Kim v Lee & Ors (No 4)

[2006] NSWSC 1215

CITATION:	Kim v Lee & Ors (No 4) [2006] NSWSC 1215 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	13/11/06, 14/11/06
JUDGMENT DATE :	23 November 2006
JUDGMENT OF:	Gzell J
DECISION:	Plaintiff's proceedings dismissed. Plaintiff ordered to pay defendants' costs.
CATCHWORDS:	PROCEDURE - Dismissal of proceedings - Application by defendants at close of plaintiff's case under Uniform Civil Procedure Rules 2005, r 29.9 - Whether on the evidence, a judgment for the plaintiff could not be supported
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005
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

TUESDAY 23 NOVEMBER 2006

2199/05 CHUNG-YUP KIM v JAE KYUNG LEE & ORS (No 4)

JUDGMENT

Introduction

1 Chung-Yup Kim is the publisher of a Korean Language newspaper, Dae Yang Chu News. Jae Kyung Lee was the president of the Korean Society of Australia. He was also the publisher of another Korean Language Newspaper, Top Newspaper.

2 Published statements led to three current District Court proceedings for defamation. Mr Lee is the plaintiff and Mr Kim is the defendant in one of those proceedings. Mr Lee and 30 other members of the board and management committee of the Korean Society are plaintiffs and Mr Kim is the defendant in another proceedings. In the third proceedings, Mr Kim is the plaintiff and Mr Lee and the remainder of the board and management committee of the Korean Society are the defendants.

3 In the Supreme Court proceedings, Mr Kim claims against Mr Lee, the 30 other board and management committee members of the Korean Society and Mi Jin Lee, Mr Lee’s daughter, that the District Court proceedings were settled.

The primary claims

4 One of Mr Kim’s primary claims was for a declaration that in December 2004, Yun Hwa Lee, the third defendant, as agent for Mr Lee and the other board and management committee members of the Korean Society agreed with Mr Kim that Mr Kim would publish an apology to Mr Lee in his newspaper, Mr Lee would pay Mr Kim $200,000, and the parties would do all things necessary to discontinue the District Court proceedings.

5 Mr Kim published the apology but did not receive the $200,000 and the District Court proceedings are still on foot. Mr Kim sought specific performance of the agreement.

6 In light of the lack of evidence of actual or ostensible authority of Mr Lee, the third defendant, to bind the other defendants, Mr Kim did not press those claims.

7 In the alternative, Mr Kim sought a declaration that Ms Lee, as agent for her father and the other board and management committee members of the Korean Society, agreed with Mr Kim in February 2005 that Mr Kim would publish an apology to Mr Lee in four Korean community newspapers nominated by Ms Lee, that her father would forthwith pay $200,000 to Mr Kim, and the parties would do all things necessary to discontinue the District Court proceedings.

8 Mr Kim published the additional apologies. He sought specific performance of the agreement.

9 Again, in light of the lack of evidence of actual or ostensible authority in Ms Lee to bind her father or the other board and management members of the Korean Society those claims were not pressed.

The secondary claims

10 Mr Kim also sought a declaration that Mr Lee, the third defendant, agreed to pay $200,000 to Mr Kim, to execute an undertaking to indemnify Mr Kim to the extent of any damages and costs in the District Court proceedings with Mr Kim doing all things necessary to discontinue the District Court proceedings in which he was the plaintiff. Mr Kim sought specific performance of that agreement.

11 Mr Kim also sought a declaration that Ms Lee agreed to pay $200,000 to the plaintiff, to execute an undertaking to indemnify him to the extent of any damages and costs awarded against him in the District Court proceedings with Mr Kim doing all things necessary to discontinue the District Court proceedings in which he was plaintiff. Mr Kim sought specific performance of that agreement.

Dismissal of proceedings

12 At the close of Mr Kim’s case, the defendants made an application for an order for the dismissal of the proceedings on the ground that, on the evidence given, a judgment for Mr Kim could not be supported in terms of the Uniform Civil Procedure Rules 2005, r 29.9(1). It is in the following terms:

“A defendant in proceedings in which the plaintiff is the beginning party may apply to the court for an order:
(a) for the dismissal of the proceedings, or
(b) for the dismissal of the proceedings to the extent to which they concern any cause of action relevant to the plaintiff’s claim for relief against that defendant,
on the ground that, on the evidence given, a judgment for the plaintiff could not be supported.”

13 The Uniform Civil Procedure Rules 2005, r 29.9(3) provides that the plaintiff may argue or decline to argue the question raised by the application. Rule 29.9(4) provides that the court may not make an order under the rule, unless the plaintiff argues the question raised by the application and the defendant satisfies the court that, on the evidence given a judgment for the plaintiff could not be supported. Mr Kim elected to argue the question raised by the application.

14 At the conclusion of argument on the application, I indicated that I proposed to make an order under the Uniform Civil Procedure Rules 2005, r 29.9 and would give my reasons for so doing in due course.

Deficiency of pleading

15 It was submitted on behalf of the defendants that there was no pleading of facts to support the relief claimed in respect of Mr Lee, the third defendant, or in respect of Ms Lee. In order to deal with the secondary claims, however, I treat the pleadings as if amended to raise the agreements alleged in the relief claimed.

Mr Kim’s submission

16 The only final submission made on behalf of Mr Kim was that the evidence as a whole could be interpreted as expressing the view that Mr Lee was the person primarily liable but, in default of his performance, the relevant defendant, especially Ms Lee, would pay.

The claim against Mr Lee, the third defendant

17 There was nothing in the affidavit sworn by Mr Kim to ground the assertion that Mr Lee, the third defendant, agreed to pay $200,000 to Mr Kim. Nor was there any evidence of Mr Lee, the third defendant, agreeing to execute an undertaking to indemnify Mr Kim with respect to the District Court proceedings.

