Lee v Lee

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)

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.
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.
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.
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.
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

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.

CaseChat Overview and Summary

The Court of Appeal of New Zealand dealt with an application by Robert Lee, as a trustee, to extend the time limit for applying for special leave to appeal against a decision regarding security for costs. The case involved multiple respondents, including Gregory Lee, and trustees of the Leroy Family Trust. The initial decision required Robert Lee to provide security for costs in the form of a second mortgage over a property held in trust. This decision was reviewed and reduced by Davison J, but an appeal to the Court of Appeal was denied. Robert Lee subsequently sought special leave to appeal, but his application was rejected due to the absence of a filing fee or a fee waiver application. Although the application was filed within the time limit, it was not accompanied by the necessary fee, and the time limit expired before the defect was rectified. The respondents argued that the application should be dismissed due to the lack of merit and public importance, despite acknowledging the minor delay and lack of prejudice.

The legal issues before the Court of Appeal centred on whether the application for an extension of time should be granted, despite the procedural error, and whether the proposed appeal had merit. The Court had to balance the procedural requirements with the principle of not denying a party their right to appeal due to a minor oversight, particularly when the delay was brief and caused no prejudice. The Court considered the reasoning in Almond v Read, which emphasized the importance of not denying the right to appeal on minor procedural grounds.

The Court of Appeal granted the application for an extension of time, emphasizing that the interests of justice were best served by allowing the appeal. The Court did not express an opinion on the merits of the special leave application itself but noted that Robert Lee should focus on the substantive issue of whether security for costs should have been ordered rather than the method of providing such security. The decision highlights the Court's willingness to overlook minor procedural errors if they do not prejudice the opposing party and if they do not undermine the fundamental right to appeal.

The Court's final order was to grant the application for an extension of time, allowing Robert Lee to proceed with his application for special leave to appeal. The Court did not address the substantive merits of the proposed appeal but advised that the focus should be on the underlying issue of the security for costs. This decision underscores the importance of procedural fairness and the protection of a party's right to appeal, even in the face of minor procedural missteps.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established