Ryburn v Gilbert - [2025] NZHC 3124

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-000305

[2025] NZHC 3124

UNDER Part 18 of the High Court Rules 2016, Administration Act 1969, Trustee Act 1956 and Trusts Act 2019

IN THE MATTER

of the Estate of William Montague Gilbert

BETWEEN

JENNIFER JOY RYBURN

First Plaintiff

PEGGY EILEEN LANGLANDS

Second Plaintiff

MARIANNE JEANETTA WILDERMOTH

Third Plaintiff

BERNARD JOHN GILBERT

Fourth Plaintiff

AND

RICHARD MONTAGUE GILBERT

as executor and trustee of the Estate of WILLIAM MONTAGUE GILBERT

First Defendant

continued overpage

On the papers

Counsel:

C T Gudsell KC and J K Gilby-Todd for the Plaintiffs

J W A Johnson, T M Makgill and P J O’Boyle for the First, Fourth, Seventh and Eighth Defendants (the Gilbert Defendants) V S Wethey for the Third and Sixth Defendants

No appearances for the Second and Fifth Defendants (abiding Court’s decision)

Judgment:

20 October 2025

JUDGMENT OF VAN BOHEMEN J

RYBURN v GILBERT [2025] NZHC 3124 [20 October 2025]

This judgment was delivered by me on 20 October 2025 at 3 pm Pursuant to Rule 11.5 High Court Rules

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

Counsel/Solicitors:
C T Gudsell KC, Hamilton
Fergusson Bhullar & Scott Lawyers, Taumarunui J W A Johnson | P J O’Boyle, Auckland
Lewis Lawyers, Cambridge
Fee Langstone, Auckland Copy to: G M Hobbs

GARY MALCOLM HOBBS as a former executor and trustee of the Estate of WILLIAM MONTAGUE GILBERT

Second Defendant

REDOUBT TRUSTEES LIMITED

as executor and trustee of the Estate of WILLIAM MONTAGUE GILBERT

Third Defendant

RICHARD MONTAGUE GILBERT

as trustee of the GILBERT FAMILY TRUST Fourth Defendant

GARY MALCOLM HOBBS as a former trustee of the GILBERT FAMILY TRUST Fifth Defendant

REDOUBT TRUSTEES LIMITED

as trustee of the GILBERT FAMILY TRUST Sixth Defendant

RICHARD MONTAGUE GILBERT, RICHARD LYLE GILBERT and

G W TRUSTEES MOERANGI LIMITED

as trustees of the MOERANGI LANDS TRUST

Seventh Defendants

RICHARD MONTAGUE GILBERT

Eighth Defendant

[1] The first, fourth, seventh and eighth defendants (the Gilbert defendants) seek leave to appeal my decision of 17 October 2025 to adjourn the substantive hearing of this proceeding, which had been set down to commence on 28 October 2025.

[2] The application for leave to appeal is opposed by the plaintiffs who, in their notice of opposition and in the memorandum of their counsel, say I properly exercised my discretion in determining it was in the interests of justice to adjourn the hearing.

[3] Counsel for the third and sixth defendants have also filed a memorandum advising their clients’ preference is not to revisit the adjournment decision.

[4] Given the imminence of the scheduled hearing date, I have decided the application on the papers and without a further hearing.

Background

[5] At a telephone conference on 17 October 2025, I adjourned the substantive hearing set down to commence on 28 October 2025.1

[6] Briefly, I adjourned the hearing because I was satisfied it would not be consistent with the interests of justice to require the plaintiffs to proceed to a substantive…

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.

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Details

Case: [2025] NZHC 3124
Decision Date: 20 October 2025

CaseChat Overview and Summary

The case of Ryburn v Gilbert involves the plaintiffs Jennifer Joy Ryburn, Peggy Eileen Langlands, Marianne Jeanetta Wildermoth, and Bernard John Gilbert challenging the decision of the High Court to adjourn a substantive hearing in relation to the Estate of William Montague Gilbert. The first, fourth, seventh, and eighth defendants, collectively referred to as the Gilbert defendants, sought leave to appeal the adjournment decision. The plaintiffs opposed the appeal, arguing that the adjournment was properly exercised in the interests of justice. Additionally, the third and sixth defendants expressed their preference against revisiting the adjournment decision.

The central legal issue in this case was whether the High Court's decision to adjourn the hearing was correct and if the Gilbert defendants had a valid reason to seek leave to appeal. The Gilbert defendants argued that the adjournment lacked a formal application, provided insufficient time to prepare opposition, and placed undue weight on the prejudice to the plaintiffs. They also claimed that the judge failed to consider the prejudice they would suffer from the lengthy adjournment. The plaintiffs maintained that the late disclosure of key evidence by the Gilbert defendants justified the adjournment, and that the judge appropriately exercised discretion in the matter.

The court assessed the application for leave to appeal, considering the high threshold required for such appeals, as established in Greendrake v District Court of New Zealand. The court found that the Gilbert defendants did not assert any error of law or fact, but rather complained about the exercise of discretion and the weight given to the parties' prejudice. The judge acknowledged the submissions regarding the Gilbert defendants' prejudice but emphasised that the late disclosure of relevant documents was the responsibility of the Gilbert defendants. Given the significant impact of the late disclosure on the plaintiffs' ability to prepare for the trial, the court concluded that the adjournment decision was justified. Consequently, the application for leave to appeal was declined, and the adjournment remained in place.

Orders