Ryan v Lobb - [2022] NZHC 513

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-001591

[2022] NZHC 513

BETWEEN
VERENA COLLEEN RYAN

Plaintiff

AND

STUART JAMES LOBB

First Defendant

AND

LOCKHART TRUSTEE SERVICES NO. 56 LIMITED

Second Defendant

AND

PUBLIC TRUST

Non-Party

Hearing: On the papers

Counsel:

W M Patterson for Plaintiff

P A Fuscic for First Defendant
A A H Low for Second Defendant

Judgment:

18 March 2022

COSTS JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 18 March 2022 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

RYAN v LOBB (Costs) [2022] NZHC 513 [18 March 2022]

[1] This proceeding concerns the Lothbury Trust (the Trust) in respect of which all parties are former trustees and the plaintiff (Ms Ryan) and the first defendant (Mr Lobb) are beneficiaries.

[2] In a judgment of 27 August 2021, I determined an application by Mr Lobb for orders requiring Ms Ryan and the second defendant, Lockhart Trustee Services No. 56 Ltd (Lockhart), to provide tailored or particular discovery and that the Public Trust provide particular non-party discovery.1 Although I made discovery orders, I did not do so in the terms sought by Mr Lobb.

[3] This judgment concerns the issue of costs claimed by Lockhart, both in respect of the application and compliance with the order I made that it provide standard discovery.

Background

[4] Mr Lobb and Ms Ryan were married, but their marriage has been dissolved. Their separation has been bitter, resulting in much litigation which is ongoing.

[5] In this particular substantive proceeding, Ms Ryan has asked the Court to make a declaration as to the meaning of a resettlement clause in the trust deed establishing the Trust.

[6] At the time the proceeding was commenced, the defendants were, along with Ms Ryan, the trustees of the Trust. However, in separate proceedings, Lockhart applied to the Court for an order discharging it as a trustee. On 27 July 2020, Edwards J removed all of the trustees and appointed Digby Noyce as a receiver of the Trust’s assets.2

[7] Although no longer a trustee, and having no other interest in the litigation, Lockhart is still a party to this proceeding. Its position from the commencement of the proceeding has been that it will abide the decisions of the Court on all matters.

1 Ryan v Lobb [2021] NZHC 2219.
2 Lockhart Trustee Services No. 56 Ltd v Ryan [2020] NZHC 1823.

[8] As far as the discovery application is concerned, the narrative begins on 19 April 2021 when Mr Lobb’s solicitor, Mr Fuscic, wrote to Lockhart’s solicitor, Ms Low, asking her to identify what documents Lockhart had (and those it no longer had) relevant to the proceeding.

[9] On 29 April 2021, Ms Low responded to Mr Fuscic’s enquiry. She advised what documents Lockhart had handed over to the receiver, Mr Noyce, and what documents it was presently holding. In respect to…

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 [2022] NZHC 513
Case: [2022] NZHC 513
Decision Date: 18 March 2022

CaseChat Overview and Summary

Verena Colleen Ryan sued Stuart James Lobb and Lockhart Trustee Services No. 56 Limited in respect of the Lothbury Trust. The plaintiff and first defendant were beneficiaries of the Trust. The second defendant, which was no longer a trustee of the Trust, was still a party to the proceeding. The second defendant applied for costs of its compliance with a discovery order and for indemnity from the Trust’s assets. The plaintiff opposed the second defendant’s claim for indemnity on the basis that it should be borne by the first defendant. The first defendant opposed any order of costs against him personally or against the assets of the Trust. The court found that the second defendant was entitled to its actual and reasonable costs of complying with the discovery order, which shall be paid by the first defendant. The court found that the second defendant was also entitled to be indemnified from the Trust’s assets for its reasonable costs and expenses incurred in relation to the proceeding. The court reserved leave to determine the amount of such indemnity.

Orders