LEE v LEE [2018] NZHC 991

LEE v LEE [2018] NZHC 991

Although the threshold in r 5.45(1)(b) (there is reason to believe plaintiffs may be unable to pay defendants' costs) was met, the court declined to order security because the plaintiffs presented a reasonable evidential foundation for their constructive trust claim, access to justice outweighed the defendants'...

Source-derived case information.

Citation
[2018] NZHC 991
Parties
Plaintiffs: DONKEUN LEE AND ILSOOK KANG; First Defendants: HEE HYUN LEE AND MYUNG JUN LEE as executors of the estate of TECK-KEUN LEE; Second Defendants: HEE HYUN LEE AND MYUNG JUN LEE as executors of the estate of JUNG JA YUN
Court
High Court
Jurisdiction
New Zealand
Judgment Date
8 May 2018
Procedural Posture
Civil (constructive Trust/property) / Interlocutory Application for Security for Costs
Outcome
Defendants' application for security for costs dismissed
Legal Topics
Constructive Trust, Security for Costs, Costs Orders, Residence for Security for Costs
Equity Property Law Civil Procedure Constructive Trust Security for Costs Costs Orders Residence for Security for Costs

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Parties

DONKEUN LEE AND ILSOOK KANG

Plaintiffs

HEE HYUN LEE AND MYUNG JUN LEE as executors of the estate of TECK-KEUN LEE

First Defendants

HEE HYUN LEE AND MYUNG JUN LEE as executors of the estate of JUNG JA YUN

Second Defendants

Procedural Posture

Civil (constructive Trust/property) / Interlocutory Application for Security for Costs

Legal Issues

  1. 1 Whether security for costs should be ordered under High Court Rule 5.45
  2. 2 Whether the plaintiffs are resident in New Zealand for the purposes of Rule 5.45
  3. 3 Whether there is reason to believe the plaintiffs will be unable to pay the defendants' costs if unsuccessful

Ratio Decidendi

Although the threshold in r 5.45(1)(b) (there is reason to believe plaintiffs may be unable to pay defendants' costs) was met, the court declined to order security because the plaintiffs presented a reasonable evidential foundation for their constructive trust claim, access to justice outweighed the defendants' risk, and absent exceptional circumstances costs being only a contribution did not justify stifling the claim.

Court Disposition

Defendants' application for security for costs dismissed

Orders

  • Application for security for costs dismissed.
  • Costs reserved for determination in connection with the substantive proceeding.