Lobb v Ryan - [2020] NZHC 2031

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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…

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 [2020] NZHC 2031
Case: [2020] NZHC 2031
Decision Date: 11 August 2020

CaseChat Overview and Summary

In Lobb v Ryan, the High Court of New Zealand was called upon to decide Stuart James Lobb's application for leave to appeal against two judgments of the Family Court at Auckland. The court was required to determine whether Lobb's grounds for appeal, which included claims of procedural unfairness, bias, and jurisdictional errors, were sufficient to warrant a second appeal. The appeal pertained to issues regarding spousal maintenance, occupation orders for a property held in trust, and jurisdiction to reopen a credit contract.

The court found that Lobb's allegations of bias and procedural unfairness did not substantiate any bona fide and serious argument, as they lacked evidence and were irrelevant to the rehearing nature of the appeal. Additionally, the court held that the legal issues raised concerning the jurisdiction to grant occupation orders and reopen a credit contract did not meet the threshold for a second appeal. The court concluded that these issues were either not capable of serious argument or were irrelevant given the proceedings' procedural context. Consequently, the application for leave to appeal was dismissed, and the court ordered that the respondent, Verena Colleen Ryan, was entitled to costs on the application.

Orders