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Kong v Kang & Ors

Kong v Kang & Ors

Case [2014] VSC 28 14 February 2014

Summary Judgment

Without Prejudice Privilege

Admissibility of Evidence

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2012 05289

VIBOL KONG	Plaintiff
v
EANG KANG AND OTHERS (According to the attached schedule)	Defendants

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	9 October 2013
DATE OF JUDGMENT:	14 February 2014
CASE MAY BE CITED AS:	Kong v Kang & Ors
MEDIUM NEUTRAL CITATION:	[2014] VSC 28

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PRACTICE & PROCEDURE — Summary Judgment — Test for - ss 61, 63 Civil Procedure Act 2010 — No real prospect of success — Discretion under s 64 Civil Procedure Act 2010 —
Rule 22.02 Supreme Court (General Civil Procedure) Rules 2005.

EVIDENCE — Without prejudice privilege — Whether letter written by solicitor subject to privilege — Whether parties in dispute at time of letter — Evidence Act 2008 (Vic), s 131.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S. Anderson SC with Mr J. D. Loewenstein	Melbourne Legal Chambers
For the First and Fourth Defendants	Mr M. Pirrie	Frenkel Partners
For the Third Defendant	Mr J. D. S. Barber	De Wet Partnership

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Summary of conclusions................................................................................................................... 3

Background......................................................................................................................................... 4

The Third Agreement........................................................................................................................ 6

The defences....................................................................................................................................... 9

Kang and ATS (first and fourth defendants)............................................................................. 9
Taing (Third defendant)............................................................................................................. 11

Unconscientious taking advantage of a mistake.............................................................. 11
No consideration................................................................................................................... 12
Misrepresentation................................................................................................................. 12
Rescission............................................................................................................................... 13

Without Prejudice Privilege........................................................................................................... 13

The Critical Letter................................................................................................................. 14
Evidence Act 2008................................................................................................................. 18
Reasoning –without prejudice privilege........................................................................... 22

Summary judgment test.................................................................................................................. 23

Reasoning – summary judgment.................................................................................................. 24

Conclusions....................................................................................................................................... 27

HIS HONOUR:

Introduction

By Amended Summons filed 29 August 2013, the plaintiff (Kong) applies for summary judgment against the first defendant (Kang), the third defendant (Taing) and the fourth defendant (ATS) under r 22.02(1) of the Supreme Court (General Civil Procedure) Rules 2005 (the Rules) or, alternatively, under s 63 of the Civil Procedure Act 2010 (CPA).

The summary judgment sought is in respect of only part of the claims made in the Statement of Claim; in particular the claims pleaded in paragraphs 33 to 36. The substance of that claim is damages for breach of an agreement made on 16 May 2011 between Kong, Kang and Taing (the Third Agreement).[1] Under that agreement each of Eang Kang and Khay Taing agreed to pay to Vibol Kong –
[1]So called because that is how it is described in Statement of Claim.

(a) $950,000 on 16 November 2011;

(b) $950,000 on 16 May 2012;

(c) $150,000 within 28 days of the rezoning of any part of a property situated at and known as 64 Hutton Road Keysborough in Victoria (the Property).

There were other terms of the Third Agreement. They are referred to below. The Third Agreement was preceded by two earlier agreements and was followed by two later agreements, the fourth on 26 January 2012 and the fifth on 24 June 2012.

The application is supported by no fewer than six…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kong v Kang & Ors

Details

AGLC: Kong v Kang & Ors [2014] VSC 28
Case: [2014] VSC 28
Decision Date: 14 February 2014

CaseChat Overview and Summary

In Kong v Kang & Ors, the plaintiff, Mr. Kong, sought summary judgment against the defendants, Kang and others. The dispute involved claims related to breaches of contract and fiduciary duty, with the plaintiff alleging that the defendants had failed to account for profits and had acted in a manner that breached their fiduciary obligations. The case was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether the plaintiff had no real prospect of success and whether the defendants' communications with their solicitors were subject to without prejudice privilege. The court had to determine if the defendants' communications were made during a genuine attempt to resolve the dispute, which would make them privileged and inadmissible as evidence.

The court held that the plaintiff had no real prospect of success because the evidence did not support the claims sufficiently. The court found that the defendants' communications with their solicitors were indeed subject to without prejudice privilege, as they were made during genuine attempts to resolve the dispute. This privilege protected the communications from being used as evidence in the proceedings.

As a result, the court granted the defendants' application for summary judgment, dismissing the plaintiff's claims. The court also made an order that the defendants' privileged communications could not be used against them in the proceedings.

Orders