LEE AS TRUSTEE OF THE ESTATE OF J G LEE v LEE [2019] NZCA 668

LEE AS TRUSTEE OF THE ESTATE OF J G LEE v LEE [2019] NZCA 668 [19 December 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA458/2017[2019] NZCA 668BETWEEN ROBERT LEE AS TRUSTEE OF THEESTATE OF J G LEEAppellantAND GREGORY LEEFirst RespondentGREGORY LEE AND JANE LOIS LEE ASTRUSTEES OF THE LEEROY FAMILYTRUSTSecond RespondentsCourt: Stevens, Venning and Dunningham JJCounsel: Appellant in personD A T Chambers QC and A H H Choi for RespondentsJudgment:(On the papers)19 December 2019 at 12 noonCOSTS JUDGMENT OF THE COURTThe appellant must pay the respondents one set of costs of $15,081.85.____________________________________________________________________REASONS OF THE COURT(Given by Venning J)[1] In a judgment dated 30 July 2019 this Court dismissed the appellant's appealand ordered:11 Lee v Lee [2019] NZCA 345.The appellant must pay the respondents one set of costs for a standard appealon a band A basis and usual disbursements.[2] The appellant applied for leave to appeal to the Supreme Court.That application was dismissed on 8 November 2019.2[3] Counsel for the respondents has now filed a memorandum seeking costs anddisbursements in the sum of $20,768.35. In arriving at that figure counsel forthe respondents seeks costs on the following interlocutory applications thatthe appellant made during the course of the appeal process:(a) an application for an extension of time;3(b) an application for leave to appeal;4(c) an application for waiver of security for costs on appeal;5 and(d) an application for extension of time for a hearing date application.[4] The respondent also seeks costs for preparation of the appeal.[5] Counsel relies on r 53G of the Court of Appeal (Civil) Rules 2005 to supportthe applications for costs on the interlocutory hearings.[6] The appellant opposes the respondents' application for costs and rather submitsthat he should receive costs on the applications. He also seeks to challenge the awardof costs on the substantive appeal. There is no basis for either submission. As a litigantin person Mr Lee is not entitled to costs.6 And, as noted, Mr Lee's application forleave to appeal from this Court's decision has been dismissed.2 Lee v Lee [2019] NZSC 124.3 Lee v Lee [2017] NZCA 470.4 Lee v Lee [2018] NZCA 282.5 See Lee v Lee [2019] NZCA 3.6 McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335 at [55] and [88].Extension of time[7] We decline the respondents' application for costs on the application for anextension of time. Ms Chambers QC relies upon r 53G(4) but costs were not reservedas is required by the rule. Further, as the Court noted, the respondents accepted thedelay was minor and no prejudice arose from it.7 The opposition to the extension oftime was, in the circumstances, unreasonable.Application for leave to appeal[8] However, costs were reserved on the application for leave to appeal.8The presumption under r 53G(4) applies. The respondents' position in opposing leavewas vindicated by the outcome of the appeal. The respondent is entitled to costs withrespect to that application for leave to appeal.Waiver of security[9] We decline the application for costs on the application for waiver of securityfor costs. We do not consider that application to be analogous with other interlocutoryapplications under r 53G. The Court made no order for costs. They were not reserved.Further, the appellant was ultimately successful on that application, albeit he wasgranted an indulgence.Hearing date extension[10] Nor are we prepared to grant costs on the appellant's application to extend timeto apply for a hearing date and to complete the case on appeal. As the respondentsnote, the opposition was ultimately withdrawn when the additional time sought hadpassed without the application being resolved.Preparation of the case on appeal[11] That leaves the costs sought for the preparation of the case on appeal.The respondent did identify a number of documents the appellant had failed to include7 Lee v Lee, above n 3, at [3].8 Lee v Lee, above n 4, at [5].in the case on appeal. The respondent collated them into an additional two volumes.The two volumes prepared by the respondent contained relevant documents.A contribution towards the respondents' costs for that exercise is appropriate.We consider one quarter of the standard time allowed to be reasonable.Substantive appeal[12] The appellant challenges the award of costs for a day on the basis the hearingwas completed in a half day. However, the wording to the schedule to the rulescontemplates costs on a substantive hearing being measured in whole days (as opposedto interlocutory applications which are measured in half days).9[13] Costs and disbursements calculated on the above basis for a standard appealon a band A basis are $15,081.85 made up as follows:Application for leave to appeal $3,345.00Case on appeal: 25% of the one-day allowance $557.50Substantive appeal $8,920.00$12,822.50Disbursements $2,259.35Total: $15,081.85Result[14] The appellant must pay the respondents one set of costs of $15,081.85.Solicitors:Lance Lawson, Rotorua for Respondents9 Court of Appeal (Civil) Rules 2005, sch 2.