Li v Smith

[2025] NZCA 587

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA37/2025

[2025] NZCA 587

BETWEEN	XINFENG LI
Applicant
AND	NIGEL PHILIP SMITH AND MARCUS
ELDON DIPROSE AS
ADMINISTRATORS OF THE ESTATE OF
FRANK JOHN LANE
Respondents

Court:	Katz and Collins JJ
Counsel:	W C Pyke for Applicant
T D Bloy and L D H Kim for Respondents

for a fixture. The substantive application in the High Court was brought by Mr James

Lane (Mr Lane Jnr) who was named as applicant because he was, at the time, the

trustee of the estate of his late father, Mr Frank Lane (Mr Lane Snr). However,

Mr Lane Jnr is no longer trustee of the estate as Messrs Nigel Smith and

Marcus Diprose were appointed administrators in late 2024.

1. The litigation focuses upon the validity of a will made by Mr Lane Snr on

8 April 2023 (the 2023 will), some four weeks before he died.

Background

1. On 14 December 2010, Mr Lane Snr made a will in which the residue of his

estate was to be divided among five of his six children.

1. In early April 2023, Mr Lane Snr was admitted to hospital to remove a tumour.

The surgery was not successful. Medical staff recorded that, following his surgery,

Mr Lane Snr exhibited signs of confusion, delirium, disorientation and agitation.

1. On 8 April a lawyer visited Mr Lane Snr in hospital and took instructions to

prepare the 2023 will. During this a number of friends and members of Mr Lane Snr’s

family were present, including Mr Lane Jnr and two other children, as well as Ms Li.

The consultation was recorded on video.

1. The 2023 will contained a $500,000 bequest in favour of Ms Li. The remainder

of the estate was to be equally divided amongst just three of Mr Lane Snr’s children,

including Mr Lane Jnr.

1. Mr Lane Jnr successfully challenged the validity of the 2023 will. In a

judgment delivered on 6 December 2024, Churchman J held that the 2023 will was

invalid because Mr Lane Snr lacked testamentary capacity and was subject to undue

influence.[1] The Judge granted probate in respect of the will created in 2010.

[1]       Lane v Li [2024] NZHC 3663 at [238].

1. Ms Li filed a notice of appeal on 23 January 2025. There were, however,

defects in the notice which required an extension of time in which to bring the appeal

under r 29A of the Rules. The appeal was formally brought on 26 February 2025.

1. Rule 43(1) provides for a three-month time frame in which an appellant is

required to file a case on appeal and apply for a fixture unless an extension of time is

granted under r 43(2).[2]

[2]       Under r 43(1B) of the Court of Appeal (Civil) Rules 2005, a Registrar may also, in certain cases,

1. On 29 April 2025, Ms Li applied for an extension of time in which to file the

case on appeal and apply for a fixture.

1. On 16 June 2025, Ms Li filed the case on appeal, but she has still not applied

for a fixture.

1. We are now required to determine her application to extend time to file the case

on appeal and to also apply for a fixture.

Governing principles

1. In Yarrow v Westpac New Zealand Ltd,[3] this Court determined that the

   [3]       Yarrow v Westpac New Zealand Ltd [2018] NZCA 601 at [4], citing Kipping v Sharrock [2018]

principles articulated by the Supreme Court, in Almond v Read,[4] apply to applications

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

under r 43 of the Rules. Thus, the factors guiding the exercise of the discretion to

grant an extension of time include:[5]

[5] At [38].

(a)	the length of the delay;
(b)	the reasons for the delay;
(c)	the conduct of the parties, and particularly the applicant;
(d)	any prejudice or hardship to the respondents; and
(e)	the significance of the issues raised by the proposed appeal, both to the

parties and more generally.

1. The merits of the proposed appeal may be relevant but any consideration of the

merits must necessarily be limited.[6] Refusing an extension of time based substantially

on the lack of merit of the proposed appeal should only occur where the appeal is

clearly hopeless and the lack of merit is readily apparent.[7]

[6]       At [39(c)].

[7]       At [39(c)].

1. The ultimate question is what the interests of justice require in the particular

circumstances of the case.[8]

Grounds of application

[8] At [38].

