Ryan v Lobb - [2023] NZHC 3239

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-001591

[2023] NZHC 3239

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: [On the Papers]

Appearances:

W M Patterson for First Plaintiff

H L Thompson for Second Plaintiff

R J Latton for First and Third Defendants A A H Low for Second Defendant

Judgment:

16 November 2023

JUDGMENT OF EDWARDS J

[Costs]

This judgment was delivered by me on 16 November 2023 at 2.45 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Patterson Hopkins, Auckland
McMahon Butterworth Thompson, Auckland R L Latton, Auckland
A A H Low, Auckland

RYAN v LOBB [2023] NZHC 3239 [16 November 2023]

[1] This judgment concerns claims by the first plaintiff (Ms Ryan) and the second plaintiff (Mr Noyce, the receiver) for costs following my judgment dated 19 June 2023 (Judgment) and post hearing developments recorded in my minute dated 1 June 2023.1

Background

[2]The Judgment determined two applications:

(a)An application by the receiver of the Trust for declarations and an order discharging the mortgage registered against the Property (as defined in the Judgment);

(b)An application by Mr Lobb to stay the Judgment pending determination of an appeal.

[3] The receiver’s application was granted, and Mr Lobb’s application for a stay was dismissed. I ruled that the receiver and Ms Ryan were both entitled to costs and urged the parties to endeavour to reach agreement. Unfortunately, costs have not been agreed.

[4] Following the hearing, but before the Judgment was issued, Mr Blair Lobb (Mr Lobb’s brother, and the son of Mr Warwick Lobb) purported to act on behalf of the third defendant, WAG Trustees (2020) Ltd (WAG) by issuing trespass notices to the registered proprietors of the Property, including Ms Ryan.

[5] It appeared from the trespass notices that WAG had purported to take possession of the Property on the basis of a Property Law Act 2007 notice issued by WAG on 8 April 2023 (PLA Notice). The receiver had contended that the PLA Notice was deficient and Mr Warwick Lobb had accepted those deficiencies in an affidavit sworn on behalf of WAG in the proceeding.

[6] As recorded in my minute of 29 May 2023, the actions of WAG were also in breach of an injunction granted by Downs J on 4 May 2023. That injunction

1 Ryan v Lobb [2023] NZHC 1518; Ryan v Lobb HC AK CIV-2019-404-001591 [telephone conference minute (No 2) of Edwards J].

prevented WAG from taking any steps under the PLA Notice, or under the mortgage, or both, pending further order of the Court.

[7] I convened a telephone conference on 29 May 2023. Following that telephone conference, counsel for WAG filed a memorandum confirming the withdrawal of all notices issued by it pursuant to the PLA Notice. Counsel for…

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 [2023] NZHC 3239
Case: [2023] NZHC 3239
Decision Date: 16 November 2023

CaseChat Overview and Summary

In the case of Ryan v Lobb, the High Court of New Zealand was called upon to determine costs associated with the proceedings between Verena Colleen Ryan and Digby John Noyce, on one side, and Stuart James Lobb, Lockhart Trustee Services No. 56 Limited, and WAG Trustees (2020) Limited, on the other. The central dispute involved claims for costs following a previous judgment and post-hearing developments. The court had to decide on the allocation of costs for the initial judgment and additional costs incurred due to the post-hearing actions of WAG Trustees, specifically their disobedience of a court injunction and issuance of trespass notices.

The legal issues before the court were whether the costs incurred during the judgment and post-hearing developments were properly claimed and whether they should be awarded on a scale basis or as indemnity costs. The court also had to determine the appropriate defendant against whom these costs should be awarded. The receiver and Ms Ryan argued for costs under schedule 2B and 2C of the High Court Rules 2016, along with additional disbursements. They contended that the post-hearing events warranted indemnity costs due to the flagrant breach of the court’s injunction by WAG Trustees.

Edwards J ruled that both Ms Ryan and the receiver were entitled to costs and disbursements. The court found that certain steps in the proceedings warranted costs on a 2C basis due to the complexity and history of the case. Regarding the post-hearing events, the court held that WAG Trustees’ actions were a flagrant breach of the court’s order, and thus, indemnity costs were justified. The court awarded costs and disbursements against Mr Lobb and WAG on a joint and several basis for the initial judgment and solely against WAG for the post-hearing events. The specific amounts awarded were detailed, with Ms Ryan receiving scale costs and disbursements, as well as indemnity costs, and the receiver receiving similar awards.

Orders