LEE v LEE [2017] NZCA 470
The extension of time was granted because the delay was very short, caused no prejudice, the applicant was self-represented and the omission to file a fee or fee waiver was an understandable, minor oversight; accordingly the interests of justice required allowing the application for extension, with no finding on the...
Source-derived case information.
- Citation
- [2017] NZCA 470
- Parties
- Applicant: Robert Lee as a trustee of the estate of JG Lee; First Respondent: Gregory Lee; Second Respondents: Gregory Lee and Jane Lois Lee as trustees of the Leeroy Family Trust
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 18 October 2017
- Procedural Posture
- Application for Extension of Time to Apply for Special Leave to Appeal / Court of Appeal Determination on Extension Application
- Outcome
- Application for an extension of time to apply for special leave to appeal granted
- Legal Topics
- Extension of Time, Special Leave to Appeal, Security for Costs, Fee Waiver
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Lee as a trustee of the estate of JG Lee
Applicant
Gregory Lee
First Respondent
Gregory Lee and Jane Lois Lee as trustees of the Leeroy Family Trust
Second Respondents
Procedural Posture
Application for Extension of Time to Apply for Special Leave to Appeal / Court of Appeal Determination on Extension Application
Legal Issues
- 1 Whether to grant an extension of time to apply for special leave to appeal
- 2 Whether the merits of the proposed appeal are relevant to an application for an extension of time
- 3 Whether a short delay caused by failure to file a fee waiver justifies rejection of the special leave application
Ratio Decidendi
The extension of time was granted because the delay was very short, caused no prejudice, the applicant was self-represented and the omission to file a fee or fee waiver was an understandable, minor oversight; accordingly the interests of justice required allowing the application for extension, with no finding on the merits of the substantive special leave application.
Court Disposition
Application for an extension of time to apply for special leave to appeal granted
Orders
- The application for an extension of time to apply for special leave to appeal is granted.
Full Case Text
Judgment text and source record
1 paragraphs
LEE v LEE [2017] NZCA 470 [18 October 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA458/2017[2017] NZCA 470BETWEEN ROBERT LEE AS A TRUSTEE OF THEESTATE OF JG LEEApplicantAND GREGORY LEEFirst RespondentGREGORY LEE AND JANE LOIS LEEAS TRUSTEES OF THE LEEROYFAMILY TRUSTSecond RespondentsHearing: 16 October 2017Court: Kós P, Harrison and Gilbert JJAppearances: Applicant in personD A T Chambers QC for First and Second RespondentsJudgment: 18 October 2017 at 3.00 pmJUDGMENT OF THE COURTThe application for an extension of time to apply for special leave to appeal is granted.__________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] 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 aregistered 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[2] 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.[3] 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.[4] 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 theSupreme Court's reasoning in Almond v Read should be applied by analogy.4[5] 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 whether1 Lee v Lee [2016] NZHC 1073.2 Lee v Lee [2017] NZHC 431.3 Lee v Lee [2017] NZHC 1503.4 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.security for costs ought to have been ordered rather than the means by which any such security may be provided.Result[6] 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.