Ryan v Lobb - [2023] NZHC 1998

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-001591

[2023] NZHC 1998

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 July 2023

Appearances:

W M Patterson for First Plaintiff

H L Thompson for Second Plaintiff
R J Latton for First and Third Defendants
A A H Law (attendance excused) for Second Defendant

Judgment:

28 July 2023

JUDGMENT OF EDWARDS J

This judgment was delivered by me on 28 July 2023 at 3.30 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 1998 [28 July 2023]

[1] At [94] of my judgment dated 19 June 2023 (substantive judgment)1 I made the following orders:

(a)Declaring that the registered proprietors of the land in Identifier NA52A/1231, with the street address of 23 Orakei Road, Remuera (Property) do not owe any money or other obligation to the third defendant.

(b)Declaring that Mortgage Instrument 9977107.3 of which the third defendant is the registered mortgagee does not secure the repayment of any debt or the performance of any obligation whether of the registered proprietors of the Property or Mr Lobb or at all.

(c)The third defendant shall take all reasonable steps without delay to discharge the Mortgage pursuant to s 83 of the Property Law Act 2007.

(d)Leave is reserved to the receiver to seek further orders from the Court in the event a discharge of the Mortgage is not obtained within a reasonable time.

[2] Steps to register a discharge of the Mortgage have not been taken. Accordingly, on 3 July 2023, counsel for the receiver filed a memorandum seeking an order that WAG discharge the Mortgage within five working days of the grant of the order, failing which that the Registrar of this Court execute a discharge of the Mortgage on behalf of WAG.

[3] In the meantime, WAG filed a notice of appeal against that part of the substantive judgment relating to the Mortgage. An application for a stay pending the appeal was also filed. The stay application will be heard in the week of 7 August 2023.

[4]An order in the terms sought by the receiver in his memorandum was made in

Tietjens and Chatfield v Lake Terrace Opportunities Ltd and Anor.2 At that time, there

1 Ryan v Lobb [2023] NZHC 1518.
2 Tietjens and Chatfield v Lake Terrace Opportunities Ltd and Anor (unreported) HC Rotorua CIV- 2008-463-443, 24 December 2008.

was specific provision in s 3 of the Judicature Amendment Act 1910 to make an order directing another person to execute a conveyance. That section was repealed by s 182 of the Senior Courts Act 2016 and it was not replaced by an equivalent section in the new…

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 1998
Case: [2023] NZHC 1998
Decision Date: 28 July 2023

CaseChat Overview and Summary

In the case of Ryan v Lobb, the High Court of New Zealand was called upon to address the unresolved issue of a mortgage discharge on property located at 23 Orakei Road, Remuera. The original substantive judgment had declared that the mortgage secured by the third defendant, WAG Trustees (2020) Limited, did not secure any debt or obligation, and directed WAG to take steps to discharge the mortgage. Despite this direction, WAG had not taken any steps to discharge the mortgage, prompting the receiver to seek an order compelling WAG to discharge the mortgage within a specified timeframe or alternatively for the Registrar to execute the discharge on behalf of WAG. The central legal issue before the court was whether it had the inherent jurisdiction to compel the discharge of the mortgage under the circumstances presented.

The court found that while section 111 of the Property Law Act 2007 provided for the discharge of a mortgage by a court order, this section was limited to specific circumstances not applicable in this case. Consequently, the court turned to its inherent jurisdiction to address the situation. The court reasoned that exercising its inherent jurisdiction was appropriate given WAG's failure to act, the delays already experienced in the proceedings, and the need to give effect to the substantive judgment. The court also noted that such an order would align with the principle that "equity regards as done what should have been done." The court concluded that an immediate discharge order was preferable to one that required the Registrar of the High Court to act as an intermediary step.

The court ordered that the declaration made in the substantive judgment shall have effect as if it were a duly executed mortgage discharge instrument under section 83 of the Property Law Act 2007. However, the order would lie in Court pending the determination of WAG’s application for a stay of the substantive judgment pending appeal or any further order of the Court. This ensures that the stay application is heard and decided before the discharge order takes effect, thereby preserving the integrity of the appellate process.

Orders