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Ryburn v Gilbert

Ryburn v Gilbert

Case [2025] NZHC 2013 24 July 2025

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-000305

[2025] NZHC 2013

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; and the Gilbert Family Trust

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

.../intituling cont over

Hearing: 14 July 2025

Counsel:

CT Gudsell KC for Plaintiffs

JWA Johnson for First, Fourth, Seventh and Eighth Defendants

Judgment:

24 July 2025

JUDGMENT OF DOWNS J

This judgment was delivered by me on Thursday, 24 July 2025 at 3 pm
pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

RYBURN v GILBERT [2025] NZHC 2013 [24 July 2025]

GARY MALCOLM HOBBS as 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 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

The issues

[1] This judgment addresses a strike-out application and an application for summary judgment.1 The latter requires leave, about which more later. Related principle is (well) settled but important:2

A striking-out application proceeds on the assumption that the facts pleaded in the statement of claim are true. That is so even although they are not or may not be admitted. It is well settled that before the Court may strike out proceedings the causes of action must be so clearly untenable that they cannot possibly succeed (R Lucas & Son (Nelson Mail) Ltd v O'Brien [1978] 2 NZLR 289 at pp 294 – 295; Takaro Properties Ltd (in receivership) v Rowling [1978] 2 NZLR 314 at pp 316 – 317); the jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material (Gartside v Sheffield, Young & Ellis [1983] NZLR 37 at p 45; Electricity Corporation Ltd v Geotherm Energy Ltd [1992] 2 NZLR 641); but the fact that applications to strike out raise difficult questions of law, and require extensive argument does not exclude jurisdiction (Gartside v Sheffield, Young & Ellis).

[2] A defendant seeking summary judgment has a considerable burden to discharge.3 He, she, or it must identify “a complete defence to the plaintiff’s claim, that is, a ‘king hit’”.4 The reason is obvious: summary judgment denies a party their day in court.

Background

[3] 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 Ryburn v Gilbert

Details

AGLC: Ryburn v Gilbert [2025] NZHC 2013
Case: [2025] NZHC 2013
Decision Date: 24 July 2025

CaseChat Overview and Summary

The High Court of New Zealand was tasked with ruling on a strike-out application and an application for summary judgment in the case of Ryburn v Gilbert. The plaintiffs, Jennifer Ryburn, Peggy Langlands, Marianne Wildermoth, and Bernard Gilbert, alleged breaches of fiduciary duty and undue influence by the defendants, Richard Montague Gilbert and others, in relation to the estate of William Montague Gilbert and the Gilbert Family Trust. The plaintiffs claimed that the defendants breached their fiduciary obligations by executing two deeds of family arrangement contrary to the terms of William’s will and by resettling assets from the Gilbert Trust to the Moerangi Trust. The defendants argued that the plaintiffs' claims were untenable, inadequately pleaded, and time-barred.

The court dismissed the strike-out application, finding that the plaintiffs' claims were adequately pleaded and that the issues raised were matters for trial rather than resolution through a strike-out application. The court held that the effect of the deeds was a trial issue and that the plaintiffs' claims, including those of fraud, were sufficiently detailed to warrant a trial. Additionally, the court found that the self-dealing and undue influence claims were also matters for trial, as they involved factual disputes that could not be resolved on a strike-out application.

The court declined to grant leave for the summary judgment application due to its unexplained lateness and the resulting prejudice to the plaintiffs. The court noted that the plaintiffs had been forced to prepare for summary judgment arguments rather than focusing on the upcoming trial, which was to commence in less than two months. The court also found that the contentions of laches and acquiescence, which were specific to the summary judgment application, required close factual inquiry and were better suited to trial. The court did, however, grant the application for further particulars in certain respects, requiring the plaintiffs to clarify specific allegations regarding Richard’s state of mind and the basis for the claim against the Moerangi Trust trustees.

In conclusion, the court dismissed the application for strike-out, declined leave for the summary judgment application, and granted the application for further particulars in limited respects. The court awarded costs to the plaintiffs for the strike-out and summary judgment applications, with a modest uplift for the lateness of the summary judgment application, and directed that each party bear their own costs for the application for further particulars.

Orders