Lane v Li
[2025] NZHC 2284
•13 August 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-1265
[2025] NZHC 2284
UNDER the Administration Act 1969 and Parts 19 and 27 of the High Court Rules 2016 IN THE MATTER
of the Estate of Frank John Lane (deceased)
BETWEEN
JAMES TO’ESE LANE
Applicant
AND
XINFENG LI, VINCENT JEFF TAN, JED LANE TAN, TANIA BERNADETTE
LANE, ALOMA ELISA LANE AND DYLAN SMITH
Respondents
AND
NIGEL PHILIP SMITH AND MARCUS
ELDON DIPROSE in their capacities as administrators of the estate of Frank John Lane
Interested Parties
Hearing: On the papers Counsel:
K Sun for Xinfeng Li
T D Bloy and T K Cunningham-Adams for Interested Parties
Judgment:
13 August 2025
JUDGMENT OF CHURCHMAN J
Background
[1] In my judgment dated 6 December 2024,1 I held that the late Frank Lane lacked testamentary capacity and had been the subject of undue influence which resulted in a
1 Lane v Li and Others [2024] NZHC 3663.
LANE v LI [2025] NZHC 2284 [13 August 2025]
will dated 8 April 2023 being invalid. The result of that finding was that an earlier will dated 14 December 2010 was granted probate.
[2]On 30 January 2025 I issued a judgment in respect of costs.2
[3] I awarded indemnity costs against Xinfeng Li in respect of part of the proceedings and noted that, in relation to the issue of undue influence, Xinfeng Li had adopted a position that was “hopeless” and was “bound to fail”.3
[4]Xinfeng Li appealed the substantive judgment but not the costs judgment.
[5] Xinfeng Li delayed in pursuing the appeal and apparently a hearing has been set in the Court of Appeal in the week of 13 October 2025 to determine whether the appeal has been abandoned.
[6] Although the costs decision was not appealed, Xinfeng Li applied for a stay of enforcement of it. I dismissed the application for stay.4
The application
[7] By application dated 1 August 2025, Xinfeng Li applied to “stay the enforcement of the judgment set out in Lane v Li [2024] NZHC 3663”. That application was filed by lawyer Kenneth Sun. Over the course of this litigation, Xinfeng Li has changed her counsel/solicitors some five times. At the time of filing the application dated 1 August 2025, Kenneth Sun was not the solicitor on the record.
[8] The 1 August 2025 application did not name as a party the administrators of the estate of the late Frank Lane, Nigel Smith and Marcus Diprose.
[9] Mr Sun filed an amended application dated 5 August 2025 with different intituling, this time naming the estate administrators as the respondent.
2 Lane v Li [2025] NZHC 37.
3 At [46].
4 Li v Lane [2025] NZHC 1276.
[10] Xinfeng Li claims that a stay is necessary because the appeal to the Court of Appeal would be rendered nugatory if the judgment is not stayed. Xinfeng Li claims that the prospects of success in appeal are strong. The memorandum filed by counsel contained the following paragraph in relation to the claimed strength of the appeal:
The strength of appeal is strong because there is credible evidence that:
(i)the medical expert did not consider crucial video evidence made at the time of the 2023 Will which provides clear video and audio evidence (Higher Quality video) in comparison to the videos which were recorded farther from the deceased;
(ii)the Higher Quality Video would have changed the perspective of multiple other expert witness and witness testimonies.
[11] The administrators of the estate have filed a notice of opposition to the application supported by a memorandum of counsel. The grounds of the opposition are:
(a)The judgment of Lane v Li [2024] NZHC 3663 is a non executory order. There is no execution to stay.
(b)By seeking to stay the distribution of the Estate, [Xinfeng Li] is essentially applying for injunctive relief restraining the interested parties from completing their duties as administrators under the order for probate, dated 6 December 2024.
(c)The injunction sought will not prevent the interested parties from realising Estate assets or paying expenses incurred by the Estate.
(d)Should the application be amended to seek an injunction restraining the Estate administrators from realising assets and paying expenses, the interested parties would oppose it on the basis that:
(i)The beneficiaries of the Estate will be injuriously affected by such an injunction.
(ii)[Xinfeng Li] has not provided an undertaking as to damages.
(iii)[Xinfeng Li] is not a beneficiary of the Estate.
(iv)The appeal would not be rendered nugatory by the lack of a stay. Even if the appeal was successful and the invalid will dated 8 April 2023 were subsequently upheld, the purported gift to [Xingfeng Li] in the 2023 will has failed and [Xinfeng Li] is not a residuary beneficiary.
