Ryan v Lobb - [2023] NZHC 2452

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-001591

[2023] NZHC 2452

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: 24 August 2023

Appearances:

No appearance by or on behalf of the First Plaintiff H L Thompson for Second Plaintiff

R J Latton for First and Third Defendants
No appearance by or on behalf of the Second Defendant

Judgment:

1 September 2023

JUDGMENT OF POWELL J

This judgment was delivered by me on 1 September 2023 at 4.30 pm pursuant to
r 11.5 of the High Court Rules

…………………..
Registrar/Deputy Registrar

Solicitors/Counsel:
Patterson Hopkins, Auckland
McMahon Butterworth Thompson, Auckland

VERENA COLLEEN RYAN v STUART JAMES LOBB [2023] NZHC 2452 [1 September 2023]

[1] The third defendant, WAG Trustees (2020) Limited (“WAG”), has applied for a stay of execution of part of a judgment of Edwards J issued on 19 June 2023 (“the 19 June 2023 judgment”).1

Background to the stay application

[2] The background to the 19 June 2023 judgment was summarised by Edwards J in the following terms:2

[1] The primary asset of the Lothbury Trust [“Trust”] is the former family home located in Remuera, Auckland [“Property”]. Mr Lobb lives in the Property with his father and daughter.

[2] A receiver was appointed to the Trust in July 2020 and all three trustees were removed. A short time later, WAG Trustees (2020) Ltd (WAG) took assignment of a mortgage from Westpac Bank (Westpac) registered over the Property [“Mortgage”]. WAG is the sole trustee of a family trust associated with Mr Lobb’s father.

[3] WAG says the Mortgage secures a loan made to Mr Lobb personally which was used to discharge a debt owed to Westpac by Mr Lobb and Ms Ryan. The receiver disputes that position, contending that the Mortgage does not secure any obligation at all.

[4] By judgment dated 6 April 2023 [“the judgment of Hinton J”], this Court ordered Mr Lobb to give vacant possession of the Property and directed the receiver of the Trust to sell it. Directions regarding the distribution of the sale proceeds were also made, and leave was reserved to the receiver to seek further orders, including in relation to the Mortgage.

[5]There are two applications determined in this judgment:

(a) An application by the receiver of the Trust for declarations and an order discharging the Mortgage.

(b) An application by Mr Lobb to stay the [judgment of Hinton J] pending determination of an appeal.

(Footnotes omitted).

[3] Having considered the issues Edwards J confirmed that the registered proprietors of the Property did not owe any money or other obligations to WAG and the mortgage held by WAG “does not secure the repayment of any debt or the performance of any obligation whether of the registered proprietors of the Property or

1 Ryan v Lobb [2023] NZHC 1518

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 2452
Case: [2023] NZHC 2452
Decision Date: 1 September 2023

CaseChat Overview and Summary

The case involves Verena Colleen Ryan and Digby John Noyce as plaintiffs against Stuart James Lobb, Lockhart Trustee Services No. 56 Limited, and WAG Trustees (2020) Limited as defendants. The dispute centres around a property in Remuera, Auckland, and the legal rights over a mortgage held by WAG Trustees on this property. The court was required to decide on two primary legal issues: whether WAG Trustees' mortgage over the property secured any debt or obligation, and if a stay of execution of the June 19, 2023, judgment should be granted pending an appeal by WAG Trustees.

The court's reasoning revealed that the registered proprietors of the property did not owe any money or obligations to WAG Trustees, and thus, the mortgage held by them did not secure the repayment of any debt or performance of any obligation. The court further directed that Mr. Lobb take steps to discharge the mortgage and dismissed Mr. Lobb's application for a stay of the earlier judgment. Following the court's order, no steps were taken to register a discharge of the mortgage, leading the receiver to seek an order for WAG Trustees to discharge the mortgage within a specified timeframe. The court subsequently made an order that effectively discharged the mortgage on behalf of WAG Trustees, pending the outcome of their appeal against the earlier judgment.

In dismissing WAG Trustees' application for a stay, the court found no basis for altering the orders proposed by the receiver. It was established that WAG Trustees' position was adequately protected by the receiver's proposed orders. Moreover, the court found no jurisdictional basis to withhold money from Ms. Ryan's share, as the amendment sought by WAG Trustees did not relate to the June 19, 2023, judgment and was an attempt to alter a previous judgment to which WAG Trustees were not a party. The court also concluded that there was no justification to alter the order made by Hinton J regarding the distribution of amounts payable to Ms. Ryan.

The final orders included dismissing the application for a stay, directing WAG Trustees to pay costs on the application, and confirming the receiver's proposed orders regarding the payment to WAG Trustees and the withholding of certain sums pending the outcome of the appeal. The court also confirmed timetable orders for further proceedings concerning Mr. Lobb.

Orders