Lee v Lee
[2013] NZHC 1820
•19 July 2013
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CIV-2010-463-000430 [2013] NZHC 1820
BETWEEN ROBERT LEE AND HELEN HEARD Applicants/Plaintiffs
ANDGREGORY LEE Respondent/Defendant
Judgment: 19 July 2013
JUDGMENT OF COLLINS J [Leave to Appeal]
Introduction
[1] On 13 May 2013 I dismissed Robert Lee and Helen Heard’s application for review[1] of a decision of Associate Judge Christiansen in which he had struck out their proceeding on the grounds that it was barred by the time limit contained in s 4 of the Limitation Act 1950.[2]
[1] Lee v Lee [2013] NZHC 1069.
[2] Lee v Lee [2012] NZHC 3283.
[2] Robert Lee has now sought leave to appeal my decision to the Court of Appeal. The application is signed by Robert Lee “on behalf of the plaintiffs”. It would appear Robert Lee is now representing himself and for present purposes I assume Helen Heard supports his application.
[3] The application was filed marginally out of time for reasons that are totally understandable and which cannot be held against Robert Lee. It appears there was a misunderstanding between Robert Lee and Court staff over whether or not leave was required and in which court the application for leave should be filed. I have decided that Robert Lee’s application should be determined on its merits, rather than on the
basis that it was filed marginally out of time.
LEE v LEE [2013] NZHC 1820 [19 July 2013]
Threshold for leave
[4] Section 26P(1AA) of the Judicature Act 1908 provides that my decision is final unless I give leave to appeal, or unless the Court of Appeal gives special leave to appeal.
[5] The threshold for granting leave to appeal is the same as that which governs a second appeal under s 67 of the Judicature Act 1908.
[6] Before leave can be granted the applicant must establish that the proposed appeal raises some question of law or fact capable of bona fide and serious argument in a case involving some public or private interest that is of sufficient importance that it outweighs the cost and delay of a further appeal. The authorities make it clear that the scarce time and resources of the Court of Appeal are not to be wasted or the parties put to additional expense “without realistic hope of benefit”.[3] The Court of
[3] Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
Appeal has said this on the issue:[4]
[4] Snee v Snee [2000] NZFLR 120 (CA) at 125-126; Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
Notwithstanding frequent reminders of the test, applications continue to be made which have little or no prospect of success. Counsel are of course to be commended for making all reasonable efforts to advance the cause of their clients but after a first appeal they must draw back and appraise the state of the case dispassionately, asking whether in truth the disputed matter contains the requisite element of sufficient importance. The scarce time and resources of the High Court and of this Court are not to be wasted, nor additional expense for an unsuccessful client incurred without realistic hope of benefit.
Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.
When the disputed matter is entirely or largely a question of fact the task of the applicant under s 67 is harder. An issue of fact in a matter falling within the jurisdiction of an inferior Court will seldom be of public importance.
Summary of the case
[7] The following summary is substantially based upon paragraphs [2]-[11] of my 13 May 2013 judgment.
[8] Robert Lee, Helen Heard and Greg Lee are siblings. Their parents Ray and Joyce Lee owned a plastic manufacturing business in Rotorua called High Duty Plastics Ltd (HDP).
[9] On 6 October 1997 Ray and Joyce Lee signed a deed in which they agreed to transfer 900 “B” shares in HDP to Greg Lee. Those shares had no voting rights attached to them under the deed. The remaining 100 A shares, which had full voting rights, were to be placed in trust until the death of Ray and Joyce Lee. Greg Lee was the sole beneficiary of that trust. At the same time Greg Lee:
(1)acknowledged a debt of $200,724 to Ray and Joyce Lee. That debt was to be forgiven on the death of Ray and Joyce Lee; and
(2)a further debt of $132,174 which would be repaid to the estate of Ray and Joyce Lee within seven years of their death.
[10] On 4 August 2000 Ray and Joyce Lee executed another deed under which
Greg Lee immediately received the 100 A shares in HDP. At the same time: (1) Ray and Joyce Lee forgave Greg Lee’s debt of $132,174;
(2) Greg Lee paid Ray and Joyce Lee $200,000.
[11] Ray Lee passed away on 31 January 2003. Joyce Lee passed away on
20 June 2004. Robert Lee and Helen Heard are the executors of Joyce Lee’s estate. On 29 September 2011 Robert Lee and Helen Heard commenced their proceeding in which they asked the High Court to set aside the transfer of the shares in HDP to Greg Lee. They alleged that Greg Lee:
(1) asserted undue influence over Ray and Joyce Lee;
(2) gained an unconscionable bargain; and/or
(3) breached his duties as a fiduciary
when Ray and Joyce Lee executed both the 1997 and 2000 deeds.