(v)The appeal has no merit.
(vi)The appeal has not been prosecuted with due diligence.
(vii)There is no novelty or importance in the questions raised in the appeal or the application which would justify a stay being granted.
(viii)Any public interest in the proceeding favours the application being dismissed.
(ix)The overall balance of convenience is in favour of the application being dismissed.
[12] The interested parties rely on the affidavit of Nigel Smith, affirmed 12 May 2025, and the memorandum of counsel.
Analysis
[13] Xinfeng Li effectively seeks to stop the administrators of the Estate of Frank Lane from administering the Estate in accordance with the Court’s probate order.
[14] A probate order is non-executory. In Kang v Perpetual Trust Ltd,5 , Cooke J dealt with another case involving an interlocutory application to stay a probate order pending determination of the appeal. He said:6
5 Kang v Perpetual Trust Ltd [2023] NZHC 227
6 At [5].
There is a difficulty with the application arising from the fact that the Courts’ orders here are non-executory. PTL has been appointed administrator to perform functions under the Administration Act. Moreover, the Courts’ judgment rescinded a previous appointment of PTL as administrator under Letters of Administration. So staying the Court’s judgment will involve PTL being the administrator, but not in accordance with the will. That would not be appropriate. It is also inappropriate for there be [sic] no person acting in the role of administrator, particularly because of the substantial litigation that is presently on foot between the parties involving significant sums of money.
[15] If the current application is successful, the administrators would remain as administrators of the Estate only not in accordance with the 2010 will. That would not be appropriate.
[16]The amended interlocutory application seeks:
(a) To stay the distribution of the deceased’s Estate pursuant to an order for probate made under the judgment set out in Lane v Li [2024] NZHC 3663.
[17] If granted, that order would only prevent the final distribution of the Estate to the beneficiaries based on the 2010 will. It would not do anything to prevent the administrators from realising the Estate’s assets or paying expenses incurred by the Estate.
[18] Effectively, what the applicant is seeking is an order in the nature of an injunction but she has not provided any undertaking as to damages.
[19] I accept the administrator’s argument that the Estate no longer has $500,000 to give the applicant from the deceased’s bank accounts with ASB Ltd, Bank of New Zealand and Westpac New Zealand Ltd. There is therefore a strong case to argue that the gift to the applicant set out in the deceased’s invalid will of 8 April 2023 has failed.
[20] Although the application refers to her clawing back distributions of the Estate, the evidence is that there have not yet been any distributions to the beneficiaries. The administrators have only paid Estate expenses and advanced a loan of $2,800 to James Lane to assist with his relocation from the Estate’s property at 9 Fourth Avenue, Kingsland.
[21] Other factors to consider when assessing the stay application include delay on the part of the applicant. The applicant has waited some eight months before seeking to effectively halt administration of the Estate. That, and the applicant’s delays in pursuing the appeal to the Court of Appeal weigh against the application.
[22]However, probably the strongest factor is the lack of merit in the appeal.
[23] My substantive judgment found both a lack of testamentary capacity and undue influence. The evidence in support of both findings was overwhelming. It is not clear what the claimed new higher quality video is. At the hearing there were two videos, each of which were recorded on cellphones. There was nothing inadequate about the video or audio quality.
[24] The claim that this new video “would have changed the perspective of multiple other expert witnesses and witness testimonies” does not make sense. The only expert witnesses called were two medical practitioners. For the reasons set out in the substantive judgment, I preferred the evidence of Dr Read-Smith. Her evidence as to the deceased’s lack of testamentary capacity was based on a large number of factors including the notes recorded by all of the hospital staff who had interacted with the deceased as well as her direct observations of the deceased while he was in hospital. The suggestion that a claimed third video (which neither party thought sufficiently important to provide to the Court at the substantive hearing) might change Dr Read- Smith’s inclusion is speculative.
[25] The applicant would also have to convince the Court of Appeal that it should admit as evidence on the appeal this third video.
Conclusion
[26] The applicant is now on her fifth set of legal advisers in relation to these proceedings. No explanation has been given for the frequent change of legal advisers. Neither has there been any explanation for the delays which have been a feature of the proceedings. A number of the arguments advanced by Xinfeng Li have been hopeless. This application for a stay appears to be yet another one. The application is dismissed.
[27] Costs are reserved and will be considered either when the appeal to the Court of Appeal is determined or struck out.
Churchman J
Solicitors:
Capstone Law Limited, Auckland for Applicant Evolution Lawyers, Auckland for Interested Parties