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Ryan v Lobb

Ryan v Lobb

Case [2023] NZHC 1518 19 June 2023

Adverse Possession

Mortgages & Security Interests

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-001591

[2023] NZHC 1518

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 May 2023

Appearances:

W M Patterson for Plaintiffs

H L Thompson for Second Plaintiff
R J Latton for First and Third Defendants

Judgment:

19 June 2023

JUDGMENT OF EDWARDS J

This judgment was delivered by me on 19 June 2023 at am/pm.

Registrar/Deputy Registrar

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

RYAN v LOBB [2023] NZHC 1518 [19 June 2023]

[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 (Judgment), this Court ordered Mr Lobb to give vacant possession of the Property and directed the receiver of the Trust to sell it.1 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:2

(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 pending determination of an appeal.

Factual background

[6] The relevant factual background is comprehensively set out in the Judgment.3 What follows is a summary of the key facts relevant to the current application.

1      Ryan v Lobb [2023] NZHC 689 [Judgment].
2      Mr Latton represents Mr Lobb in relation to the stay application,   and   Mr Lobb   and WAG Trustees (2020) Ltd in relation to the mortgage application.
3      Judgment, above n 1, at [10]–[44].

[7] Mr Lobb and Ms Ryan were married on 8 January 2000. There are two children of their marriage.

[8] Mr Lobb and Ms Ryan purchased the Property in their personal names in May 2003. The purchase price was funded by cash and a Westpac loan in Mr Lobb and Ms Ryan’s personal names secured by a mortgage over the Property (mortgage 5591907.4).

[9] The Trust was settled on 17 June 2005. Mr Lobb, Ms Ryan and the Public Trust were trustees. The discretionary beneficiaries were…

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 1518
Case: [2023] NZHC 1518
Decision Date: 19 June 2023

CaseChat Overview and Summary

The proceeding was commenced by Verena Ryan, with Digby Noyce joining as a second plaintiff. The defendants were Stuart Lobb, Lockhart Trustee Services No. 56 Limited, and WAG Trustees (2020) Limited. The primary asset of the Lothbury Trust is the former family home in Remuera, Auckland. The receiver of the Trust seeks declarations that the registered proprietors of the Property do not owe any money or obligation to WAG and that the Mortgage does not secure the repayment of any debt or performance of any obligation. Lobb applies to stay the Judgment pending determination of his appeal.

The court found that the Mortgage does not secure WAG’s loan to Lobb or any other obligations of the registered proprietors or any other person. The court made orders declaring that the registered proprietors do not owe any money or obligation to WAG and that the Mortgage does not secure the repayment of any debt or performance of any obligation. The court also ordered WAG to take all reasonable steps to discharge the Mortgage. The court dismissed Lobb’s application for a stay, finding that the negative impact on Ryan, the strength of the appeal, and the overall balance of convenience and interests of justice did not favour a stay.

Orders