LEE v LEE [2017] NZHC 712

LEE v LEE [2017] NZHC 712

Davison J's clear order that non-provision of the ordered security for costs results in a stay must be given effect; the stay is maintained and a short unless order to file remaining affidavits is reasonable; it is inappropriate to direct the Registrar to sign a mortgage over trust property without evidence and...

Source-derived case information.

Citation
[2017] NZHC 712
Parties
First Plaintiff: Robert Lee; Second Plaintiff: Helen Heard; First Defendant: Gregory Lee; Second Defendant: Gregory Lee and Jane Lee as Trustees of the Leeroy Family Trust
Court
High Court
Jurisdiction
New Zealand
Judgment Date
11 April 2017
Procedural Posture
Civil Estate/trust Dispute / Pre Trial (five Day Fixture Listed; Stayed)
Outcome
Proceeding stayed (in accordance with Davison J's order); plaintiffs given five working days to file remaining affidavits or proceeding will be struck out; defendants' application to vary security for costs (including directing Registrar to sign mortgage) declined; costs award to Mr Pryce $1,338; costs of the...
Legal Topics
Security for Costs, Stay of Proceedings, Unless Order, Timetable Compliance, Subpoena, Strike Out for Non Compliance, Appointment of Trustees
Civil Procedure Trusts and Equity Costs Estate/probate Law Security for Costs Stay of Proceedings Unless Order Timetable Compliance +3 more

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Parties

Robert Lee

First Plaintiff

Helen Heard

Second Plaintiff

Gregory Lee

First Defendant

Gregory Lee and Jane Lee as Trustees of the Leeroy Family Trust

Second Defendant

Procedural Posture

Civil Estate/trust Dispute / Pre Trial (five Day Fixture Listed; Stayed)

Legal Issues

  1. 1 Whether the stay ordered by Davison J should be lifted despite non-provision of security for costs
  2. 2 Whether the Court should direct the Registrar to sign a mortgage to impose security over trust property
  3. 3 Whether the proceeding should be struck out for deliberate non-compliance with timetabling and security orders

Ratio Decidendi

Davison J's clear order that non-provision of the ordered security for costs results in a stay must be given effect; the stay is maintained and a short unless order to file remaining affidavits is reasonable; it is inappropriate to direct the Registrar to sign a mortgage over trust property without evidence and opportunity for the co-trustee to be heard; indemnity costs for the withdrawn subpoena were not justified but a schedule 2B award is warranted.

Court Disposition

Proceeding stayed (in accordance with Davison J's order); plaintiffs given five working days to file remaining affidavits or proceeding will be struck out; defendants' application to vary security for costs (including directing Registrar to sign mortgage) declined; costs award to Mr Pryce $1,338; costs of the...

Orders

  • Proceeding stayed
  • First and second plaintiffs to file all remaining affidavits (two substantive affidavits for Mr Robert Lee and any reply affidavits) within five working days or the proceeding will be struck out