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Ryan v Lobb

Ryan v Lobb

Case [2021] NZHC 3294 3 December 2021

Jurisdiction

Limitation Periods

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Discovery & Disclosure

Res Judicata

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-2019-404-001591

[2021] NZHC 3294

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:

3 December 2021

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 3 December 2021 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

RYAN v LOBB [2021] NZHC 3294 [3 December 2021]

[1] On 27 August 2021, I issued a judgment in respect of an application by the first defendant (Mr Lobb) for orders requiring the plaintiff (Ms Ryan) and the second defendant (Lockhart) to provide tailored discovery, and that the non-party (Public Trust) provide particular non-party discovery.1 I did not make tailored discovery orders in the terms sought by Mr Lobb. I ordered the parties to provide standard discovery and that Public Trust was to provide particular discovery.

[2] Mr Lobb considers I was wrong not to order tailored discovery in the terms he sought. He seeks leave to appeal to the Court of Appeal.2 In an amended application he applies, in the alternative, under r 7.49 of the High Court Rules 2016, for an order varying or rescinding the discovery orders and substituting orders for tailored discovery in substantially the same terms as he previously sought.

[3]Mr Lobb’s application is opposed by Ms Ryan.

[4] Consistent with its stance throughout this proceeding, Lockhart abides the decision of the Court.

[5]Mr Lobb’s application has been dealt with on the papers.

[6] There are also issues of costs outstanding in respect of Mr Lobb’s discovery application.

Leave to appeal

[7]Section 56(3) and (4) of the Senior Courts Act 2016 relevantly provide:

56 Jurisdiction
…

(3)No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.

1 Ryan v Lobb [2021] NZHC 2219.
2 Senior Courts Act 2016, s 56(3).

(4)Any party to any proceedings may appeal without leave to the Court of Appeal against any order or decision of the High Court~~---~~

(a)striking out or dismissing the whole or part of a proceeding, claim, or defence; or

(b)granting summary judgment.

[8] The principles that apply to an application for leave to appeal under s 56(3) are set out by the Court of Appeal in Greendrake v District Court of New Zealand.3 There, the High Court had made an order for joinder of an additional respondent. An application for leave…

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 [2021] NZHC 3294
Case: [2021] NZHC 3294
Decision Date: 3 December 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Associate Judge Paulsen heard an application for leave to appeal from a decision in Ryan v Lobb. The case concerns a trust established by the parties during their marriage, and the meaning of a clause in the trust deed relating to the resettlement of trust assets in the event of separation or divorce. The first defendant, Mr Lobb, sought tailored discovery of a wide range of documents, which was opposed by the plaintiff, Ms Ryan. The court ordered standard discovery and particular discovery from the non-party, Public Trust. Mr Lobb now seeks leave to appeal the discovery order and also seeks to vary or rescind the order under rule 7.49 of the High Court Rules.

The court considered the principles for granting leave to appeal under section 56 of the Senior Courts Act 2016, which require the applicant to identify an arguable error of law or fact, demonstrate that the alleged error is of general or public importance, and show that the circumstances warrant incurring further delay. The court found that none of the alleged errors of law identified by Mr Lobb were of public or general importance, nor were they of sufficient significance to the parties' interests in the proceeding. The court also noted that the circumstances did not warrant further delay, given the history of protracted disputes between the parties.

The court further considered Mr Lobb's application to vary or rescind the discovery order under rule 7.49. The court found that the application was out of time and that no satisfactory explanation for the failure to apply timeously was provided. The court also did not accept any of the matters relied upon by Mr Lobb as justification for varying or rescinding the discovery orders. The court found that the discovery orders were effectively spent and that no purpose would be served in revoking them.

Finally, the court considered the costs associated with Mr Lobb's discovery application. The court found that costs between Ms Ryan and Mr Lobb should be reserved pending the final determination of the proceeding, but that Lockhart's claim for costs should be decided on the papers. The court awarded costs to Ms Ryan on a 2B basis for the application for leave to appeal and to vary or rescind the discovery order, plus reasonable disbursements.

Orders