18 In cross-examination, Mr Kim disavowed any such undertakings by Mr Lee, the third defendant. The following exchange occurred:

“Q: Yun Hwa Lee never suggested that he would pay $200,000 to you himself, did he?
A: No.
Q: Nor did he say to you: “I will indemnify you in relation to any costs or judgments in any of the District Court proceedings which are on”, did he?
A: No, I did not hear that.
Q: Nor did he say to you: “If you publish the advertisement before chairman Lee’s birthday, I will pay you $200,000, did he?
A: Correct, he did not.
Q: Nor did he say, “If chairman Lee doesn’t pay, I’ll pay”?
A: Correct.
Q: So far as you were concerned in the conversation you had with Yun Hwa Lee, it was in relation to the idea that Mr Jae Kyung Lee would pay $200,000 or more?
A: Yes, correct.”

19 In none of the other evidence was the question of Mr Lee, the third defendant, paying Mr Kim $200,000 and indemnifying him with respect to the District Court proceedings touched upon.

20 On the evidence given, therefore, I am of the view that judgment for the plaintiff against Mr Lee, the third defendant, could not be supported.

The claim against Ms Lee

21 Nowhere in Mr Kim’s affidavit did he say that Ms Lee agreed to pay him $200,000 should her father not do so. Nor was there any mention of Ms Lee giving an undertaking to indemnify Mr Kim with respect to the District Court proceedings.

22 In Mr Kim’s affidavit, the closest the evidence came to the alleged agreement was the following:

“ Chung-Yup Kim : (Receiving the $1,000) Well, send the email as soon as possible, Ms Mi-Jin, once these advertisements go out, truly will the $200,000 be paid this time?

Mi-Jin Lee : Yes, who am I! Trust me. You need not worry this time. It is certain. But you must never tell this to the outside world. I am stressing it again that this advertisement must not give the impression to the Korean Community that this advertisement is being exchanged for money.”

23 In cross-examination, Mr Kim said that his reference was to $200,000 to be paid by Mr Lee. He had said that Ms Lee had made no mention of $200,000 before his meeting with her in December 2004. He had expected that she would hand her father’s cheque to him at that meeting. He agreed that Ms Lee made no mention of the $200,000 before a bankruptcy notice was served on Mr Kim at the meeting. And it was he who then raised the subject of $200,000.

24 Ms Lee told him that until Mr Lee’s family saw that Mr Kim was truly remorseful by repeatedly publishing different letters of apology in other Korean newspapers that he had done the wrong thing to her father, Mr Kim would not be reconciled with Mr Lee. But if Mr Kim followed the path she had explained, her father said he would pay up to $200,000.

25 Later in cross-examination, Mr Kim said that Ms Lee, in December 2004, had said if her father could not pay out the money, then she could pay on behalf of him.

26 There was no mention of this conversation in Mr Kim’s affidavit. Nor had he mentioned it in evidence in chief or earlier cross-examination. He said he had just remembered it in the witness box.

27 In a private letter to Ms Lee that Mr Kim placed in her letterbox some 14 days after the February 2005 meeting, there was no mention of this matter. Mr Kim said he forgot about the December 2004 promise of Ms Lee when he wrote the letter. And he did not recall the promise when he wrote later letters to Ms Lee in the middle of 2005.

28 Mr Kim accepted that he had no conversation with Ms Lee about the idea of her having some liability or responsibility if the proceedings in the District Court were continued.

29 Haeng-Jee Kim is the wife of Mr Kim. She gave evidence of attending the meeting in February 2005 with Ms Lee. She asserted that in the conversation with Ms Lee on that occasion Ms Lee said she would pay $200,000 to Mr Kim. Mrs Kim was in Court listening to the evidence of her husband.

30 In her affidavit, Mrs Kim had said that she asked if the advertisement was published was Ms Lee sure that the $200,000 would really be paid and reconciliation made. Ms Lee answered in the affirmative.

31 But the reference in her affidavit was to a promise by Mr Lee to pay $200,000. Ms Lee’s answer: “of course, have trust in me, truly, this time. We, both are tired of litigation matters, are we not?” does not, in my opinion, amount to an agreement by Ms Lee to pay the money if her father did not.

32 I reject the evidence of Mr Kim and Mrs Kim on this issue.

33 Mrs Kim only attended the meeting in February 2005. There was no suggestion by Mr Kim that any agreement by Ms Lee to pay the $200,000 was made at the February 2005 meeting. I reject Mrs Kim’s suggestion that the answer to her question constituted such an agreement.

34 Mr Kim’s assertion came late in his cross-examination. It was not referred to in his affidavit, nor in any of his correspondence including the letter shortly after the February 2005 meeting. I find his explanation that he had forgotten the conversation when he wrote that letter, and thereafter when he corresponded with Mrs Lee, and when he swore his affidavit, and in his evidence in chief, and in his early cross-examination, and that he only remembered it late in his cross-examination, to be highly implausible.

35 Furthermore, Mr Kim disavowed the agreement alleged in his claim for relief that Ms Lee had undertaken to indemnify him to the extent of any damages and costs awarded against him in the District Court proceedings.

36 Again, on the evidence given, I am of the view that a judgment for the plaintiff against Ms Lee could not be supported.

Conclusion

37 In terms of the Uniform Civil Procedure Rules 2005, r 29.9 I will make an order dismissing the plaintiff’s proceedings. I will make an order that the plaintiff pay the defendant’s costs.

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24/11/2006 - Wrong date entered - Paragraph(s) In the body of the judgment