Noyce v Pendrell Investments Limited
[2023] NZHC 3778
•19 December 2023
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 PlaintiffDIGBY 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 Trust is the Orakei Road property, the registered proprietors being the former trustees Ms Ryan, Mr Lobb and Lockhart.
[6] In April 2023, Hinton J issued a substantive judgment in relation to the Trust (“the judgment of Hinton J”).3 Her Honour determined the interpretation and application of the Trust deed and made a range of orders relevant to the disposal of the
1 See Lockhart Trustee Services Ltd v Ryan [2020] NZHC 1823.
2 At [37].
3 Ryan v Lobb [2023] NZHC 689.
Trust assets (“the orders of Hinton J”).4 Of relevance to this judgment, Mr Noyce was directed to sell the Orakei Road property5 without delay.6
[7] Mr Lobb appealed the judgment of Hinton J and sought a stay of the judgment. The application for stay was dismissed,7 and his appeal was subsequently deemed abandoned when the case on appeal was not filed as required. Mr Lobb has indicated a desire to reinstate his appeal, but at the date of the present hearing no formal application to reinstate the appeal had been made, still less determined by the Court of Appeal.
[8] In the meantime, Mr Noyce has endeavoured to carry out the orders of Hinton J. The Orakei Road property was put up for sale, and eventually sold at auction for $3.69m to Pendrell Investments Limited (“Pendrell”), which following the purchase of the Orakei Road property was acquired by Lobb family interests. In the event, the settlement of the sale to Pendrell, scheduled for 27 October 2023, did not take place. Pendrell was unable to settle, forfeited the deposit, and Mr Noyce cancelled the contract. Mr Noyce subsequently entered negotiations with other bidders from the auction which resulted in a further sale to an unrelated third party in the sum of $3.05m. Settlement of the Orakei Road property is now scheduled to take place on 20 December 2023.
[9] In anticipation of settlement Mr Noyce applied to remove a caveat filed by Pendrell following its purchase of the Orakei Road property at auction. In addition Mr Noyce sought an order pursuant to s 140(2)(k) of the Land Transfer Act 2017 (“LTA”) to obviate the need to respond to further caveats filed by Lobb family interests. By the time the application to remove the Pendrell caveat was called on 13 December 2023, no less than five further caveats had been filed on behalf of the following:
(a)Mr Lobb;
4 At [177]-[180].
5 At [176 4].
6 At [180].
7 Ryan v Lobb [2023] NZHC 1518, at [65]-[92] and [95].
(b)Lothbury Management Limited (“LML”);
(c)the WAG Trust;
(d)Mr Lobb’s father, Warwick Lobb; and
(e)the Mattson Partnership.
[10] The status of each of the caveats was unclear at the time of the hearings. It appeared that all were still being processed and at least one appears to have been requisitioned. At the 13 December 2023 hearing it was indicated that the Pendrell caveat was in the process of being removed but no confirmation of that has been provided, and on the contrary the indication from the members of the Lobb family present on 15 December 2023 is that there is no intention to remove that caveat.
[11] Dismissing by minute Mr Noyce’s application for an order pursuant to s 140(2)(k), I concluded it was both necessary and appropriate that all of the additional caveats lodged on behalf of Lobb family interests noted above be called on 15 December 2023 under the cover of the Pendrell application.8 I then issued timetable orders to enable all of the identified caveators to participate. I also directed that the substantive proceedings between Ms Ryan and Mr Lobb9 be called at the same time, noting that I had, in a recent judgment, reserved leave generally for Mr Noyce to seek further orders restraining Mr Lobb and/or other members of the Lobb family from interfering with any further steps necessary to effect the sale of the Orakei Road property including a further sale process, should that be necessary.10
[12] In the event the hearing proceeded on 15 December 2023. Due to a bomb threat directed at the Auckland High Court, it was not able to be completed until 18 December 2023. So as to avoid further caveats being lodged in the meantime, as I was adjourning the application at the end of the hearing on 15 December 2023, I made the following order:11
