Lobb v Ryan
[2020] NZHC 2031
•11 August 2020
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-1595
[2020] NZHC 2031
UNDER Family Proceedings Act 1980, Property (Relationships) Act 1976 and Credit Contracts and Consumer Finance Act 2003 BETWEEN
STUART JAMES LOBB
Appellant
AND
VERENA COLLEEN RYAN
Respondent
On the papers: At Auckland Judgment:
11 August 2020
JUDGMENT OF POWELL J
[Application for leave to appeal]
This judgment was delivered by me on 11 August 2020 at 4 pm pursuant to R 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
LOBB v RYAN [2020] NZHC 2031 [11 August 2020]
[1] On 30 April 2020 I dismissed an appeal brought by Mr Lobb1 against two judgments of Judge Burns in the Family Court at Auckland.2 My judgment addressed Mr Lobb’s appeals in relation to the following issues:
(a)Mr Lobb’s application for spousal maintenance pursuant to the Family Proceedings Act 1980 (“the spousal maintenance issue”);
(b)Mr Lobb’s application for an occupation order in respect of 23 Orakei Road, together with ancillary orders pursuant to the Property Relationships Act 1976 (“the occupation and ancillary orders issue”); and
(c)Mr Lobb’s application to reopen a loan with Westpac Bank under the Credit Contracts and Consumer Finance Act 2003 (“the Credit Contracts Act issue”).
[2] Mr Lobb promptly filed an appeal against my judgment, with the Court of Appeal but by Minute dated 19 June 2020, Brown J advised Mr Lobb that while the Court of Appeal had jurisdiction to entertain an application for leave to appeal in respect of the spousal maintenance issue it did not have jurisdiction to consider the other two issues. As a result, Mr Lobb was advised that if he wished to appeal on the occupation and ancillary orders issue and the Credit Contracts Act issue he would have to seek leave to appeal in the High Court.
[3] Mr Lobb has therefore now sought leave to appeal in this Court, filing an application and memorandum in support. Mr Lobb’s application was called at a conference before me on 21 July 2020 at which point Mr Lobb confirmed that he did not wish to file any further material in support of his application. I therefore directed that Ms Ryan file submissions in opposition by 4 August 2020, and noted that both parties confirmed that the application should then be determined on the papers.
1 Lobb v Ryan [2020] NZHC 834.
2 Lobb v Ryan [2019] NZFC 5249 and Lobb v Ryan [2019] NZFC 5254.
[4] As a preliminary issue I note that while Mr Lobb’s application for leave to appeal is technically out of time, given the circumstances in which Mr Lobb had attempted to appeal promptly following the issue of my judgment, no issue is taken by Ms Ryan with the late filing of his application, and I agree it is appropriate to extend time for filing the application.
[5]I now turn to consider Mr Lobb’s application for leave to appeal.
The grounds for leave
[6] Mr Lobb has identified the following grounds to support his application for leave to appeal:
(a)the proceedings in both the Family Court and the High Court were not procedurally fair, resulting in breaches of both the bias rule and the hearing rule;
(b)Judge Powell was wrong in finding that the Court did not have jurisdiction to make an occupation order because 23 Orakei Road was neither a family home nor was the right the parties had to occupy that home relationship property;
(c)Judge Powell was wrong in finding that the Court did not have jurisdiction to order the respondent to return the appellant’s financial and personal documents and records because the Court did not have jurisdiction to make an occupation order;
(d)Judge Powell was wrong in finding that the Family Court did not have jurisdiction under the Credit Contracts and Consumer Finance Act 2003 to reopen a credit contract under s 120 of the Credit Contracts and Consumer Finance Act 2003;
(e)Judge Powell was wrong in finding that Westpac needed to be a party to the proceedings in order for the Court to reopen the credit contract because the power of the Court under s 120 of the Credit Contracts and Consumer Finance Act 2003 is extremely broad and in Real Finance Limited v Tofi Setefano3 the High Court held that the District Court could reopen a credit contract on its own motion even if the debtor did not commence any proceedings or in an undefended debt recovery proceeding;
(f)Judge Powell failed to apply the fundamental legal principle that no person can take advantage of their own wrong.
3 Real Finance Limited v Setefano [2016] NZHC 2293.
[7]In particular Mr Lobb submits:
(a)There is a divergence of case law as to whether or not the Court can grant an occupation order in relation to a property that is owned by a trust and there is a clear public interest in having clear guidance from the Court of Appeal on this issue given that a large number of family homes are owned by family trusts.
(b)There is no clear guidance from any Court as to whether the Family Court has jurisdiction to reopen a credit contract under the Credit Contracts and Consumer Finance Act 2003 in circumstances where a spouse who is a joint debtor with the other spouse has exercised, or intends to exercise, a right or power conferred by the contract in an oppressive manner to gain some advantage over the other spouse.
(c)Judge Burns and Judge Powell, were biased against the appellant both as a self-represented layperson and a person who has been subject to a Police Safety Order and a Temporary Protection Order despite Judge Pidwell4 finding that the appellant had been a victim of domestic violence by the respondent and that there was no evidence that the appellant had domestically abused the respondent demonstrating apparent bias against self-represented parties and men as victims of domestic violence. The mere existence of the historical Police Safety Order and Temporary Protection Order had and continues to have a highly prejudicial effect on the appellant in the courts, with the Police and in the appellant's community and it is impossible for the appellant to rehabilitate his reputation.
