Lane v Li - [2025] NZHC 37

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1265

[2025] NZHC 37

BETWEEN
JAMES TO’ESE LANE

Applicant

AND

XINFENG LI

Respondent

Hearing: On the Papers

Counsel:

T D Bloy for Applicant

K McDonald for Respondent

Judgment:

30 January 2025

JUDGMENT OF CHURCHMAN J

[Costs]

[1] James To’ese Lane was successful in proceedings seeking a declaration from the Court as to which will of the late Frank Lane (the deceased) was valid.

[2] The hearing occupied two days and involved both cross-examination of witnesses and the making of extensive written and oral submissions by counsel.

[3] There were three parties who took an active part in the proceeding: the applicant, Xinyeng Li (Lily) on her own behalf and on behalf of her son Dylan Smith (Dylan) and Vincent Tan (Vincent).

[4] Although Vincent filed an application in support of Lily, he made himself available for cross-examination and essentially adopted a neutral position.

LANE v LI [2025] NZHC 37 [30 January 2025]

[5] In my substantive judgment1 I held that the 2023 will was invalid having been executed when the deceased lacked capacity and also being the subject of undue influence. I therefore accepted the applicant’s arguments and rejected those of Lily.

The costs application

[6] As the wholly successful party, the applicant has applied for costs. The costs application is advanced on two separate grounds: firstly indemnity costs are sought because it is claimed that Lily acted vexatiously, frivolously, improperly or unnecessarily in opposing the application; that Lily’s opposition to the applicant’s proceedings was hopeless from the outset on the ground of undue influence alone; that, at the hearing, Lily had ignored the issue of undue influence concentrating almost exclusively on the issue of testamentary capacity; Lily had relied on poor quality, unhelpful, and misguided opinion evidence on the issue of testamentary capacity; and Lily’s opposition to the application was unnecessary as probate of the 2023 will was sought in the alternative and Lily could have maintained a neutral position as Vincent had done.

[7]Other reasons advanced in support of a claim for indemnity costs were:

(a)Lily was primarily responsible for the 2023 will being made;

(b)the actions of Paul Young in relation to the 2023 will were directly attributable to Lily;

(c)Lily had manipulated Frank including in connection with the 2023 will; and

(d)there were many instances in the proceeding where Lily and her former counsel displayed a lack of diligence, preparation and respect for the Court procedure.

1 Lane v Li and others [2024] NZHC 3663.

[8] As an alternative to an application for indemnity costs the applicant sought increased costs under r 14.6(1)(a) of the High Court Rules 2016 (HCR).

[9]The amount sought was $117,654.95 comprised of:

(a)$65,964 being scale costs on a category 2 basis as set out in sch 1 to the application with a Band B categorisation being claimed for all items except those numbered 3, 5, 7, 16, 20—22, and 29 in 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 Lane v Li

Details

AGLC: Lane v Li [2025] NZHC 37
Case: [2025] NZHC 37
Decision Date: 30 January 2025

CaseChat Overview and Summary

James To’ese Lane successfully sought a declaration from the Court as to which will of the late Frank Lane was valid in proceedings against Xinfeng Li. The matter involved extensive submissions and cross-examination of witnesses. Li opposed the application on behalf of herself and others, arguing for the validity of the 2023 will. The court found the 2023 will invalid due to the deceased's lack of capacity and undue influence, dismissing Li’s arguments.

The court examined the application for costs, which was advanced on two grounds. Firstly, indemnity costs were sought due to Li’s alleged vexatious, frivolous, improper, or unnecessary opposition. Secondly, increased costs were claimed under the High Court Rules 2016. Li opposed the costs application, arguing that her opposition was not hopeless and that she should not bear any costs. She also contested specific claims for scale costs and increased costs.

The court considered the principles governing costs, noting the discretion of the court and the need for reasons when departing from the standard costs regime. The court found that certain costs related to the Originating Application and associated Interlocutory Application should be borne by the estate, irrespective of Li’s position. Regarding increased or indemnity costs, the court held that Li’s opposition to the claim of undue influence was hopeless and bound to fail, justifying an award of indemnity costs. The court determined that Li should pay indemnity costs for all work in relation to these proceedings, except for specific items to be borne by the estate. The applicant was directed to submit a revised costs claim in accordance with the court's findings.

In conclusion, the court ordered that the estate should cover specific costs related to the Originating Application, while Li was to pay indemnity costs for the remainder of the proceedings. Li was also ordered to pay disbursements of $17,035.95. The applicant was instructed to submit a revised costs claim reflecting these determinations.

Orders