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 hearing when key evidence going to the substance of an important part of their case has been disclosed so close to the commencement of the hearing. That late disclosure was by the Gilbert defendants or parties subject to their direction.

[7]        Following the telephone conference, but before the issuing of my subsequent minute, the Gilbert defendants filed their application for leave to appeal. Because the minute had already been drafted and signed, I issued it anyway. A copy is attached to this judgment.

Position of Gilbert defendants

[8]        In their application and in the accompanying memorandum of their counsel, Mr Johnson, the Gilbert defendants challenge the adjournment on the following bases:

1      Ryburn v Gilbert HC Hamilton CIV-2022-419-305, 17 October 2025 (Minute of van Bohemen J).

(a)the lack of a formal application from the plaintiffs to adjourn the hearing;

(b)the short space of time between receipt of an indication from the plaintiffs of their intention to seek an adjournment and the consequent lack of time for the Gilbert defendants to prepare their opposition;

(c)my allegedly placing undue weight on claimed prejudice to the plaintiffs if the trial commenced as scheduled when, on the Gilbert defendants’ view, the prejudice was in part caused by the plaintiffs and the application was made less than six working days before commencement of the hearing; and

(d)my failing to take into consideration the prejudice to the Gilbert defendants from a lengthy adjournment.

[9]        The Gilbert defendants say the proposed appeal is of great importance to them, given the prejudice they will suffer from the adjournment; that any further delay caused by the appeal is warranted in the circumstances and outweighed by the prejudice of a lengthy adjournment and that it is in the interests of justice to grant leave to appeal.

Analysis

[10]      As the Court of Appeal confirmed in Greendrake v District Court of New Zealand, the requirement for leave to appeal should serve as a filtering mechanism to ensure unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made.2

[11]      First among the considerations the Court endorsed as relevant on an application for leave to appeal is that a high threshold exists.

2      Greendrake v District Court of New Zealand [2020] NZCA 122 at [6]; citing Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].

[12]      It would be unusual for an interlocutory decision to adjourn a fixture on the request of the plaintiffs to a proceeding to meet that the threshold. Managing the Court schedule is part of the daily business of the Court and requires consideration of the interests of the parties to the proceeding in question as well as the interests of other parties with business before the Court.

[13]      The latter aspect is not something that should concern the Court of Appeal. As to the former aspect, absent manifest injustice, it is hard to see why the Court of Appeal should be troubled by reviewing an essentially administrative decision to adjourn a hearing. Nor should the Court of Appeal be concerned with a lack of formality in the application to adjourn, which is hardly unusual.

[14]      Having regard to other considerations endorsed by the Court of Appeal in Greendrake, the Gilbert defendants do not assert any error of law or fact. Their complaint relates to the exercise of a discretion, and the weight they say I gave to the prejudice to the plaintiffs and my asserted failure to consider the prejudice to the Gilbert defendants.

[15]      In fact, as my minute of 17 October 2025 records, I took into consideration Mr Johnson’s submission that adjournment would cause prejudice to the Gilbert defendants. So, that aspect of the complaint is also essentially one of weight.

[16]      Again, absent manifest injustice, matters of weight in an administrative decision would seem unlikely to meet the high threshold for leave to appeal.

[17]      The nature of the asserted prejudice to the Gilbert defendants is not stated in the application for leave or in Mr Johnson’s memorandum. The only information before the Court on the nature of the prejudice—and leaving aside the fact there no actual evidence on the point—is what Mr Johnson said at the telephone conference on 17 October 2025 and in his memorandum in support of the application for leave. In summary, that was that adjournment would prevent the Gilbert defendants from getting on with their lives and there would be wasted costs in preparing for imminent trial.

[18]      Given that the proceeding has been on foot since October 2022, it is difficult to see that a further delay of what could be another two years, could be said to cause significant additional prejudice to the Gilbert defendants personally. Inevitably, there will be some duplication in having to prepare again for the hearing. However, much of the detailed preparation should not have to be repeated.

[19]      On the other hand, to require the plaintiffs to proceed without an opportunity to analyse and consider evidence concerning the provenance of documents that are at the heart of their first cause of action could well cause significant prejudice.

[20]      In addition, I am not satisfied the interests of justice would be met by granting leave to appeal in circumstances where primary responsibility for the late disclosure of undoubtedly relevant documents lies with the Gilbert defendants and other parties under their direction.

[21]      For these reasons, I am satisfied the application for leave to appeal falls well short of meeting the high threshold for leave to be granted.

[22]Accordingly, I decline the application for leave to appeal.

G J van Bohemen J