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Ryan v Lobb

Ryan v Lobb

Case [2023] NZHC 689 6 April 2023

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1591

[2023] NZHC 689

BETWEEN
VERENA COLLEEN RYAN

Plaintiff

AND

STUART JAMES LOBB

First Defendant

LOCKHART TRUSTEE SERVICES NO.56 LIMITED

Second Defendant

Hearing: 13 and 14 June, 4 October and 7 November 2022

Counsel:

W M Patterson and L W Dixon for Plaintiff

P A Fuscic and K L Thompson for First Defendant (on 13 and 14 June 2022)

First Defendant in Person on 4 October and 7 November 2022 A Low for Second Defendant (excused bar a brief attendance on 4 October 2022)

Judgment:

6 April 2023

JUDGMENT OF HINTON J

This judgment was delivered by me on 6 April 2023 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:
Patterson Hopkins (Auckland) for Plaintiff
McVeagh Fleming (Auckland) for First Defendant KP Legal (Auckland) for Second Defendant

RYAN v LOBB [2023] NZHC 689 [6 April 2023]

TABLE OF CONTENTS

Factual background [10]

Changes in trusteeship  [43]
Lothbury Management Limited (LML)  [45]
Post-separation  [49]

Procedural history [55]

Other proceedings between the parties [66]

Procedural and other issues raised by Mr Lobb [70]

Clause 2.5 of the trust deed [79]

The parties’ positions on clause 2.5(3) [80]

Extent of jurisdiction

Pleadings [86]

Ability of Court to exercise the trustees’ powers [99]

Relevant legal principles on construction of trust deeds [110]

Interpretation and application of clause 2.5(3)

Contribution of assets/gifting by the settlors [113]

Renovation work [140]

Other claimed contributions by Mr Lobb

Mr Lobb’s work on Orakei Road  [145]
Payment of outgoings post-separation  [150]
Contributions by third parties  [152]
Negative contributions  [153]

Claim to resulting trust in favour of Mr Lobb’s father [154]

Liabilities [165]

Conclusion [167]

Orders [176]

Costs [181]

APPENDIX A APPENDIX B APPENDIX C

[1] This case involves interpretation and application of a resettlement clause in a family trust deed.

[2] The parties were married in January 2000 and separated in October 2016. The bulk of their property had been transferred to a trust settled in 2005 (the Lothbury Trust).

[3] The trust deed made express provision for the breakdown of their relationship. Clause 2.5(3) provided that:

If the Settlors separate (or their marriage is legally dissolved), either Settlor may give the Trustees written notice requiring them to resettle (on new Trusts acceptable to the Settlor who has given notice) such part of the Trust assets as the Trustees consider fair and equitable having regard to the respective contributions of the Settlors (whether by gifting, inheritance or otherwise) to the total assets of the Trust.

[4] In September 2017, Ms Ryan gave notice to the trustees under cl 2.5(3) requiring resettlement of half of the trust assets on a new trust she had settled (the Verena Ryan Family Trust). That was strongly opposed by Mr Lobb.

[5] In October 2017, Ms Ryan requested arbitration in accordance with the terms of the trust deed. Mr Lobb rejected this request, asking instead that the…

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 689
Case: [2023] NZHC 689
Decision Date: 6 April 2023

CaseChat Overview and Summary

This case involved an interpretation and application of clause 2.5(3) in a family trust deed between Verena Colleen Ryan and Stuart James Lobb. The trust deed made express provision for the breakdown of their relationship. Clause 2.5(3) provided that if the Settlors separate (or their marriage is legally dissolved), either Settlor may give the Trustees written notice requiring them to resettle (on new Trusts acceptable to the Settlor who has given notice) such part of the Trust assets as the Trustees consider fair and equitable having regard to the respective contributions of the Settlors to the total assets of the Trust. In September 2017, Ms Ryan gave notice to the trustees under cl 2.5(3) requiring resettlement of half of the trust assets on a new trust she had settled. That was strongly opposed by Mr Lobb. In August 2019 Ms Ryan filed this proceeding seeking a declaration as to the construction of cl 2.5(3). The Court held that the clause was directed primarily at the parties’ contributions as attributed to them in transfers to the trust, which in this case was equal shares of all assets transferred, or forgiveness of the related debts. The relevant contributions of the parties to be taken into account under cl 2.5(3) are their financial contributions to the assets during the relationship being the sums gifted as shown in the trust records. Those contributions are equal. There are no other relevant contributions of the parties to be taken into account. The Court made orders as follows: 1. Vesting Mr Lobb's Rolex watch in him and Ms Ryan's Rolex watch and her jewellery in her. 2. Directing that an amount equal to one-half of the value of the antique furniture be transferred from the assets of the Lothbury Trust to the Verena Ryan Family Trust and the value be set at $55,200 (the original sale price) or, if Mr Lobb elects (by written notice to the receiver), the value established in a revised valuation by Webbs, the original valuers. 3. Mr Lobb and others occupying 23 Orakei Road, Remuera are to provide vacant possession to the receiver within two months of the date of this judgment. 4. The receiver is directed to sell 23 Orakei Road at such a price and upon such terms as he thinks fit. 5. 50 per cent of the sum reached by deducting from the gross sale price only the costs of sale, the receiver's costs and the sum of $1.4m, is to be paid to the Verena Ryan Family Trust. Ms Ryan is entitled to costs.

Orders