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 PlaintiffHELEN 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.
[6] Edwards J accepted the stay should remain in place and vacated the fixture. Nevertheless…
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- AGLC
- Lee v Lee [2020] NZHC 2540
- Case
- [2020] NZHC 2540
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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