8 Minute of Powell J dated 14 December 2023, CIV-2023-404-2794, at [5].
9 CIV-2019-404-1591 (Ryan v Lobb)
10 Ryan v Lobb (No.2) [2023] NZHC 3595, at [32].
11 Minute of Powell J dated 15 December 2023, CIV 2019-404-1591 and CIV 2023-404-2794, at [2]
No member of the wider Lobb family, including Stuart Lobb, Warwick Lobb, Blair Lobb, or Gareth Lobb and/or any of the entities of which they are directors and shareholders is to make, file, lodge, or otherwise purport to file or lodge a caveat against the title of 23 Orakei Road, Remuera. That order will remain in force until further order of the Court.
Preliminary issue – the status of Mr Joyce to apply to remove the caveats
[13] As a preliminary issue Mr Latton raised the issue of whether Mr Noyce had sufficient standing to bring the application. It is noted that no issue was taken when Mr Noyce previously applied to remove caveats filed by LML, WAG Trustees [2020] Ltd and Warwick Lobb after Pendrell had purchased the Orakei Road property at auction.
[14] Mr Latton, on behalf of the respondents, maintained that Mr Noyce lacked standing to remove the caveat and as the receiver did not have an interest in the property. Accordingly, he does not have standing to apply to remove the caveats which is a requirement to engage the Court’s jurisdiction.
[15] In support of this argument, Mr Latton referred the Court to a passage in Rea v Omana Ranch Ltd, in which Katz J noted:12
Court-appointed receivers are officers of the Court. They are answerable to the Court alone and are not controlled by either the grantor or its creditors. A Court-appointed receiver must always act within the limits of the Court order making the appointment and within any subsequent directions of the Court.
[16] Mr Latton recognised that receivers act as agents for the entity and the responsibility necessarily encompasses an ability to take legal action in the entities name. However, in submissions, he noted that “[i]t is unusual that Mr Noyce has commenced proceedings in his own name in this case. He has himself no interest in the Property”. Further, it was submitted that “[s]uch [an] interest lies with the Lothbury Trust, who are not parties to this proceeding. In the circumstances, Mr Noyce lacks standing to remove the caveat”.
12 Rea v Omana Ranch Ltd [2012] NZHC 2639, [2013] 1 NZLR 587 at [11].
Discussion
[17] The Land Transfer Act 2017 (“The LTA”) provides that an application to remove a caveat can be made by a person “who has an estate or interest affected by a caveat”. It is not a requirement under the Act, as was the case under the Land Transfer Act 1952, for the applicant to hold a registered interest. Those who claim unregistered interests may apply under s142.13 It reflected a broader legislative intent to widen the class of applicants.
[18] Mr Noyce brings the claim to remove the caveat in his capacity as a receiver of the Trust. It would defeat the intention of the Court removing the trustees, and appointing a receiver and authorising that receiver to sell Trust property if the receiver was not then able to bring a claim to remove a caveat under s 142.
[19] In this case I am satisfied that the powers given to Mr Noyce to not only sell the Orakei Road property but take all necessary steps to effect that sale is a sufficient “interest affected by a caveat” to make the applications.
[20]I therefore conclude Mr Noyce has standing to apply to remove the caveats.
Legal principles
[21]Section 142 of the LTA provides:
142 Removal of caveat against dealings
The court may, on application by a person who has an estate or interest affected by a caveat against dealings, order that the caveat is removed.
[22] The principles governing the jurisdiction and removal of caveats under ss 142 are well settled.14 Following an application under s 142, in order to sustain a caveat, the caveator must show a reasonably arguable case for the claim.15 Otherwise, the caveat will be removed. The caveat must state with sufficient certainty what estate or
13 Elizabeth Toomey (ed) New Zealand Land Law (3rd ed, Thomson Reuters, Wellington, 2017) at [4.5.02].
14 Neil Campbell Campbell on Caveats (3rd ed, LexisNexis, Wellington, 2019) at 66.
15 Sims v Lowe [1988] 1 NZLR 656 at 600 (CA).
interest the caveator claims.16 However even if a caveator has discharged the onus, and demonstrates a reasonably arguable case, the Court “retains discretion to remove the caveat which it exercises on a cautious basis”.17
[23]I now deal with each of the six caveats in turn.
