Ryan v Lobb - [2020] NZHC 3085

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1591

[2020] NZHC 3085

BETWEEN
VERENA COLLEEN RYAN

Plaintiff

AND

STUART JAMES LOBB

Defendant

LOCKHART TRUSTEE SERVICES NO.56 LIMITED

Second Defendant

Hearing: On the papers (telephone conference 8 September 2020)

Appearances:

WM Patterson for the Plaintiff Mr Lobb in person

Judgment:

20 November 2020

JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 20 November 2020 at 4pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Patterson Hopkins, Auckland Alexandra Low & Associates, Auckland
McMahon Butterworth Thompson, Auckland

Copy to:
SJ Lobb

Ryan v Lobb [2020] NZHC 3085 [20 November 2020]

[1] Mr Lobb applies for an order dismissing Ms Ryan’s proceeding, in which she seeks a declaration as to the meaning of certain provisions of a deed of trust of which Mr Lobb and Ms Ryan are beneficiaries. He also applies for an order for the return to him of certain documents and records that he says are in Ms Ryan’s control.

[2] Mr Lobb and Ms Ryan were married on 8 January 2000. They have two children, aged 18 and 19. Mr Lobb and Ms Ryan separated in or about October 2016, and their marriage has since been dissolved.

[3] On 17 June 2005, Mr Lobb and Ms Ryan settled a trust called the Lothbury Trust (“the Trust”). Mr Lobb and Ms Ryan were the first two trustees, together with the Public Trust. The Public Trust retired in 2015, and Lockhart Trustee Services No.56 Limited (Lockhart) was appointed as the independent trustee in its place.

[4] The assets of the Trust include the former family home in Remuera (known as “Lothbury”) and certain antique furniture, jewellery and watches.

[5] The Trust Deed for the Trust (the Trust Deed) required that the Trust have at least two trustees or a trustee corporation at all times, and the trustees were required to act unanimously.

[6] Mr Lobb and Ms Ryan were the appointed protectors of the Trust. In that capacity, they had the power to appoint and remove trustees. That power was required to be exercised by them jointly and unanimously.

[7] The discretionary beneficiaries of the Trust are Mr Lobb and Ms Ryan, and their children. The children are also the final beneficiaries of the Trust.

[8] Mr Lobb and Ms Ryan have been parties to a variety of legal proceedings since their separation, both in the Family Court and in this Court. One of the proceedings is the present proceeding, which was commenced by Ms Ryan in August 2019. In her statement of claim in this proceeding, Ms Ryan seeks a declaration as to the true construction of a clause in the Trust Deed relating to the re-settlement of trust assets in the event of separation.

[9] Mr Lobb filed two lengthy documents in response to Ms Ryan’s statement of claim. One of them was a statement of defence, and the other was…

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 [2020] NZHC 3085
Case: [2020] NZHC 3085
Decision Date: 20 November 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland registry, Verena Colleen Ryan filed a proceeding against Stuart James Lobb and Lockhart Trustee Services No.56 Limited, seeking a declaration as to the meaning of certain provisions of a deed of trust of which Lobb and Ryan are beneficiaries. Lobb filed an application to dismiss the proceeding and for the return of certain documents and records. The court was required to decide whether there was a binding arbitration agreement which covered the subject matter of the proceeding, whether Lobb had waived or otherwise lost his right to have the dispute arbitrated, whether Ryan was precluded from seeking the declaration order she seeks in this proceeding because of any failure to take the procedural steps required by cl3.7 of the Trust Deed, and whether the Court has jurisdiction to make the order sought by Lobb for the return of his records and documents. The court concluded that there was no binding arbitration agreement which covered the subject matter of the proceeding, and that Lobb had not waived or lost his right to have the dispute arbitrated. The court also found that Ryan was not precluded from seeking the declaration order she seeks in this proceeding because of any failure to take the procedural steps required by cl3.7 of the Trust Deed. Finally, the court refused Lobb's application for the return of records and documents. Lobb's application for an order dismissing or staying the proceeding was refused, and Ryan is entitled to costs. The Registrar is to convene a case management conference on the first practicable date after 1 February 2021, for the purpose of timetabling any interlocutory applications, fixing a close of pleadings date, and allocating a trial date for the hearing of the substantive proceeding.

Orders