1. Ms Li explains that she had difficulty in assembling the case on appeal. The

evidence and hearing in the High Court was complicated and it required considerable

effort to prepare the case on appeal. Ms Li is represented by new counsel to conduct

the appeal and her new counsel submits that she had been supplied with an incomplete

record of the High Court proceedings and that further delays were incurred when

corresponding with the respondent’s lawyers.

Grounds of opposition

1. Four key points can be distilled from the submissions opposing the application:

(a)	There is no legitimate basis for the delay.
(b)	Despite having been granted extensions of time, Ms Li has frequently

missed deadlines.

(c)	The appeal is devoid of merit.
(d)	The estate and beneficiaries have suffered prejudice through the delays

to date. The estate is incurring legal fees and the administrators say there are now insufficient funds in the estate to pay Ms Li the $500,000

she is seeking to recover.

Analysis

Length of delay

1. The case on appeal was filed approximately 14 working days outside of the

time limit set by r 43(1) of the Rules. This delay can fairly be characterised as short.[9]

Reasons for the delay

[9]       See Stringer v Craig [2020] NZCA 294 at [4].

1. We accept Ms Li’s explanation for the delays. The issues in the High Court

included medical evidence about the competence of Mr Lane Snr on 8 April 2023 as

well as evidence from those who were visiting him in hospital. A number of exhibits

were difficult to read. These matters, when combined with the delays caused by new

counsel being briefed, adequately explain the delay.

Conduct of the parties

1. While Ms Li may not have been particularly diligent, her conduct has not been

so egregious as to weigh in any meaningful way against her application.

Prejudice to the respondents

1. We accept that the estate will be incurring legal fees but that is an inevitable

consequence of a party exercising their right to appeal in a case such as this. We also

are not persuaded that the application should be declined because the estate has been

substantially distributed.[10] The administrators have been aware of the appeal since at

least 26 February 2025 and, regardless of what they think of the merits of the appeal, they needed to be cautious about making significant distributions while the appeal was

pending.

Significance of the issues to the parties

[10]      The administrators say the estate’s bank funds had dwindled to $132,303.88 by 22 May 2025 and

1. The appeal does not raise any matter of general or public importance. The

issues on appeal are, however, significant to Ms Li, the administrators and the

beneficiaries.

Merits

1. It is difficult at this stage to engage in any depth with the merits of the appeal.

As the Supreme Court said in Almond v Read, any consideration of the merits in this

context has to be relatively “superficial”.[11] Suffice to say, while Ms Li’s appeal may

not be particularly strong, it is not so devoid of merit that she should be denied the

opportunity to have her appeal heard.[12]

Overall interests of justice

[11]      Almond v Read, above n 4, at [39(c)].

[12]      See Slater v Blomfield [2015] NZCA 240 at [18] and [33]. See also Robertson v Gilbert [2010]

1. After assessing the overall interests of justice, we consider the application

should be granted.

Result

1. The application is granted. Ms Li is to apply for a fixture within 14 working

days of the date of this judgment.

1. Costs are reserved and will be determined at the time the appeal is heard or

otherwise disposed of.

Solicitors:

Gallie Miles, Te Awamutu for Applicant

Evolution Lawyers, Auckland for Respondents

Judgment:	6 November 2025 at 3.30 pm
(On the papers)

JUDGMENT OF THE COURT

A	The application is granted. Ms Li is to apply for a fixture within 14 working
days of the date of this judgment.
B	Costs are reserved and will be determined at the time the appeal is heard or
otherwise disposed of.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

1. Ms Xinfeng Li applies for an extension of time under r 43(2) of the Court of

Appeal (Civil) Rules 2005 (the Rules) in which to file the case on appeal and to apply

LI v NIGEL PHILIP SMITH AND MARCUS ELDON DIPROSE AS ADMINISTRATORS OF THE ESTATE

OF FRANK JOHN LANE [2025] NZCA 587 [6 November 2025]

extend the time in which to apply for a fixture and file the case on appeal.

NZCA 289 at [12].

that the $500,000 “gift” would be incapable of being performed, with the remaining monies

instead forming part of the residuary estate of which Ms Li would not, they argue, be a beneficiary.

Against this, however, Ms Li says that the issue of whether the gift can be performed is a matter

for the substantive appeal, that the will does not expressly require the $500,000 to come from the

“bank funds”, and that it does not exclude her from being a final beneficiary.

NZCA 429 at [24].