Noyce v Pendrell Investments Limited - [2023] NZHC 3778

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2794

[2023] NZHC 3778

BETWEEN
DIGBY JOHN NOYCE

Applicant

AND

PENDRELL INVESTMENTS LIMITED

First Respondent

Continued overleaf

CIV-2019-404-1591

BETWEEN

VERENA COLLEEN RYAN
First Plaintiff

DIGBY JOHN NOYCE

Second Plaintiff

Continued Overleaf

Hearing: 13, 15 and 18 December 2023

Appearances:

H L Thompson for Mr Noyce

R Latton & G R Grant for Stuart Lobb L W Dixon for Ms Ryan

No appearance by or on behalf of Pendrell investments Ltd No appearance by or on behalf of Lothbury Management Ltd No appearance by or on behalf of WAG Trustees (2020) Ltd No appearance by or on behalf of Mattson Partnership Warwick Lobb in Person

Judgment:

19 December 2023

JUDGMENT OF POWELL J

[Application to remove caveats]

This judgment was delivered by me on 19 December 2023 at 4.45 pm pursuant to
r 11.5 of the High Court Rules
…………………..

DIGBY JOHN NOYCE v PENDRELL INVESTMENTS LIMITED [2023] NZHC 3778 [19 December 2023]

REGISTRAR-GENERAL OF LAND
Second Respondent

STUART JAMES LOBB
Third Respondent

LOTHBURY MANAGEMENT LIMITED
Fourth Respondent

WAG TRUSTEES (2020) LIMITED
Fifth Respondent

MATTSON PARTNERSHIP
Sixth Respondent

WARWICK LOBB
Seventh Respondent

AND

STUART JAMES LOBB
First Defendant

LOCKHART TRUSTEE SERVICES NO.56 LIMITED
Second Defendant

WAG TRUSTEES (2020) LIMITED
Third Defendant

[1] Digby Noyce seeks the removal of six caveats currently or pending on the title of a property at 23 Orakei Road, Remuera (“the Orakei Road property”). Mr Noyce seeks the removal of the caveats because the Orakei Road property has been sold and is due to settle on 20 December 2023.

Background to the application

[2] Mr Noyce is the Court-appointed receiver of the Lothbury Trust (“the Trust”). The Trust is a Family Trust settled by Verena Ryan and Stuart Lobb in June 2005. Ms Ryan and Mr Lobb were married at the time.

[3] Ms Ryan and Mr Lobb separated in October 2016. At the time Ms Ryan and Mr Lobb separated they were, together with Lockhart Trustee Services No. 56 Ltd (“Lockhart”), the trustees of the trust. Following separation Ms Ryan and Mr Lobb have been in dispute on a wide range of matters including the management and interpretation of the Trust deed and the Trust was deadlocked.

[4] The deadlock was only eventually resolved through the removal of all three existing trustees and their replacement by Mr Noyce.1 Specifically Mr Noyce was appointed for the primary purpose of preserving the assets of the Trust pending the substantive outcome of the present proceedings, an application by Ms Ryan for a declaration as to the true construction of a clause of the Trust deed relating to the settlement of Trust assets in the event of separation.2 At the time of his appointment, Mr Noyce was given the powers and authorities set out in s 14(2) of the Receiverships Act 1993, and was given leave to seek directions as to the sale of Trust property.

[5] The primary asset of the…

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.

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Details

Case: [2023] NZHC 3778
Decision Date: 19 December 2023

CaseChat Overview and Summary

Digby John Noyce, as the Court-appointed receiver of the Lothbury Trust, has applied to remove six caveats lodged on the title of a property located at 23 Orakei Road, Remuera, with the property scheduled to settle on 20 December 2023. The respondents to the application include Pendrell Investments Limited, Stuart James Lobb, Lothbury Management Limited, WAG Trust, Warwick Lobb, and the Mattson Partnership, all of whom had filed caveats against the property. The court was required to determine whether Mr Noyce had standing to apply for the removal of the caveats and whether the respondents had a reasonable basis for their claims. The court found that Mr Noyce, as a receiver, had sufficient standing to apply for the removal of the caveats. Regarding the respondents' claims, the court determined that none of them had a reasonably arguable basis for their caveats. The Pendrell caveat was removed as Pendrell had failed to settle on the purchase and had no intention to do so. The caveats filed by Stuart Lobb, Lothbury Management Limited, WAG Trust, Warwick Lobb, and the Mattson Partnership were also removed as they did not present a plausible claim to a caveatable interest in the property. The court ordered that no further caveats be lodged by the Lobb family or related entities without the court's leave. The court awarded costs to Mr Noyce.

Orders