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Ryan v Lobb

Ryan v Lobb

Case [2024] NZHC 1997 19 July 2024

Trustee Costs

Apportionment of Costs

Resettlement of Trusts

Contempt of Court

Receiver's Costs

Trusts & Equity

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1591

[2024] NZHC 1997

BETWEEN
VERENA COLLEEN RYAN

First Plaintiff

DIGBY JOHN NOYCE
Second Plaintiff

AND

STUART JAMES LOBB

First Defendant

LOCKHART TRUSTEE SERVICES NO. 56 LIMITED
Second Defendant

WAG TRUSTEES (2020) LIMITED

Third Defendant

Hearing: 26 February and 30 April 2024 (plus subsequent memoranda in May 2024)

Appearances:

L W Dixon for the First Plaintiff

H Thompson for the Second Plaintiff (appearance excused during hearing)
R Latton for the First Defendant
No appearance for the Second or Third Defendants

Judgment:

19 July 2024

JUDGMENT OF GAULT J

This judgment was delivered by me on 19 July 2024 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

RYAN v LOBB [2024] NZHC 1997 [19 July 2024]

TABLE OF CONTENTS

Introduction [1]

Factual background [12]

Hinton J’s substantive decision of 6 April 2023 [13]

Subsequent events [18]

Related costs judgments [37]

Receiver’s costs and apportionment sought [39]

The Court’s jurisdiction to apportion the receiver’s costs [48] Mr Stuart Lobb’s involvement in the steps causing the receiver’s costs [53] Whether Mr Lobb’s involvement can be attributed to the Lothbury
Trust in this resettlement context [73]

Conclusion on apportionment [77]

Other issues

Stakeholder Amount [79]

Ms Ryan’s outstanding costs [80]

The reasonableness of Lockhart’s costs [81] Result [82]

Costs [83]

Introduction

[1] This judgment addresses the apportionment of the costs of a Court-appointed receiver of family trust assets in the context of a long-running dispute following a relationship breakdown between the first plaintiff (Ms Ryan) and the first defendant (Mr Stuart Lobb).

[2] The apportionment issues arise on Ms Ryan’s application dated 6 November 2023, which sought orders:

(a)That the costs and disbursements (including solicitors’ costs and disbursements) of Mr Digby John Noyce1 (receiver) as receiver of the Lothbury Trust2 in the receivership be apportioned in such manner as the Court considers appropriate so as to:

(i)charge against the share to be retained within the Lothbury Trust after the resettlement contemplated by cl 2.5(3) of the trust deed (resettlement) on the trustees of the Verena Ryan Family Trust such amount or such proportion of his costs which, having regard to the conduct of Mr Stuart Lobb and parties associated with him, it would be inequitable to be borne by the trustees of the Verena Ryan Family Trust; and

(ii)charge the balance of his costs against the Lothbury Trust fund prior to the resettlement.

(b)Directing that the costs of and incidental to this application be charged against and deducted from the share of the Lothbury Trust remaining after the resettlement.

1 The second plaintiff.
2 On 27 July 2020, Edwards J removed the trustees of the Lothbury Trust (Ms Ryan, Mr Stuart Lobb and Lockhart Trustee Services No. 56 Ltd) and appointed the receiver in a separate proceeding: Lockhart Trustee Services No 56 Ltd v Ryan (as Trustee of Lothbury Trust) [2020] NZHC 1823 at [40]-[41].

[3] Ms Ryan’s…

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 Ryan v Lobb

Details

AGLC: Ryan v Lobb [2024] NZHC 1997
Case: [2024] NZHC 1997
Decision Date: 19 July 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Verena Colleen Ryan and Digby John Noyce, the second plaintiff, filed an application against Stuart James Lobb, the first defendant, Lockhart Trustee Services No. 56 Limited, and WAG Trustees (2020) Limited. The application sought to apportion the costs of a receiver of family trust assets, following a relationship breakdown between Ms Ryan and Mr Lobb. The apportionment issues arose from Ms Ryan's application dated 6 November 2023, which sought orders to charge the additional costs against Mr Lobb's share of the Lothbury Trust rather than the Lothbury Trust fund before distribution of 50 per cent of the funds to the Verena Ryan Family Trust. The receiver did not wish to incur further costs but broadly supported the application. The court considered that it was appropriate to attribute $572,370 of the receiver's costs to the Lothbury Trust's residual share, so as to determine the additional amount to be paid to the trustees of the Verena Ryan Family Trust and pay the same. The court also varied the 1 September 2023 order of Powell J and released the Stakeholder Amount to the Lothbury Trust. Furthermore, the court confirmed that the costs of $12,313 that Lockhart seeks under its former trustee's indemnity are reasonable and recoverable out of the assets of the Lothbury Trust. Finally, Ms Ryan is entitled to costs on her application. The court urged the parties to take a reasonable and proportionate approach to finalising costs.

Orders