Lobb v Symons

[2024] NZHC 2084

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-003037

[2024] NZHC 2084

BETWEEN

BLAIR MARSTON LOBB

Applicant

AND

ALISON JILL ELIZABETH SYMONS, GRAHAM MURRAY SYMONS and YOUNG + CARRINGTON TRUSTEES

(2016) LIMITED as trustees of the Symons Family Trust

Respondents

Hearing:

On the papers

Counsel:

Applicant in Person

V A Crawshaw KC / G G Edwards for the Respondents

Judgment:

30 July 2024

COSTS JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 30 July 2024 at 3.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Morris Legal, Auckland

LOBB v SYMONS [2024] NZHC 2084 [30 July 2024]

[1]                 In a judgment delivered on 14 June 2024 I dismissed Blair Lobb’s application to sustain a caveat he had lodged against the title of a property owned by the respondents.1 In doing so, I found that Mr Lobb did not have a reasonably arguable equitable interest in the property as a beneficiary of a constructive trust.

[2]                 The respondents apply for an order for indemnity costs because their solicitor wrote to Mr Lobb’s solicitor on 1 December 2023, setting out why Mr Lobb had no basis for lodging the caveat.

[3]Mr Lobb opposes an order for indemnity costs.

[4]The jurisdiction to award indemnity costs is found in r 14.6 of the HCR:

14.6 Increased costs and indemnity costs

…

(4)The court may order a party to pay indemnity costs if—

(a)the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding; or

(b)the party has ignored or disobeyed an order or direction of the court or breached an undertaking given to the court or another party; or

(c)costs are payable from a fund, the party claiming costs is a necessary party to the proceeding affecting the fund, and the party claiming costs has acted reasonably in the proceeding; or

(d)the person in whose favour the order of costs is made was not a party to the proceeding and has acted reasonably in relation to it; or

(e)the party claiming costs is entitled to indemnity costs under a contract or deed; or

(f)some other reason exists which justifies the court making an order for indemnity costs despite the principle that the determination of costs should be predictable and expeditious.

[5]                   In Bradbury v Westpac Banking Corp, the Court of Appeal endorsed the following (non-exhaustive) list of circumstances in which indemnity costs may be ordered where a party has acted either badly or very unreasonably:2

1      Lobb v Symons [2024] NZHC 1569.

2      Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] 3 NZLR 400 at [29].

(a)the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud;

(b)particular misconduct that causes loss of time to the court and to other parties;

(c)commencing or continuing proceedings for some ulterior motive;

(d)doing so in wilful disregard of known facts or clearly established law; or

(e)making allegations which ought never to have been made or unduly prolonging a case by groundless contentions.

[6]In their letter to Mr Lobb’s solicitor the respondents’ solicitor said:

2.There is plainly no basis for your client to assert that he has a constructive trust claim in relation to the Paritai Drive property. The property was specifically purchased for Alaina to live in following her decision to separate from Blair. We understand the trustees of the Symons Family Trust purchased the property using bank loans and other properties as security.

3.Blair has not made any direct or indirect contributions to the property, he has no reasonable expectation of an interest in the property, and the trustees do not reasonably expect to yield to Blair an interest in the property. It is clear from the caveat that your client has lodged a manual dealing. We expect this is because registering a caveat on a title to land knowing there is not a caveatable interest would be a breach of rule 2.3 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.

4.Please confirm by 5pm on 4 December 2023 that your client will remove the caveat on the title of the Paritai Drive property. Failing receipt of that confirmation, we understand the trustees of the Symons Family Trust will apply to lapse the caveat against the property. Should proceedings eventuate, indemnity costs will be sought against Blair.

[7]                 I do not repeat all Mr Lobb’s submissions here, but essentially he does not accept the findings in the judgment, maintains that discovery is necessary to resolve disputed factual issues, that the respondents’ counsel misled the Court, that to award indemnity costs would continue the financial abuse he has suffered from the

respondents, and that until a mediation and/or hearing on the substantive issues it would be unfair to award indemnity costs or any costs at all.

[8]                 I dismissed Mr Lobb’s application to sustain the caveat because there was no evidence tending to show that he had made direct or indirect contributions to the acquisition or enhancement of the property over which he had lodged the caveat. Additionally, his claim was legally flawed, because he could not possibly have expected to obtain an interest in the property when he made the alleged contributions some six years before the property was purchased by the respondents.

[9]                 While Mr Lobb’s claim to an interest in the property pursuant to a constructive trust was misconceived, he appeared to genuinely believe in his case. I am not persuaded that an award of indemnity costs is justified on the basis that Mr Lobb acted improperly or in wilful disregard to the legal position. An award of ordinary costs is more appropriate.

Result

[10]I refuse the respondents’ application for indemnity costs.

[11]              I order Mr Lobb to pay the respondents’ costs in relation to the caveat application on a Scale 2B basis, with reasonable disbursements, to be fixed by the Registrar.

Associate Judge Gardiner