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)

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.
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.
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.
The respondent also seeks costs for preparation of the appeal.
Counsel relies on r 53G of the Court of Appeal (Civil) Rules 2005 to support the applications for costs on the interlocutory hearings.
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].

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].

However, costs were reserved on the application for leave to appeal.[8] The presumption under r…

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 [2019] NZCA 668
Case: [2019] NZCA 668
Decision Date: 19 December 2019 at 12 noon

CaseChat Overview and Summary

In the case of Lee v Lee, the appellant, Robert Lee, as trustee of the estate of J G Lee, appealed against the decision of the Court of Appeal of New Zealand. The first respondent was Gregory Lee, and the second respondents were Gregory Lee and Jane Lois Lee as trustees of the Leroy Family Trust. The dispute centred around the costs incurred during the appeal process, specifically the costs associated with various interlocutory applications and the preparation of the case on appeal. The Court of Appeal was required to determine whether the respondents were entitled to the costs they sought and, if so, in what amount. The Court found that the respondents were entitled to costs for the application for leave to appeal, which was reserved, and a quarter of the standard time allowed for the preparation of the case on appeal. The total costs awarded amounted to $15,081.85, which the appellant was ordered to pay to the respondents.

The court examined the relevant rules and precedents to determine the entitlement to costs. It found that the appellant, being a litigant in person, was not entitled to costs and that his application for leave to appeal had been dismissed. The court declined to award costs for the application for an extension of time as costs were not reserved as required by the rules, and the respondents had accepted the minor delay. The application for waiver of security was not considered analogous to other interlocutory applications, and no order for costs was made. Similarly, the application to extend time to apply for a hearing date was not deemed warranting costs as the opposition was withdrawn. However, the court found that the respondents were entitled to costs for the application for leave to appeal as costs were reserved and the respondents' position was vindicated. A contribution towards the costs for the preparation of the case on appeal was also deemed appropriate.

The Court of Appeal ordered that the appellant must pay the respondents one set of costs amounting to $15,081.85. This included costs for the application for leave to appeal, a quarter of the standard time allowed for the preparation of the case on appeal, and disbursements. The decision was based on the rules governing costs in the Court of Appeal and the precedents that established the criteria for awarding costs in such circumstances. The court's judgment was clear and provided a detailed breakdown of the costs awarded, ensuring transparency and fairness in the resolution of the dispute.

Orders