Pendrell Investments Ltd caveat
[24] Pendrell was a vehicle by which Lobb family interests could register and bid at the auction for the sale of the Orakei Road property. Following its successful bid the company was purchased by Lobb family interests.
[25] There is no dispute that Pendrell had a caveatable interest in the Orakei Road property at the time its caveat was filed. At that time it had purchased the property at auction and was therefore entitled to file the caveat pending settlement occurring on 27 October 2023.
[26] In the event, and as noted above, Prendrell failed to settle on the due date and Mr Noyce cancelled the agreement.
Discussion
[27] No steps have been taken by Pendrell to sustain the caveat. Pendrell has not challenged the cancellation and there is no suggestion it seeks to complete the purchase of the Orakei Road property in terms of the agreement for sale and purchase. On the contrary, as Mr Thompson submitted on behalf of Mr Noyce, any criticism of the cancellation has been focused on the fact that Mr Noyce was not prepared to let Pendrell settle at a lower purchase price, and the subsequent resale process.
[28] In the circumstances I am satisfied that there can be no basis for any argument that Pendrell retains a caveatable interest in the Orakei Road property following the cancellation of its contract. As a result the Pendrell caveat must be removed.
16 Section 138 of the Land Transfer Act 2017; Hawken Lane Development LP v Property Sales Direct Ltd [2021] NZHC 1410, (2021) 22 NZCPR 212 at [8].
17 Philpott v Noble Investments Ltd [2015] NZCA 342 at [26].
Stuart Lobb caveat
[29] Mr Lobb’s caveat was filed on 13 December 2023 and claimed the following caveatable interest:
Pursuant to a Trust of what the registered owners were the trustees and the caveator is beneficiary.
[30] Mr Lobb contends that once the resettlement foreshadowed in the judgment of Hinton J takes place he will be left as the sole settlor and protection of the Trust and “the sole primary discretionary beneficiary with his needs to be treated as paramount”. To this end Mr Lobb has entered into a deed dated 13 December 2023 (“the 13 December deed”) which purports to require him to, once the Trust has been resettled, “remove all discretionary beneficiaries of the Trust including the Final Beneficiaries to the intent and purpose that [Mr Lobb] is the sole remaining beneficiary of the Trust”.
[31] The effect of this in Mr Latton’s submission is that the extent of Mr Lobb’s control over the property at the trust will be “tantamount to ownership”.18 In Mr Latton’s submission Mr Lobb will not only be the effective owner of the assets of the Trust after resettlement but will also hold a beneficial interest 50 per cent of the current property of the Trust including the Orakei Road property.
[32] As such Mr Lobb takes issue with what he considers to be the sale of the Orakei Road property at an undervalue. In particular, Mr Lobb notes that having cancelled the contract to Pendrell (a purchase price of $3.69m) Mr Noyce has resold the property for $3.05m without going through any further marketing or resale process resulting in a significant undervalue. In support of this proposition Mr Lobb has obtained a valuation appraisal report of the Orakei Road property by Michael O’Connell, a registered valuer, which provides a market value of $3,400,000 - $3,775,000 (including GST if any).
[33] In Mr Latton’s submissions the sale at undervalue breaches Mr Noyce’s duty to obtain the best price reasonably obtainable at the time of sale. Mr Latton also notes
18 Tasarruf Mevduati Sigorta Fonu v Merrill Lynch Bank and Trust Company (Cayman) Ltd, [2011] UKPC 17 4 All ER 704, at [41]-[43] and [59]-[60]l; and Clayton v Clayton [2015] NZCA 30 at [100].
that where Pendrell was not able to settle the purchase, it “was in essence short by
$240,000 to settle”, and yet Mr Noyce did not seek to negotiate with Pendrell prior to cancellation and entering into the current contract for only $3.05m. As a result Mr Latton submits that having established a caveatable interest the Court’s discretion should be exercised to sustain the caveat.
