Lee v Lee - [2012] NZHC 3283

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV 2010-463-000430 [2012] NZHC 3283

BETWEEN ROBERT LEE AND HELEN HEARD Plaintiffs

ANDGREGORY LEE Defendant

Hearing: 23 November 2012

Appearances: A Webb for the Plaintiffs
J Bergseng for the Defendant

Judgment: 6 December 2012

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on
06.12.12 at 4:30pm, pursuant to
Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

Solicitors:
A Webb, Barrister, Auckland – webb@quaychambers.co.nz
J Bergseng, Bergseng & Co, Auckland – john@bergseng.co.nz

ROBERT LEE AND HELEN HEARD V GREGORY LEE HC ROT CIV 2010-463-000430 [6 December 2012]

Background

[1] The plaintiffs filed their proceeding in the High Court on 29 September 2011. They are the executors of the Estate of their mother Joyce Gwendoline Lee (Joyce) who died on 20 June 2004. Joyce survived her husband Ray who died 18 months earlier.

[2] Ray and Joyce had been the owners of a family business called High Duty

Plastics Limited (HDP) a plastics manufacturer.

[3] The defendant (Greg), a brother of the plaintiffs, alone among his siblings

had, since 1985, worked in his parent’s business.

[4] The plaintiffs’ proceeding centres on events in connection with the execution of a Deed of Bare Trust on 6 October 1997 (the 1997 Deed), and a Deed of Agreement entered into on 4 August 2000 (the 2000 Deed). The 1997 Deed dealt with the ownership of the shares in HDP and provided that 900 “B” shares be transferred to Greg whilst the remaining 100 “A” shares owned by Ray and Joyce Lee would be held in trust by Mr Clive Smith their accountant with Greg to be the final beneficiary of same. That deed provided for those “A” shares to be transferred to Greg upon the death of both Ray and Joyce.

[5] The 2000 Deed brought forward the date on which Greg was to acquire the

100 “A” shares to give effect to that transfer at that time rather than upon the death

of both parents.

[6] The plaintiffs’ proceeding concerns the acquisition of the family business by their brother. The plaintiffs plead causes of action in equity alleging undue influence, unconscionable bargain, and breach of fiduciary duty.

[7] Greg has denied these allegations and further has raised in an affirmative defence that the proceedings are statute barred by reason of the Limitation Act 1950.

[8] Greg filed a strike out application on 23 April 2012. It is supported by affidavits from Mr Willemsen and from Clive Smith accountants who advised Ray and Joyce in connection with the 1997 and 2000 Deeds.

[9] That application was withdrawn following Greg’s discovery of a legal file in relation to the transactions that took place in 1997 and 2000. A new strike out application was filed on 13 September 2012 supported by an affidavit from Greg. Additionally Greg has given notice he relies upon those affidavits filed in respect of the earlier withdrawn strike out application.

[10] The plaintiff, Robert Lee has filed an…

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 [2012] NZHC 3283
Case: [2012] NZHC 3283
Decision Date: 6 December 2012

CaseChat Overview and Summary

In Lee v Lee, the plaintiffs, Robert Lee and Helen Heard, executors of the estate of Joyce Lee, sought to set aside two Deeds of Bare Trust and a Deed of Agreement, alleging undue influence, unconscionable bargain, and breach of fiduciary duty. The defendant, Gregory Lee, denied these allegations and raised an affirmative defence of statute-barred claims. The court was required to decide whether the plaintiffs' proceeding was frivolous, vexatious, or an abuse of process due to being statute-barred. The court also had to consider whether the Limitation Act 1950 applied and if any equitable principles could extend the limitation period. The court held that the plaintiffs' proceeding was statute-barred, and the delay in bringing the claim was prejudicial to the defendant. The court found that the plaintiffs' proceeding was frivolous, vexatious, and an abuse of process, and therefore struck it out. The plaintiffs were ordered to pay the defendant's costs.

Orders