Lee v Lee - [2013] NZHC 1820

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…

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 [2013] NZHC 1820
Case: [2013] NZHC 1820
Decision Date: 19 July 2013

CaseChat Overview and Summary

In Lee v Lee, Robert Lee and Helen Heard sought to challenge the transfer of shares in a plastic manufacturing business, High Duty Plastics Ltd (HDP), to their brother, Greg Lee. The applicants claimed that Greg Lee exerted undue influence, gained an unconscionable bargain, and breached his fiduciary duties when their parents executed deeds transferring shares to him. Greg Lee moved to strike out the proceeding on the grounds that it was barred by the Limitation Act 1950. Associate Judge Christiansen and Collins J both found that the proceeding was indeed barred by the statute of limitations.

Robert Lee, representing himself, sought leave to appeal Collins J's decision to the Court of Appeal. He argued that there were errors of fact and law in the earlier judgments, and that the principles governing strike-out applications were misapplied. Specifically, Robert Lee claimed that the 6 October 1997 deed was irrelevant, that the A shares were not transferred in 1997, and that the trust's accountants were unreliable witnesses.

Collins J found that the factual and legal issues Robert Lee sought to re-litigate had already been considered in two previous judgments, and that there was no realistic hope of benefit in further pursuing the matter. Collins J also concluded that the alleged errors of law were not significant enough to warrant examination by the Court of Appeal, and that Greg Lee should not be subjected to the additional costs and delay of a further appeal.

Robert Lee's application for leave to appeal was declined. He was also prohibited from filing any further submissions in the High Court without the prior leave of a Judge.

Orders