Lee v Lee

Case [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…

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Lee v Lee [2012] NZHC 3283
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[2012] NZHC 3283
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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

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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