Relationship property ruling notes nine-day delay due to counsel error
In a relationship property dispute, New Zealand’s Court of Appeal agreed to extend the time to appeal upon finding some merit in the proposed appeal, a short delay caused by counsel error, and no real prejudice to the respondents.
In Lobb v Ryan, [2025] NZCA 405, the disagreement regarding the relationship property arose after a couple’s separation in 2016. When they parted ways, a family trust called the Lothbury Trust held most of the property, with the family home being the main asset of value.
In 2017, the ex-wife notified the trustees to resettle half of the trust assets in a new trust, which was in line with a clause in the post-separation trust deed. Her ex-husband objected.
The court appointed a receiver. Shortly afterward, WAG Trustees (2020) Ltd took an assignment of the mortgage over the family home.
In 2023, Justice Hinton ordered the court-appointed receiver to sell the family home; deduct the sale costs, receiver costs, and other payments from the sale proceeds; and pay 50 percent of the remaining proceeds to the new trust.
The ex-husband, his family members, and other related entities tried to stop the sale of the family home by lodging caveats and filing trespass notices.
The applicants in this case – the ex-husband and WAG Trustees – issued a defective notice under the Property Law Act 2007. The High Court issued judgments preventing the ex-husband and his family from taking further action.
In June 2023, Justice Edwards discharged the WAG Trustees’ mortgage. In December 2023, the family home was settled. The ex-wife applied to apportion $572,370 of the receiver’s costs to her ex-husband.
In July 2024, Justice Gault of the High Court decided that the ex-husband should pay part of the costs upon deeming him sufficiently involved in the actions of his family members and the related entities.
On 21 August 2024, the applicants brought a notice of appeal to the Court of Appeal three days beyond the applicable limitation period. They alleged that Gault wrongly relied on Hinton’s and Edwards’ judgments to determine whether to hold the ex-husband liable for his family’s actions.
The registry agreed to extend the time and accepted the applicants’ notice for filing. The respondents – including the ex-wife and the receiver – opposed the extension and claimed they had not been served with the notice.
In November 2024, the appeal was considered abandoned due to non‑compliance.
In December 2024, Justice Cooke issued a minute asking the applicants to file a formal application under r 29A of the Court of Appeal (Civil) Rules 2005, and asked the respondents to consider condoning the notice’s late filing. He reasoned that:
The ex-wife objected to the applicants’ request to extend the time. She argued that:
The Court of Appeal of New Zealand granted the application seeking an extension of time to appeal upon determining that the appeal grounds justified an extension.
The appeal court agreed with Justice Cooke’s perspective. It found that:
The appeal court issued no costs order. The appeal court acknowledged that granting the extension amounted to an indulgence favouring the applicants.
However, the appeal court held that the ex-wife unreasonably opposed the extension and should have heard out Justice Cooke’s views.