[12] Greg Lee filed a strike-out application in which he pleaded that the proceeding was frivolous, vexatious, and an abuse of the Court’s process because it was barred by s 4(3) of the Limitation Act 1950, which states that:
An action upon a deed shall not be brought after the expiration of 12 years from the date on which the cause of action accrued.
[13] Both Associate Judge Christiansen and I have concluded that Robert Lee and Helen Heard’s proceeding is barred. Our reasons can be summarised in the following way:
(1)The cause of action accrued when the deed of 6 October 1997 was executed. The deed of 4 August 2000 was merely a variation of the 6
October 1997 deed. Therefore the last date the proceeding could be commenced was 6 October 2009.
(2)The six year time limit on claims founded in contract in s 4(1)(a) of the Limitation Act 1950 applies by analogy to Robert Lee and Helen Heard’s claims for equitable relief.
Proposed grounds of appeal
[14] Robert Lee’s application is based on the submission that my judgment of
13 May 2013 contains errors of fact and errors of law and was therefore decided contrary to the principles that govern a strike-out application. An indication of the level of Robert Lee’s conviction that he has been the victim of a miscarriage of justice can be gleaned from the fact that his memorandum in support of his application for leave to appeal is 134 paragraphs. He has also filed a further 106 paragraph memorandum in response to the memorandum Greg Lee’s counsel has
filed in opposition to the application for leave. Today Robert Lee has filed a third memorandum of 106 paragraphs.
Alleged errors of fact
[15] Robert Lee submits that both Associate Judge Christiansen and I have misunderstood the facts that underpinned our interpretation of the 6 October 1997 and 4 August 2000 deeds. Amongst other matters, the alleged errors include:
(1) Not understanding that the A shares were not in fact transferred in
1997.
(2) Not understanding the B shares were not in fact transferred on 3 April
1998.
(3)Not understanding the reasons why Robert Lee and Helen Heard delayed commencing their proceeding.
(4)Placing undue reliance on the fact Ray and Joyce Lee received professional advice when preparing and executing the 6 October 1997 deed.
(5) Failing to appreciate that the trust’s accountants are unreliable
witnesses.
[16] One of the key planks to Robert Lee’s theory of the case is that the 6 October
1997 deed is irrelevant. So too, is the professional advice which Ray and Joyce Lee received at that time, including the valuations of their assets and Greg Lee’s acknowledgement of debt. In his memorandum filed today, Robert Lee says that in fact the 6 October 1997 deed “lapsed” because of non-performance by Greg Lee.
[17] I need not revisit these issues in this decision. Suffice to say for present purposes Robert Lee wishes to re-litigate for a third time factual issues that have already been the subject of two judgments.
[18] In my assessment, nothing raised in Robert Lee’s three sets of submissions leads me to conclude that the factual dispute he wishes to continue has any “realistic hope of benefit”.
Alleged errors of law
[19] Robert Lee submits that I have:
(1)erred when concluding that the 4 August 2000 deed was a variation to the 6 October 1997 deed;
(2) erred when deciding that for the purposes of the time limits in the
Limitation Act 1950 the causes of action commenced on 6 October
1997; and
(3)erred when I concluded that Robert Lee’s claims of undue influence, unconscionable bargain and breach of fiduciary duty were analogous to implied contractual duties.
[20] I am in no doubt that each of these issues are genuine questions of law and that in different circumstances they would be issues that are appropriate for consideration by the Court of Appeal.
[21] However, in this case, each of the legal issues have been the subject of two judgments. In my assessment, the alleged errors of law are not, in the context of this litigation, errors that justify further examination by the Court of Appeal. Nor are they issues which Greg Lee should be put to the cost of continuing to re-litigate.
Principles that govern a strike-out application
[22] Robert Lee’s concern that I have misapplied the principles that govern strike- out applications is intertwined with his assertion that I have made errors of fact and law that justify leave being granted to appeal to the Court of Appeal. My conclusions in relation to Robert Lee’s submissions that I have made errors of fact
and law render it unnecessary for me to comment further on the suggestion that I
have misapplied the principles which govern strike-out applications.
Conclusion
[23] Robert Lee’s application for leave to appeal to the Court of Appeal is
declined.
[24] Robert Lee has filed two sets of lengthy submissions without obtaining the
Court’s leave. He is not to file any further submissions in this matter in the
High Court without the prior leave of a Judge.
D B Collins J
Solicitors:
Bergseng & Co, Auckland for Respondent/Defendant