Discussion
[34] Having considered the material provided by Mr Lobb and Mr Latton’s submissions I am not satisfied that Mr Lobb has established a caveatable interest on the basis identified.
[35] Leaving aside an argument advanced by Mr Dixon on behalf of Ms Ryan as to whether the Trust deed would give Mr Lobb the sole power to remove the beneficiaries, it is in any event clear that Mr Lobb will not become the effective owner of any part of the trust property until some time in the future, assuming he does not decide to rescind the 13 December deed in the meantime.
[36] Any property over which Mr Lobb becomes the effective owner of will in any event be limited to any funds vesting in the event Trust after resettlement has taken place. A necessary prerequisite to this occurring is of course, the sale of the Orakei Road property. It follows that Mr Lobb can have no caveatable interest in the Orakei Road property itself. As Mr Thompson noted, it is something of an absurdity to suggest that a future interest in the assets of the Trust after resettlement could enable Mr Lobb to block the very sale that is required to give him the total beneficial interest he claims in those assets.
[37] I therefore conclude that the contrived interest claimed by Mr Lobb is not remotely arguable and as a result his caveat must be removed.
[38] Even if I am wrong in my assessment I would have in any event exercised my discretion to remove Mr Lobb’s caveat. While it is not appropriate in the context of an application to remove a caveat to consider the present resale process, it is clear that the removal of the caveat will not preclude an action by Mr Lobb against Mr Noyce with regard to the claimed undervalue. Conversely, and contrary to the written
submissions of Mr Latton there is no suggestion of any “lack of partiality” in the current resale and to uphold the caveat and block the sale would simply open up the Trust to a claim by the third party purchaser for specific performance and/or damages.
Lothbury Management Ltd caveat
[39]The caveat on behalf of LML claims an interest as follows:
Section 138 – Pursuant to a constructive trust of which the registered owners are the trustees and the caveator is a beneficiary.
[40] It is in fact the second caveat filed by LML against the title of the Orakei Road property. The first was filed following the purchase by Pendrell at auction. In CIV- 2023-404-2082 Mr Noyce applied for the LML caveat to be removed. This was opposed by LML, which was represented by counsel, with Mr Lobb swearing an affidavit in opposition. In his evidence Mr Lobb asserted that it was LML that had paid for development costs, repairs and renovations at the Orakei Road property and that as a result:
In the circumstances, I believe that LML has an equitable interest in the Property. This arises from a constructive trust to which the Court should give effect because LML has contributed to the preservation and enhancement of the Property and, in all the circumstances, the parties must be taken reasonably to have expected that LML would share in the Property as a result and/or it would be unconscionable to deny that interest.
[41] When at the hearing of the application, it was pointed out that Mr Lobb’s assertion was not only inconsistent with the discussion of amounts claimed by LML in the judgment of Hinton J, it was inconsistent with the position taken by Mr Lobb in his evidence at that hearing and with regard to the submissions he presented. The hearing was therefore adjourned to enable all counsel to consider the material presented by Mr Lobb before Hinton J.
[42] In the event judgment was not issued, as instead a joint counsel memorandum was filed seeking orders by consent in the following terms:
The first respondent, Lothbury Management Limited must remove caveat against dealings with land, number 12810283.1 (“the Caveat”) from Record of Title NA52A/1231, North Auckland no later than 5 pm on Wednesday 18th October 2023, failing which the applicant may discharge the Caveat in reliance on this order.
The first respondent shall pay the applicant’s costs of this application on a Category 2, Band B basis, with disbursements, in the total sum of $12,992.47 as per the attached schedule.
[43]Orders were subsequently made by consent and the caveat was withdrawn.
[44]No additional evidence was filed by LML in support of its second caveat.
