Lee v Lee

[2017] NZCA 470

IN THE COURT OF APPEAL OF NEW ZEALAND

CA458/2017
[2017] NZCA 470

BETWEEN

ROBERT LEE AS A TRUSTEE OF THE ESTATE OF JG LEE
Applicant

AND

GREGORY LEE
First Respondent

GREGORY LEE AND JANE LOIS LEE
AS TRUSTEES OF THE LEEROY FAMILY TRUST
Second Respondents

Hearing:	16 October 2017
Court:	Kós P, Harrison and Gilbert JJ
Appearances:	Applicant in person D A T Chambers QC for First and Second Respondents
Judgment:	18 October 2017 at 3.00 pm

JUDGMENT OF THE COURT

The application for an extension of time to apply for special leave to appeal is granted.

__________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

1. Robert Lee was ordered by Associate Judge Christiansen to provide security for costs on his claim against the respondents in the sum of $150,000 by way of a registered second mortgage over a property held by Mr Lee on trust.[1]  Mr Lee applied for a review of that decision.  This was granted by Davison J but only to the extent of reducing the amount of the security to $75,000.[2]  Mr Lee applied for leave to appeal to this Court but that application was declined by Davison J.[3] 

   [1]Lee v Lee [2016] NZHC 1073.

   [2]Lee v Lee [2017] NZHC 431.

   [3]Lee v Lee [2017] NZHC 1503.

2. Mr Lee now wishes to apply to this Court for special leave to appeal.  Although he filed his application for special leave within time and sent a copy to the respondents, the application was rejected because it was not accompanied by the filing fee or an application for a fee waiver.  Mr Lee was notified that his application had been rejected but by then the time for filing the application had expired.  Mr Lee rectified the defect promptly, within a few days.

3. The respondents accept that the delay is minor and no prejudice arises from the delay.  However, they submit that the application for an extension of time should be declined because the proposed appeal lacks merit and raises nothing of public importance. 

4. Mr Lee is self-represented.  His failure to appreciate the need to file an application for a fee waiver at the same time as his application for special leave to appeal is understandable.  The delay was very short, only a few days, and has caused no prejudice to the respondents.  In circumstances such as these, the merits of the proposed application for special leave to appeal are not relevant.  Mr Lee has a right to apply for special leave to appeal.  He should not be denied that right because of his minor and inconsequential oversight.  Whether his substantive application for special leave to appeal should be granted is a separate matter.  We consider that the Supreme Court’s reasoning in Almond v Read should be applied by analogy.[4]   

   [4]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.

5. We are satisfied that the interests of justice are best served by granting the application for an extension of time.  We express no view about the merits of the special leave application.  However, Mr Lee should focus on the issue of whether security for costs ought to have been ordered rather than the means by which any such security may be provided.       

Result

1. The application for an extension of time to apply for special leave to appeal is granted.

Solicitors:
Lance Lawson, Rotorua, for First and Second Respondents.