Lee v Lee - [2017] NZHC 712

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2010-463-000430 [2017] NZHC 712

BETWEEN
ROBERT LEE

First Plaintiff

HELEN HEARD Second Plaintiff

AND

GREGORY LEE First Defendant

GREGORY LEE and JANE LEE as TRUSTEES OF THE LEEROY FAMILY TRUST

Second Defendant

Hearing: 3 April 2017

Appearances:

R Lee (Self-represented First Plaintiff) in Person
No Appearance of, or for the Second Plaintiff
D A T Chambers QC and A H H Choi for the Defendants
F C K Wood for R L Pryce

Judgment:

11 April 2017

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 11 April 2017 at 4.45 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel: D A T Chambers QC, Auckland Solicitors: Carson Fox Legal, Auckland Copies To: R Lee, Rotorua
H Heard, Australia

LEE v LEE [2017] NZHC 712 [11 April 2017]

Introduction

[1] Mr Robert Lee and Ms Heard are siblings. They have been engaged in a long running dispute with their brother and first defendant, Mr Gregory Lee, in relation to the estate of their parents.

[2] The proceeding was set down for a five day fixture commencing 3 April

2017. The trial did not go ahead. I made an order maintaining a stay of the proceeding. I also made an order that unless the first and second plaintiffs file all remaining affidavits (being the two substantive affidavits on behalf of Mr Robert Lee and any reply affidavits) within five working days the proceeding would be struck out (the unless order).

[3] This judgment sets out my reasons for those orders. It also records my decision on an application for costs by Mr Pryce (a proposed witness in the proceeding), and an oral application by the defendants to vary the security for costs order.

A short procedural history

[4] Mr Robert Lee commenced his claim in 2010 with a pre-trial discovery application. A statement of claim was filed on 30 September 2011.

[5] An application by Mr Gregory Lee to strike out the proceeding on Limitation Act 1950 grounds was granted by Christiansen AJ on 6 December 2012,1 and subsequently upheld by Collins J.2 However, it was reversed on appeal and on
4 November 2015 the proceeding was reinstated.3

[6] On 1 March 2016, Asher J made various timetabling orders including orders that all evidence in chief would be by way of affidavit and all existing affidavits would form part of the evidence. Orders were made requiring the plaintiffs to file
any further evidence by 27 May 2016 and fixing 24 June 2016 as a close of

1      Lee v Lee [2012] NZHC 3283.
2      Lee v Lee [2013] NZHC 1069; Lee v Lee [2013] NZHC 1820.
3      Lee v Lee [2014] NZCA 403; Lee v Lee [2015] NZCA 514.

pleadings date. The proceeding was allocated a five day fixture which the parties agreed could be brought on as a back-up fixture.

[7] On 23 May 2016,…

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 [2017] NZHC 712
Case: [2017] NZHC 712
Decision Date: 11 April 2017

CaseChat Overview and Summary

The High Court of New Zealand was presented with a complex dispute between siblings, Robert Lee and Helen Heard, and their brother Gregory Lee, concerning their parents' estate. The case, Lee v Lee, involved a long-standing legal battle that had seen multiple appeals and orders regarding the progression and conduct of the litigation. The core issues centered around the enforcement of security for costs and the compliance with procedural orders set by the court. Robert Lee, acting as a self-represented litigant, faced challenges in meeting the court-mandated deadlines for filing affidavits and providing security for costs, which led to the stay of the proceedings. The court was tasked with determining whether the proceeding should be struck out due to non-compliance with the unless order and whether an order should be made to direct the Registrar to sign a mortgage document to provide the necessary security for costs.

The court found that the order made by Davison J, which required the proceeding to be stayed if security for costs was not provided, was clear and should be upheld. The plaintiffs had ample time to comply with the procedural orders, and their failure to do so was causing significant hardship to the defendants. The court considered it appropriate to give the plaintiffs a short period to file all outstanding affidavits and to comply with the security for costs order. Despite the defendants' arguments that Robert Lee had deliberately engineered non-compliance, the court declined to make an order directing the Registrar to sign the mortgage, as it would alter the balance intended by the original security for costs order. The court emphasized that the defendants' interests were adequately protected by the stay of the proceeding.

The court also addressed an application for costs by a proposed witness, Mr. Pryce, who had been served with a subpoena that was later withdrawn. The court found that while the subpoena was arguably premature, it was not vexatious or for an ulterior purpose, and therefore, an order for indemnity costs was not justified. However, the court awarded costs on a schedule 2B basis for the filing of the application to set aside the subpoena. Ultimately, the court maintained the stay of the proceeding and declined the application to vary the security for costs order, leaving the future progression of the case contingent on the plaintiffs' compliance with the court's orders.

Orders