Discussion
[45] The LML caveat can be addressed relatively succinctly. Having reviewed the relevant parts of the judgment of Hinton J and Mr Lobb’s evidence and submissions in that case, it is clear that the position asserted by Mr Lobb in relation to the first LML caveat cannot be sustained and does not as a result raise “sufficient prima facie plausibility to merit further investigation as to their worth”.19 For example, the following quote from Mr Lobb’s closing submissions to Hinton J is clear:
I submit, as a trained KPMG Auditor and Chartered Accountant of 25 years (along with the expert accountants engaged in this matter) is there may well be nothing left to distribute to anyone at the time of sale/settlement (such as the receiver and/or beneficiaries) once the mortgage holder (WAG Trust) and the other unsecured creditors (IRD & Lothbury Management Ltd) were paid.
[46] Put simply, there was no suggestion by Mr Lobb in the material presented by him to Hinton J that LML was anything other than an unsecured creditor. That the consent orders included the substantial amount of costs agreed by counsel reflected this position. As a result I conclude that there is no reasonably arguable basis for any caveatable interest claimed by LML. On the contrary I conclude that the lodging of a further caveat on the same basis as the first amounts to an abuse of process. The LML caveat must be removed.
WAG Trust caveat
[47] The WAG Trust caveat claims the following interest in the Orakei Road property:
Section 138 – Pursuant to a constructive trust of which the registered owners are the trustees and the caveator is a beneficiary.
19 Eng Mee Yong v Letchumanan [1980] AC 331 (PC), at 341 E-R.
[48] The WAG Trust is not a legal entity. It can only operate through its trustee, WAG Trustee (2020) Ltd (“WAG”). WAG had previously lodged a caveat in respect of the Orakei Road property prior to the auction. However, following an exchange of emails by solicitors for Mr Noyce and WAG, WAG (and Warwick Lobb) both agreed to withdraw those caveats and agreed both WAG and Warwick Lobb would “not attempt to register any subsequent caveats”.
[49] No steps have been taken by WAG to sustain the present caveat, although it is noted that in providing evidence to support his own caveat Warwick Lobb has annexed copies of documents filed by Blair Lobb in the Court purporting to be reports from WAG as “the mortgagee in possession” of the Orakei Road property.
Discussion
[50] Whether the caveator is the WAG Trust or WAG it is clear that no caveatable interest exists. Indeed, the continued assertions that WAG is a mortgagee in possession is a nonsense, while the ongoing filings asserting that it is are not only an abuse of process, but arguably a contempt of court.
[51] The reason for this is that the status of the WAG Trust/WAG interest has already been determined.20 There is no dispute that WAG borrowed money which it advanced to Mr Lobb to repay the Westpac mortgage secured over the Orakei Road property, and the judgment of Hinton J therefore requires repayment of the sum of
$1.4m to WAG out of the proceeds of sale of the Orakei Road Property.21
[52] At the same time WAG arranged for Westpac to transfer the mortgage to the WAG.22 As a result shortly after the judgment of Hinton J was deferred on to April 2023 WAG issued a notice under s 119 of the Property Law Act 2007 (“PLA”).23
[53] In response, Mr Noyce sought orders from the Court and on 4 May 2023 Downs J granted an injunction in the following terms:
20 See Ryan v Lobb [2023] NZHC 1518.
21 At [21]-[28], and see judgment of Hinton J in particular [173] and [176].
22 At [19]-[20].
23 At [29]-[30].
Injuncting WAG Trustees (2020) Limited from taking any steps under its notice dated 8 April 2023 purportedly given to the plaintiff and to the first defendant under section 119 of the Property Law Act 2007; or under mortgage 9977107.3; or both, pending further order of the Court.
