Li v Smith
[2025] NZCA 587
•6 November 2025 at 3.30 pm
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.
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
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.
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.
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.
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.
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].
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.
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,
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.
On 16 June 2025, Ms Li filed the case on appeal, but she has still not applied
for a fixture.
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
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.
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)].
The ultimate question is what the interests of justice require in the particular
circumstances of the case.[8]
Grounds of application
[8] At [38].
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
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
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].
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
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
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
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
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]
After assessing the overall interests of justice, we consider the application
should be granted.
Result
The application is granted. Ms Li is to apply for a fixture within 14 working
days of the date of this judgment.
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
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].
0