(d)As a result of the apparent bias of Judge Burns and Judge Powell the appellant suffered a breach of the hearing rule of natural justice because the hearings in both the Family Court and High Court were unrealistically short given the complexity of the issues to be considered by those courts, despite the appellant’s best efforts to demonstrate otherwise, all judges involved in preliminary procedural matters ignored the submissions by the appellant as to the complexity of the issues to be considered by the court preferring the submissions of the respondent's counsel that this was a "simple matter" and only required a minimal hearing. Judge Burns did not permit the appellant to present his case and Judge Powell spent most of hearing dealing with jurisdictional issues leaving limited time for the appellant to present his case and to consider the substantive issues the appellant was trying to raise. There has still not been any opportunity for cross examination of the respondent on who has been found to be an unreliable witness in related matters and has a history of deception of the court and police.
Discussion
[8] There is no dispute on the approach to be taken for an application for leave to bring a second appeal. An applicant like Mr Lobb must show the appeal will raise
4 Ryan v Lobb [2018] NZFC 6463.
some question of law or fact which is capable of bona fide and serious argument, and there is some interest, public or private, of sufficient importance to outweigh the costs of the appeal.5
[9] As Ms Cobcroft noted however, for Ms Ryan, where what is sought to be appealed is a question of fact:6
… the task of the applicant under s 67 is harder. An issue of fact in a matter falling within the jurisdiction of an inferior Court will seldom be of public importance. It is better that we make no attempt to define the circumstances in which a factual contest can be taken to have private importance but obviously it may do so if the amount at stake is very substantial or the decision reflects seriously on the character or conduct of the would be appellant or, as in Cuff, the judgment below has special consequences (for example, bankruptcy) for the losing party. Even then, however, leave cannot be anticipated if the applicant is seeking to disturb concurrent findings of fact in the lower Courts.
[10] Furthermore, on a second appeal a Court is not engaged in the correction of error. Rather its primary function is to clarify the law and to determine whether it has been properly construed and applied in the Court below.7
[11] Applying these principles, I begin my analysis by noting that to the extent that Mr Lobb raises issues of bias or breach of natural justice (i.e. the hearing rule) by Judge Burns, quite apart from the fact that there is no evidence to support any such assertion, Mr Lobb’s appeal to the High Court proceeded by way of rehearing and therefore any such bias or breach of natural justice is essentially irrelevant. Likewise, Mr Lobb has provided no evidential basis for suggesting any bias or breach of natural justice on my part, and more broadly such allegations do not raise any question of law or fact capable of bona fide and serious argument.
[12] On the occupation order issue raised by Mr Lobb, while the question of whether the Court has jurisdiction to grant an occupation order in respect of a property held in trust is indeed a legal issue, as Ms Cobcroft submitted, in the fact situation that pertains in the present case it does not give rise to an issue that is capable of bona fide
5 See for example Waller v Hider [1998] 1 NZLR 412 (CA).
6 Snee v Snee (1999) 13 PRNZ 609, [2000] NZ FLR 120 (CA).
7 Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355, [2008] 2 NZLR 591 at [31].
and serious argument. This is because the right to occupy the property was provided to the parties in their capacity as discretionary beneficiaries and not as spouses.8 Likewise my finding on jurisdiction was also subject to my ultimate conclusion that even if there had been jurisdiction I would not have made an occupation order in favour of Mr Lobb for the reasons set out.9
[13] Similarly, the nature of the application made by Mr Lobb in the Family Court made it clear that the orders he sought for the return of financial and personal documents were indeed ancillary to the making of the occupation orders and therefore were dependent on the outcome of the occupation order application.10
[14] The Credit Contracts Act issue also raises a legal issue that is not capable of bona fide and serious argument, namely whether the Family Court had jurisdiction to reopen the Westpac Mortgage over 23 Orakei Road to which Mr Lobb and Ms Ryan were parties.11 The fact that Mr Lobb notes that the District Court has jurisdiction to reopen a credit contract at any time does not assist, as there is no dispute the District Court has jurisdiction under the Credit Contracts Act,12 but this does not mean the Family Court has jurisdiction. In any event, even if there was jurisdiction the issue could not be considered on appeal given Westpac was not a party to the proceedings either in the Family Court or in the High Court.13
[15] Finally, it is not clear how the principle that “no person can take advantage of their own wrong” identified by Mr Lobb is applicable in the context of either the occupation order issue or the Credit Contract issue.
[16] I therefore conclude there is no basis for granting leave to appeal to Mr Lobb, and his application must be dismissed.
8 At [27] – [31].
9 At [33].
10 At [32].
11 At [39] – [40].
12 At [40].
13 At [41] – [43].
Decision
[17] The oral application to extend time for filing the application for leave to appeal is granted.
[18] The application for leave to appeal on the occupation order issue and the Credit Contract issue is dismissed.
[19] Ms Ryan is entitled to costs on the application. Ms Ryan is to file a memorandum on costs within three working days of this judgment and Mr Lobb will have three working days to respond. The issue will then be dealt with at the hearing previously scheduled to determine costs and contempt issues, to be held before me on 24 August 2020.
Powell J
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