Li v Lane

[2025] NZHC 1276

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1265

[2025] NZHC 1276

BETWEEN

XINFENG LI

Applicant

AND

JAMES TO’ESE LANE

Respondent

Hearing:

On the Papers

Counsel:

W C Pyke and K McDonald for Applicant T D Bloy for Respondent

C McLean for Vincent Lane

Judgment:

22 May 2025

JUDGMENT OF CHURCHMAN J

Background

[1]        Xinfeng Li (also known as Lily Li) has applied to stay enforcement of a costs order whereby she was ordered to pay costs in the sum of $88,731.1 The costs order was made on 30 January 2025 and the order was sealed on 13 March 2025.

[2]        The   costs   award    related    to    the    substantive    decision    issued    on 6 December 2024.2 The substantive decision had found that the late Frank John Lane had lacked testamentary capacity when he made a will on 8 April 2023 and was also subject to undue influence in relation to the making of that will. The decision validated an earlier will of 14 December 2010.

1      Lane v Li [2025] NZHC 37.

2      Lane v Li and Ors [2024] NZHC 3663.

LI v LANE [2025] NZHC 1276 [22 May 2025]

[3]        The applicant has appealed the substantive decision but has not appealed the costs decision.

The application

[4]        In support of the application for a stay the applicant relies on r 12 of the Court of Appeal (Civil) Rules 2005 and the Court’s inherent jurisdiction.

[5]        The applicant has filed an affidavit in support of the application. She deposes that she has deposited the total sum of the costs order of $88,731 into her solicitors’ trust account accompanied by an irrevocable instruction to pay that sum “to the other party” forthwith after any judgment of the Court of Appeal dismissing her appeal.

[6]        Attached was a statement from the applicant’s solicitors confirming deposit of the funds and an email from the applicant to her solicitors confirming instructions to pay the $88,731 to the lawyers acting in the estate of Frank Lane if the applicant’s appeal to the Court of Appeal fails. This instruction was said to be irrevocable.

[7]        The applicant claims in her affidavit that if she pays the costs to the estate and her appeal succeeds she will have no security that the costs will be repaid to her. She says:

The other party is unemployed. It is not apparent to me that the other party has means to satisfy any costs judgment in my favour on the appeal or, if the High Court’s judgment is reversed, any costs order in my  favour  in  the High Court.

[8]        James Lane did not bring these proceedings personally but in his capacity as a trustee of the estate of the late Frank Lane. It is the estate that the costs are payable to, not James Lane personally. Mr Lane’s personal financial situation is therefore irrelevant to whether the applicant might have grounds for being concerned about whether the sum awarded as costs would be repaid if the applicant’s appeal is successful.

Legal issues

[9]        Counsel for James Lane has filed submissions by way of memorandum opposing the application. He submits that the plaintiff, being the successful party, is entitled to receive the costs awarded which has not been subject of any appeal. Counsel disputes the application of r 12 of the Court of Appeal (Civil) Rules and says that this rule does not apply because the applicant has not appealed the costs judgment.

[10]      He submits that a substantial miscarriage of justice is not likely to result from the refusal to stay enforcement of the costs order.

[11]      Counsel accepts that the Court has an inherent jurisdiction but says that there is no basis for the Court to engage that jurisdiction.

[12]      Counsel submits that the applicant’s appeal will not be rendered nugatory by the lack of a stay; that the applicant has not prosecuted her appeal with due diligence; that James Lane will be injuriously affected by the stay (no details given); and that third parties (unspecified) will be affected if the stay is granted.

[13]      It is further submitted that there is no novelty or importance in the questions raised by the applicant in her appeal such as would justify a stay being granted. It is further submitted that the appeal has no merit.

Analysis

[14]Rule 12(3) of the Court of Appeal (Civil) Rules provides:

(3)      Pending the determination of an application for leave to appeal or an appeal, the Court appealed from or the Court may, on an interlocutory application —

(a)      order a stay of the proceedings in which the decision was given or a stay of the execution of the decision; or

(b)      grant any interim relief.

[15]      I note that in the case of Churchill Group Holdings v ARAL Property Holdings Ltd3 Venning J stated at [18]:

As noted, because an appeal has not yet been lodged against the costs judgment, r 12 of the Court of Appeal (Civil) Rules has not been engaged. Strictly the application must be regarded as an application under r 17.29.

[16]      I acknowledge that there have been more recent cases where the application of r 17.29 had been doubted.4

[17]     While its not necessary for me to resolve the issue in these proceedings, (as it is clear the Court would have inherent jurisdiction in any event) I prefer the approach of Venning J and Churchill Group Holdings v ARAL Property Holdings Ltd.

[18]      In terms of r 17.29 of the High Court Rules 2016, the party seeking a stay is obliged to establish that a substantial miscarriage of justice would likely to result if the judgment were enforced.

[19]      The miscarriage of justice relied upon by the applicant is James Lane’s claimed impecuniosity. I have already explained why that is incorrect.

[20]      There is no reason to think that the estate of Frank Lane is impecunious or would be unable to return the costs award if the applicant’s appeal is successful.

[21]      Neither is there any basis for the suggestion that the appeal would be rendered nugatory if enforcement of the costs decision is not stayed. The appeal of the substantive decision will still be able to proceed in exactly the same manner as it is now whether the costs award is enforced or not.

[22]Accordingly, the application for a stay is dismissed.

3      Churchill Group Holdings v  ARAL  Property  Holdings  Ltd  HC  AK  CIV-2001-404-002302 27 January 2010.

4      See Mills v Dalzell [2023] NZHC 1530 and Sullivan v Wellsford Properties Ltd [2018] NZCA 168.

[23]      Costs in relation to the stay application are reserved to be fixed once the applicant’s appeal against the substantive decision is determined or abandoned.

Churchman J

Solicitors:

Gallie Miles, Hamilton for Applicant

Evolution Lawyers, Auckland for James Lane McLean Law, Auckland for Vincent Lane