Kim v Lee & Ors

[2006] NSWSC 1211

CITATION:	Kim v Lee & Ors [2006] NSWSC 1211
HEARING DATE(S):	13/11/06, 14/11/06
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	11/13/2006
DECISION:	Evidence of earlier unsuccessful attempts to settle struck out.
CATCHWORDS:	EVIDENCE - Admissibility and Relevancy - Declaration sought that 3rd defendant as agent for 1st and 3rd to 32nd defendants settled District Court defamation actions - Affidavit of plaintiff contained details of earlier unsuccessful attempt to settle the District Court proceedings - Whether admissible in absence of any evidence that person had any authority to negotiate on behalf of defendants - Whether admissible to rebut defence claim that they never offered to pay money to plaintiff
PARTIES:	Chung-Yup Kim - Plaintiff Jae Kyung Lee - 1st Defendant Mi Jin Lee - 2nd Defendant Yun Hwa Lee - 3rd Defendant Woon Tack Sim - 4th Defendant Young Sun Park - 5th Defendant Jin Soo Kang - 6th Defendant Tae Hwa Lee - 7th Defendant Tae Hong Kim - 8th Defendant In Guk Kim - 9th Defendant Jae Kuk Cho - 10th Defendant Bok Kil Lee - 11th Defendant Sang Ki Jin - 12th Defendant Seung Yeul Park - 13th Defendant Ho Sung Lee - 14th Defendant Jong Sang Ahn - 15th Defendant Sung Ho Kim - 16th Defendant Bo Young Woo - 17th Defendant Seok Ro Baek - 18th Defendant Bae Jin Han - 19th Defendant Kang Woo Lee - 20th Defendant Hyung Gu Choi - 21st Defendant Hak Joo Park - 22nd Defendant Sang Doo Ok - 23rd Defendant Hye Ryun Lee - 24th Defendant Bong Jae Sin - 25th Defendant Yun Sik Hong - 26th Defendant Sang Min Lee - 27th Defendant Geun Choi - 28th Defendant Yeon Hyung Lee - 29th Defendant Ki Seon Lee - 30th Defendant Myung Ho Park - 31st Defendant Nae Yeon Mun - 32nd Defendant
FILE NUMBER(S):	SC 2199/05
COUNSEL:	Christopher Dibb - Plaintiff Nigel Cotman SC - Defendants
SOLICITORS:	Breene & Breen Solicitors - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

MONDAY 13 NOVEMBER 2006

2199/05 CHUNG-YUP KIM v JAE KYUNG LEE & ORS

EX TEMPORE JUDGMENT

1 The affidavit of Chung-Yup Kim, the plaintiff, contains in par 13 to par 16 details of a conversation that Young Kil Choi had with the plaintiff. The tender is based upon two grounds. First, the authority of Mr Choi to speak on behalf of the 32 defendants. There is nothing in the passages in par 13 to par 16 that suggests Mr Choi had any authority to negotiate on behalf of the defendants.

2 The second basis of tender is that he spoke in terms of the payment to the plaintiff of $200,000.00. That there was an agreement to pay is denied by the defendants. They say they never offered to pay $200,000.00.

3 The problem for Mr Kim is that the negotiations by Mr Choi came to nought as is recorded in the affidavit of the Mr Kim at par 16. Mr Choi said that he had spent a lot of time and effort as well as many phone calls and he was disappointed that no reconciliation had been achieved. Mr Kim responded "I am sorry. Although there is no successful result you worked so hard. Thank you."

4 In my view, the evidence is irrelevant to the two subsequent agreements upon which Mr Kim relies in his pleading. Mr Choi was not party to the negotiations of either of those later agreements. The plaintiff has failed to establish any relevance of the testimony to the issues that I have to determine.

5 I therefore strike out par 13 to par 16 of Mr Kim's affidavit.

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