[54] Following two further conferences at which Edwards J recorded that WAG had withdrawn all notices issued by it pursuant to its PLA notice.24 a substantive hearing followed to determine what, if anything, the former Westpac mortgage secured. Issuing judgment, Edwards J determined that the mortgage did not secure WAG’s loan to Mr Lobb and used to settle the amounts owing to Westpac, “does not service WAG’s loan to Mr Lobb and it does not secure any other obligations of the registered proprietors or any other person”.25 Those conclusions were confirmed by declarations in the following terms:26
(a)Declaring that the registered proprietors of the land in Identified NA52A/1231, with the street address of 23 Orakei Road, Remuera (Property) do not owe any money or other obligation to the third defendant.
(b)Declaring that the Mortgage Instrument 9977107.3 of which the third defendant is the registered mortgagee does not secure the repayment of any debt or the performance of any obligation whether of the registered proprietors of the Property or Mr Lobb or at all…
[55] Justice Edwards declined to stay the judgment pending appeal, and although an appeal was filed by WAG it has since been deemed abandoned.
[56] It follows that as matters stand WAG is not a mortgagee in possession and cannot possibly claim any reasonably arguable caveatable interest in the Orakei Road Property. As a result the WAG Trust/WAG caveat must also be removed.
Warwick Lobb caveat
[57] Warwick Lobb’s caveat claims the following interest in the Orakei Road property:
Section 138 – Pursuant to a constructive trust of which the registered owners are the trustees and the caveator is a beneficiary.
24 See minute of Edwards J dated 29 May 2023 and minute of Edwards J dated 1 June 2023.
25 At [60].
26 At [94].
[58] As noted, Warwick Lobb too had filed an earlier caveat, which along with the first WAG caveat was withdrawn by agreement, including that no further caveat was to be filed.
[59] I acknowledge Warwick Lobb was suffering from COVID-19 at the hearing of the applications and therefore participated by VMR. As a result of the forced adjournment of the hearing on 15 December 2023, Warwick Lobb took the opportunity to file an affidavit prior to the commencement of the hearing on 18 December 2023. In that affidavit Warwick Lobb identified his claimed caveatable interest in the Orakei Road property in the following terms:
…I oppose the removal of the caveats lodged against dealings which the Lobb family placed in the LINZ records of the property at 23 Orakei Road, Remuera (the “Caveats” and the “Property” respectively). The caveats were lodged to protect a long claimed equitable interest in the Property on the part of me personally and/or the WAG Trust and its related entities which arises under a constructive trust and/or rights under a Sale and Purchase agreement (following a public auction) dated 20 September 2023.
…
I held a mortgage instrument over the property (23 Orakei Road) via WAG Trustees (2020) Limited that was legally assigned by Westpac and my lawyers and recorded on the property title since 2015.
I have a long term equitable interest in 23 Orakei Road, Remuera since it was first purchased in 2003 when I contributed 50% of the deposit funds and it was operated as a Lobb family rental property.
I have also provided various other amounts that were acknowledged by Ms Ryan and my eldest son Stuart secured against the 23 Orakei Road Property.
Evidence of these activities is outlined in the Bundle of Document attached…
[60] The bundle referred to included the two reports filed by Blair Lobb on behalf of WAG as the mortgagee in possession and referred to in the previous section of this judgment.
Discussion
[61] Unlike the other claimed caveatable interests addressed in this judgment, the personal claims of Warwick Lobb were considered by Hinton J in some detail in her Honour’s judgment.27 Although Warwick Lobb was not a party to those proceedings,
27 Judgment of Hinton J.
timetable orders issued by Associate Judge Smith had provided Warwick Lobb with an opportunity to apply to become a party but no application was forthcoming. Despite this, Mr Lobb consistently raised the issue of Warwick Lobb’s interest in the Orakei Road property and as a result it was necessarily considered by Hinton J.
[62] As Hinton J noted, Mr Lobb argued Ms Ryan held her share in the Orakei Road property “as a trustee for Warwick Lobb as the true beneficial owner”.28 Considering Mr Lobb’s arguments Hinton J concluded his argument ran “counter” to legal title and to all of the trust documents,29 and that “none of the contemporaneous documentary evidence [was] consistent with Mr Lobb’s argument”.30
[63] After considering carefully how any claims by Warwick Lobb to a beneficial interest in the Orakei Road property could be conceptualised31 Hinton J concluded:32
No claim has been made by Mr Lobb Senior as to a resulting trust, nor does such a claim appear tenable on the material before me. It is therefore not a matter to be taken into account under cl 2.5(3).
