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Lee v Lee

Lee v Lee

Case [2020] NZHC 2540 28 September 2020

Costs

Increased Costs

Limitation Periods

Discovery & Disclosure

Abuse of Process

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2010-463-000430

[2020] NZHC 2540

BETWEEN
ROBERT LEE as trustee of the estate of JG Lee
First Plaintiff

HELEN HEARD as trustee of the estate of JG Lee

Second Plaintiff

AND

GREGORY LEE

First Defendant

GREGORY LEE and JANE LOIS LEE as

trustees of the Leeroy Family Trust Second Defendants

Hearing: (On the papers)

Counsel:

Plaintiffs in Person

Lady Deborah Chambers QC and Augustine Choi for the Defendants

Judgment:

28 September 2020

[COSTS] JUDGMENT OF MOORE J

This judgment was delivered by me on 28 September 2020 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

LEE & ANOR v LEE & ORS [2020] NZHC 2540 [28 September 2020]

Introduction

[1] This judgment settles costs in the High Court for a long running family dispute. It has been discontinued. I ordered the plaintiffs to pay the defendants' costs and invited submissions on costs if the parties could not agree on quantum.

[2]The defendants seek a mixture of increased and indemnity costs, totalling over

$250,000. The plaintiffs oppose the application for costs and seek costs themselves.

Summary of procedural background

[3] In 2011, Robert Lee filed a statement of claim in the High Court on behalf of himself and his sister Helen Heard, in their capacity as trustees of the estate of their late mother. The proceeding challenged transactions through which shares in their parents’ company were transferred to their brother Gregory Lee, a defendant.

[4] The proceedings were struck out in the High Court on limitation grounds, then reinstated after a successful appeal to the Court of Appeal in 2015.1 In 2016, the Court set this proceeding down for a five-day trial beginning 3 April 2017. The plaintiffs were ordered to provide $150,000 security in the form of a second registered mortgage over a property owned the RB and JG Lee Family Trust.2 Robert Lee applied to review that order and in March 2017 Davison J ordered that security of $75,000 was appropriate.3 Davison J noted that co-trustees may not agree to the mortgage, and it was ordered that proceedings would be stayed if security was not provided. Robert Lee did not provide the mortgage.

[5] Robert Lee sought to adjourn the hearing a week before it was to begin. That request was declined. The case came before Edwards J on 3 April 2017. The defendants sought the stay be lifted to allow the trial to proceed on the basis that an order be made directing the Registrar to sign the mortgage document. Robert Lee opposed the stay being lifted.

1      Lee v Lee [2012] NZHC 3283; Lee v Lee [2013] NZHC 1069; Lee v Lee [2015] NZCA 514; [2016]
NZAR 61.
2      Lee v Lee [2016] NZHC 1073.
3      Lee v Lee [2017] NZHC 431.

[6] Edwards J accepted the stay should remain in place and vacated the fixture. Nevertheless…

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 Lee v Lee

Details

AGLC: Lee v Lee [2020] NZHC 2540
Case: [2020] NZHC 2540
Decision Date: 28 September 2020

CaseChat Overview and Summary

The case of Lee v Lee involves a family dispute concerning transactions through which shares in the parents' company were transferred to one of the siblings, Gregory Lee. The plaintiffs, Robert Lee and Helen Heard as trustees of their late mother's estate, originally filed a claim in the High Court in 2011, which was struck out on limitation grounds but later reinstated on appeal. The defendants, Gregory Lee and Jane Lois Lee as trustees of the Leeroy Family Trust, sought indemnity costs for the period before April 2016 and increased costs for the period after April 2016, following two settlement offers made by the defendants. The plaintiffs opposed the application for costs and sought costs themselves.

The central legal issues before the court were whether indemnity costs were available for the period after 22 April 2016, and whether increased costs were available for the period after the first settlement offer. The court considered the plaintiffs' failure to provide security for costs and their unreasonable refusal to accept settlement offers, as well as the lack of merit in their claim.

The court found that while the plaintiffs' case lacked merit, there was insufficient evidence to award indemnity costs, as the high threshold for such an award was not met. However, the court did find that increased costs were warranted, due to the plaintiffs' unreasonable refusal to accept settlement offers and the lack of merit in their claim. The court granted a 20% increase in costs for the period before April 2016, and a 50% increase for the period after the first settlement offer. The total costs awarded were $177,792.60, with the plaintiffs also liable for $5,289 in disbursements.

In conclusion, the plaintiffs are liable to pay the defendants costs of $177,792.60 and disbursements of $5,289.00, subject to approval by the registrar.

Orders