Ryan v Lobb - [2024] NZHC 386

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1591

[2024] NZHC 386

BETWEEN
VERENA COLLEEN RYAN

Plaintiff

AND

STUART JAMES LOBB

First Defendant

LOCKHART TRUSTEE SERVICES NO.56 LIMITED

Second Defendant

Hearing: On the papers

Counsel:

W M Patterson and L W Dixon for Plaintiff

No submissions received by or on behalf of Defendants

Judgment:

29 February 2024

JUDGMENT OF HINTON J

[Re: Costs]

This judgment was delivered by me on 29 February 2024 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:
Patterson Hopkins (Auckland) for Plaintiff
McVeagh Fleming (Auckland) for First Defendant KP Legal (Auckland) for Second Defendant

RYAN v LOBB [2024] NZHC 386 [29 February 2024]

[1] On 6 April 2023 I gave judgment as to the construction and implementation of a resettlement clause in a family trust deed.1 That judgment was one of many in a series of proceedings between Ms Ryan and Mr Lobb following the breakdown of their marriage and eventual separation.

[2]I made the following orders:2

1.Vesting Mr Lobb’s Rolex watch in him and Ms Ryan’s Rolex watch and her jewellery in her.

2.Directing that an amount equal to one-half of the value of the antique furniture be transferred from the assets of the Lothbury Trust to the Verena Ryan Family Trust and the value be set at $55,200 (the original sale price) or, if Mr Lobb elects (by written notice to the receiver), the value established in a revised valuation by Webbs, the original valuers.

3.Mr Lobb and others occupying 23 Orakei Road, Remuera are to provide vacant possession to the receiver within two months of the date of this judgment.

4.The receiver is directed to sell 23 Orakei Road at such a price and upon such terms as he thinks fit.

5.50 per cent of the sum reached by deducting from the gross sale price only the costs of sale, the receiver’s costs and the sum of $1.4m, is to be paid to the Verena Ryan Family Trust.

[3] All orders were to be implemented without delay.3 I held that Ms Ryan, as the successful party, was entitled to costs.4

[4] Ms Ryan has incurred costs and disbursements totalling $530,758.43 (including GST) in relation to this proceeding.

[5] The proceeding was properly commenced by Ms Ryan as a trust beneficiary as Mr Lobb had refused to allow the trustees, of whom he was one, to engage in a process for division following separation, provided for by cl 2.5(3) of the Lothbury Trust deed. Under Re Buckton,5 Ms Ryan’s costs would ordinarily be paid from the trust fund. However, the net effect of the judgment, summarised in order five above, was that 50

1 Ryan v Lobb [2023] NZHC 689.
2 At [176].
3 At [180].
4 At [181].
5 Re Buckton [1907] 2 Ch 406 (Ch) at 413–417; cited in Kain v Hutton [2022] NZCA 239 at [12].

per cent of the…

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 386
Case: [2024] NZHC 386
Decision Date: 29 February 2024

CaseChat Overview and Summary

The High Court of New Zealand addressed a costs application by Verena Colleen Ryan against Stuart James Lobb in the case of Ryan v Lobb. The dispute arose from the breakdown of Ryan and Lobb's marriage and the subsequent division of family trust assets. The court had already ruled on the construction and implementation of a resettlement clause in the family trust deed, which led to several orders including the vesting of specific assets in Ryan and Lobb, the transfer of funds, and the sale of a property. Ryan, as the successful party, sought costs from Lobb. The total costs incurred by Ryan amounted to $530,758.43, which Ryan argued should be borne by Lobb on an indemnity basis due to his conduct during the proceedings.

The legal issues centered on whether Lobb's conduct justified the award of indemnity costs and, if so, the appropriate quantum of those costs. The court considered whether Lobb's actions met the criteria for indemnity costs under the High Court Rules, which include vexatious, frivolous, improper, or unnecessary conduct. The court found that Lobb's conduct met these criteria, as he unnecessarily prolonged the proceedings, made unsupported and inappropriate submissions, and engaged in conduct that caused significant delay and increased costs. The court awarded indemnity costs, determining that Lobb's actions warranted such an award.

The court calculated the indemnity costs based on a reasonable allocation of actual costs, considering the time taken, complexity of the work, and applicable hourly rates. The court found that while the total legal fees claimed were $513,130, the reasonable costs on an indemnity basis amounted to $444,135. Additionally, the court allowed for $17,518.43 in disbursements. The court ordered that $76,969.50 plus a filing fee of $110 be paid from the trust fund before resettlement, while the remaining indemnity costs and disbursements were to be borne by Lobb. The court reserved the issue of whether Lobb's share of the trust fund should cover these sums.

Orders