Lee v Lee

[2019] NZCA 668

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA458/2017
 [2019] NZCA 668

BETWEEN	ROBERT LEE AS TRUSTEE OF THE ESTATE OF J G LEE Appellant
AND	GREGORY LEE First Respondent GREGORY LEE AND JANE LOIS LEE AS TRUSTEES OF THE LEEROY FAMILY TRUST Second Respondents

Court:	Stevens, Venning and Dunningham JJ
Counsel:	Appellant in person D A T Chambers QC and A H H Choi for Respondents
Judgment: (On the papers)	19 December 2019 at 12 noon

COSTS JUDGMENT OF THE COURT

The appellant must pay the respondents one set of costs of $15,081.85.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

1. In a judgment dated 30 July 2019 this Court dismissed the appellant’s appeal and ordered:[1]

   The appellant must pay the respondents one set of costs for a standard appeal on a band A basis and usual disbursements.

   [1]Lee v Lee [2019] NZCA 345.

2. The appellant applied for leave to appeal to the Supreme Court.  That application was dismissed on 8 November 2019.[2] 

   [2]Lee v Lee [2019] NZSC 124.

3. Counsel for the respondents has now filed a memorandum seeking costs and disbursements in the sum of $20,768.35.  In arriving at that figure counsel for the respondents seeks costs on the following interlocutory applications that the appellant made during the course of the appeal process:

   (a)an application for an extension of time;[3]

   (b)an application for leave to appeal;[4]

   (c)an application for waiver of security for costs on appeal;[5] and

   (d)an application for extension of time for a hearing date application.

   [3]Lee v Lee [2017] NZCA 470.

   [4]Lee v Lee [2018] NZCA 282.

   [5]See Lee v Lee [2019] NZCA 3.

4. The respondent also seeks costs for preparation of the appeal.

5. Counsel relies on r 53G of the Court of Appeal (Civil) Rules 2005 to support the applications for costs on the interlocutory hearings. 

6. The appellant opposes the respondents’ application for costs and rather submits that he should receive costs on the applications.  He also seeks to challenge the award of costs on the substantive appeal.  There is no basis for either submission.  As a litigant in person Mr Lee is not entitled to costs.[6]  And, as noted, Mr Lee’s application for leave to appeal from this Court’s decision has been dismissed. 

Extension of time

[6]McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335 at [55] and [88].

1. We decline the respondents’ application for costs on the application for an extension of time.  Ms Chambers QC relies upon r 53G(4) but costs were not reserved as is required by the rule.  Further, as the Court noted, the respondents accepted the delay was minor and no prejudice arose from it.[7]  The opposition to the extension of time was, in the circumstances, unreasonable. 

Application for leave to appeal

[7]Lee v Lee, above n 3, at [3].

1. However, costs were reserved on the application for leave to appeal.[8]  The presumption under r 53G(4) applies.  The respondents’ position in opposing leave was vindicated by the outcome of the appeal.  The respondent is entitled to costs with respect to that application for leave to appeal.   

Waiver of security

[8]Lee v Lee, above n 4, at [5].

1. We decline the application for costs on the application for waiver of security for costs.  We do not consider that application to be analogous with other interlocutory applications under r 53G.  The Court made no order for costs.  They were not reserved.  Further, the appellant was ultimately successful on that application, albeit he was granted an indulgence. 

Hearing date extension

1. Nor are we prepared to grant costs on the appellant’s application to extend time to apply for a hearing date and to complete the case on appeal.  As the respondents note, the opposition was ultimately withdrawn when the additional time sought had passed without the application being resolved. 

Preparation of the case on appeal

1. That leaves the costs sought for the preparation of the case on appeal.  The respondent did identify a number of documents the appellant had failed to include in the case on appeal.  The respondent collated them into an additional two volumes.  The two volumes prepared by the respondent contained relevant documents.  A contribution towards the respondents’ costs for that exercise is appropriate.  We consider one quarter of the standard time allowed to be reasonable.

Substantive appeal

1. The appellant challenges the award of costs for a day on the basis the hearing was completed in a half day.  However, the wording to the schedule to the rules contemplates costs on a substantive hearing being measured in whole days (as opposed to interlocutory applications which are measured in half days).[9] 

   [9]Court of Appeal (Civil) Rules 2005, sch 2.

2. Costs and disbursements calculated on the above basis for a standard appeal on a band A basis are $15,081.85 made up as follows:

Application for leave to appeal	$3,345.00
Case on appeal: 25% of the one-day allowance	$557.50
Substantive appeal	$8,920.00
$12,822.50
Disbursements	$2,259.35
Total:	$15,081.85

Result

1. The appellant must pay the respondents one set of costs of $15,081.85.

Solicitors:
Lance Lawson, Rotorua for Respondents