequently, the High Court does not have jurisdiction to grant the equitable contribution remedy, and the proceeding was dismissed. Ms Ryan is entitled to costs on a 2B basis, and the parties are encouraged to agree on costs. If they cannot agree, they may file memoranda of no more than 3 pages including schedules no later than 14 working days after the date of this judgment.

Orders