[64] It was on this basis Hinton J ordered the sale of the Orakei Road property. Quite clearly if Hinton J had formed the view that Warwick Lobb had an interest that was reasonably arguable the Court could not have ordered the sale of the property. Nothing that I have seen in the additional material filed by Warwick Lobb in the course of the present applications casts any doubt on the analysis of Hinton J. It follows, noting again that the appeal against the judgment of Hinton J has been abandoned, that there can be no basis for now upholding a caveat based on an interest claimed by Warwick Lobb. As a result I conclude Warwick Lobb’s caveat must be removed.
Mattson Partnership caveat
[65] The Mattson Partnership caveat claims the following interest in the Orakei Road property:
Section 138 – Pursuant to a constructive trust of which the registered owners are the trustees and the caveator a beneficiary.
28 At [82].
29 At [117].
30 At [119].
31 At [154]–[163].
32 At [164].
[66] There is no dispute that the Mattson Partnership was a partnership named after a first rental property acquired by members of the Lobb family at 13 Mattson Road. Mr Lobb claims to have used monies provided by Mattson to pay for the deposit of the Orakei Road property and further funds provided for renovations.
Discussion
[67] The Mattson Partnership caveat is the first caveat purportedly filed on behalf of the Mattson Partnership. Unlike, for example, as he did with regard to the claims of Warwick Lobb, Mr Lobb did not argue that the Mattson Partnership had some type of beneficial interest in the Orakei Road property in the course of the hearing before Hinton J. This appears to be because as Mr Lobb has noted in his evidence before Hinton J the Mattson Partnership eventually ‘became’ LML in 2004.33
[68] Given that position, the same issues identified by Hinton J with respect to any claim by Warwick Lobb apply equally with regard to the Mattson Partnership caveat. In particular, it is difficult to see how any resulting trust interest claimed by the Mattson Partnership could survive the vesting of the Orakei Road property in the Trust. Taking these various matters together I conclude that there is an insufficient evidential foundation to support any argument that the Mattson Partnership has a caveatable interest over the Orakei Road property. The Mattson Partnership caveat must be removed.
Is any additional relief required?
[69] Having concluded that all six of the caveats lodged against the Orakei Road property should be removed, I consider that it is not appropriate for further caveats to be lodged by Lobb family interests. I therefore confirm the order made at the conclusion of the 15 December 2023 hearing, albeit amended in the terms set out in the final section of this judgment so to include specific Lobb family entities and to allow further caveats in the event leave is obtained from the Court.
33 NOE at 157, L 26-27.
Decision
[70] The following caveats, whether registered, pending or requisitioned and lodged by the following persons are to be removed from the title of 23 Orakei Road, Remuera (being the land in identifier NA52A/1231):
(a)Pendrell Investments Limited;
(b)Stuart James Lobb;
(c)Lothbury Management Limited;
(d)WAG Trust and/or WAG Trustees (2020) Limited;
(e)Warwick John Lobb; and
(f)Mattson Partnership.
[71] No member of the wider Lobb family, (including Stuart Lobb, Warwick Lobb, Blair Lobb, or Gareth Lobb) and/or any of the entities of which they are directors and shareholders (including Lothbury Management Limited and WAG Trustees (2020) Limited) is to make, file, lodge, or otherwise purport to file or lodge a caveat against the title of 23 Orakei Road, Remuera (being the land in identifier NA52A/1231) unless leave (in advance) is granted by the Court.
[72] Mr Noyce is entitled to costs on the application. A memorandum setting out the costs claimed and against which individuals and/or entities is to be filed by 1 February 2024. Any responses are to be filed by 15 February 2024. I will then determine the issue on the papers.
Powell J
3
6
0