Ryan v Lobb
[2023] NZHC 3239
•16 November 2023
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 PlaintiffAND
STUART JAMES LOBB
First Defendant
LOCKHART TRUSTEE SERVICES NO. 56 LIMITED
Second DefendantWAG 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 WAG explained there was some confusion about whether the injunction had remained in place. Through counsel, WAG and its directors “unreservedly” apologised to the Court “for acting in breach of the injunction”.
[8] These events were recorded in my minute dated 1 June 2023. I made timetabling orders in relation to the filing and service of memoranda relating to costs for these post-hearing events. No submissions have been received on behalf of any of the defendants to either claim.
Costs in relation to the Judgment
[9] Ms Ryan and the receiver seek schedule 2B costs under the High Court Rules 2016 for costs incurred in relation to the Judgment with one of the steps to be calculated on a 2C rather than 2B basis. Those steps are:
(a)Item 23 (filing notice of opposition) for Ms Ryan’s opposition to the application for a stay; and
(b)Item 22 (filing interlocutory application) for the receiver’s interlocutory application.
[10] Band B is used if a normal amount of time is considered reasonable for a step. Band C is appropriate when a comparatively large amount of time for a particular step is considered reasonable.2
[11] I consider 2C is appropriate in both instances. Ms Ryan swore an affidavit in response to the application by Mr Lobb for a stay of execution of the Judgment. That
2 High Court Rules 2016, r 14.5(2)(b) and (c).
affidavit referred to the history of the proceeding and annexed a large number of exhibits. An updating affidavit was also filed with the Court. Given the history of the proceedings, I consider comparatively more time for the preparation of the affidavits in opposition was reasonable in this case. I allow that step to be calculated on a 2C basis.
[12] I am satisfied that item 22 in the receiver’s application should also be calculated on a schedule 2C basis. In addition to the declaratory relief sought in respect of the mortgage, the interlocutory application also sought interim injunctive relief, the joinder of additional parties, and an order dispensing with the requirement for an undertaking as to damages. This relief was granted by Downs J on 4 May 2023. The preparation of the interlocutory application and the affidavit and memorandum in support involved increased complexity warranting an award of costs on a 2C basis for item 22.
[13] Both Ms Ryan and the receiver seek an award of disbursements in addition to costs.
[14]I allow the receiver’s disbursements as claimed.
[15] I allow Ms Ryan’s disbursements except for gown hire and taxis to the Court. I consider those costs to be part of the ordinary course of business for a solicitor who regularly appears in the Court. They are not costs specific to the proceeding, nor reasonably necessary for the conduct of the proceeding within the meaning of r 14.12(2) of the High Court Rules.
[16] Finally, I record that the costs and disbursements in relation to the Judgment shall be awarded against Mr Lobb and WAG (the first and third defendants) on a joint and several basis.
Post-hearing costs
[17] Ms Ryan and the receiver seek indemnity costs in relation to the post-hearing events which are recorded in my minute dated 1 June 2023. Ms Ryan seeks the sum of $3,596.25 plus GST. The receiver seeks the sum of $3,000.
[18] I am satisfied that the threshold for indemnity costs set out in r 14.6(4) is met in this case. WAG acted improperly by disobeying an order of the Court which prohibited steps being taken on the PLA Notice. Those steps were also taken despite Mr Warwick Lobb’s admission that the PLA Notice was deficient. The trespass notices served on counsel and on the second plaintiff, on a Sunday afternoon, contained unfounded and irrelevant allegations. They caused undue distress to Ms Ryan in this longstanding dispute and caused the receiver to incur further and unnecessary costs. The breach was flagrant and was neither adequately explained nor excused by confusion as to the correct position.
[19] Indemnity costs in favour of Ms Ryan and the receiver will be awarded against WAG. This sum will be plus GST for Ms Ryan on the basis that she is otherwise unable to recover the GST component of her legal costs.3
Result
[20]The costs applications are allowed.
[21]Ms Ryan is awarded the following costs:
(a)Scale costs in the sum of $12,906 plus disbursements in the sum of
$147.80. The first and third defendants are jointly and severally liable for these costs and disbursements.
(b)Indemnity costs in the sum of $3,596.25 plus GST. The third defendant is liable for these costs.
[22]The receiver is awarded the following costs:
(a)Scale costs in the sum of $13,384 plus disbursements in the sum of
$1,320.18. The first and third defendants are jointly and severally liable for these costs and disbursements.
3 New Zealand and Event Management v Worldwide NZ LLC [2016] NZCA 282 at [13].
(b)Indemnity costs in the sum of $3,000. The third defendant is liable for these costs.
Edwards J
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