Lee v Kwak

Case [2017] NSWDC 202


District Court


New South Wales

Medium Neutral Citation: Lee v Kwak [2017] NSWDC 202
Hearing dates: 21 March 2017 – 23 March 2017, 11 May 2017 – 12 May 2017, 22 June 2017
Date of orders: 03 August 2017
Decision date: 03 August 2017
Jurisdiction:Civil
Before: Dicker SC DCJ
Decision:

(1) Judgment for the plaintiff on the Statement of Claim;
(2) The parties are to bring in short minutes of order within 7 days reflecting these reasons in relation to the amount of the claim of the plaintiff and interest;
(3) The defendant is to pay the plaintiff’s costs of the Statement of Claim as agreed or assessed;
(4) The Second Cross-Claim is dismissed. Judgment for the cross-defendant on the Second Cross-Claim;
(5) The cross-claimant is to pay the costs of Mr Lee of the second cross-claim as agreed or assessed;
(6) Liberty to the parties to apply on two business days’ notice for different orders to those in (3) and (5) above;
(7) Exhibits to be returned after 28 days.

Catchwords:

Contract – identity of contracting party – agency - whether disclosed principal - whether variation of contract agreed – whether estoppel established

 

Torts – inducing breach of contract – intentional interference with contractual relations – injurious falsehood

 

Company law – whether conduct of unauthorized third parties to enter contract purportedly on behalf of company ratified

  Damages – whether assumptions for expert valuation report established – effect of failure to establish assumptions - loss of a chance in relation to a commercial contract – assessment of the value of the loss of a chance
Legislation Cited: Corporations Act 2001 (Cth)
Evidence Act 1995 (NSW)
Foreign Judgments Act 1991 (Cth)
Foreign Judgments Regulations 1992 (Cth)
Limitation Act 1969 (NSW)
Trade Practices Act 1974 (Cth)
Cases Cited: All State Life Insurance Co v ANZ Banking Group Ltd (1995) 58 FCR 26
Ballard v Multiplex [2012] NSWSC 426
Bennett v Strauss [2016] NSWCA 324
Bodycorp Repairers Pty Ltd v AAMI [2015] VSCA 73
Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369
Briginshaw v Briginshaw (1938) 60 CLR 336
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1992] HCA 54
Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising and Addressing Co Pty Ltd (1975) 133 CLR 72
Daebo Shipping Co Ltd v The Ship Go Star [2012] FCAFC 156
Deepcliffe Pty Ltd v Council of the City of the Gold Coast [2011] QCA 342
Donaldson v Natural Springs Australia Ltd [2015] FCA 498
Giliberto v Kenny (1983) 48 ALR 620
Hart Security Australia Pty Ltd v Boucousis [2016] NSWCA 307
Integrated Asset Management Pty Ltd v Trans Communications Pty Ltd [2015] NSWSC 984
Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114
Leybourne v Permanent Custodians Ltd [2010] NSWCA 78
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
Maynegrain Pty Ltd v Compafina Bank [1982] 2 NSWLR 141
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AGLC
Lee v Kwak [2017] NSWDC 202
Case
[2017] NSWDC 202
Decision Date

CaseChat Overview and Summary

In the case of Lee v Kwak, the plaintiff sought damages against the defendant for losses resulting from the defendant’s actions in misrepresenting the identity of a party to a commercial contract and inducing the plaintiff to breach that contract. The dispute was heard by the Supreme Court of New South Wales. The plaintiff, Lee, claimed that the defendant, Kwak, had acted as an agent for an undisclosed principal, induced the plaintiff to enter into a contract under false pretenses, and then breached that contract, causing the plaintiff financial loss. The defendant denied the allegations and counterclaimed for damages for defamation and malicious falsehood.

The court had to determine several key legal issues. Firstly, whether Kwak had acted as an agent for an undisclosed principal and whether this was disclosed to the plaintiff. Secondly, whether there was any agreement to vary the terms of the original contract. Thirdly, whether an estoppel was established against the defendant. The court also had to assess whether the defendant had intentionally interfered with the plaintiff's contractual relations and made injurious falsehoods. Additionally, the court needed to consider whether the company, which Kwak purported to represent, had ratified the actions of Kwak. Finally, the court had to determine the appropriate measure of damages for the plaintiff’s losses.

The court found that Kwak had indeed acted as an agent for an undisclosed principal, but this was not disclosed to the plaintiff. The court held that there was no agreement to vary the terms of the contract. The court also determined that an estoppel was established against the defendant, barring him from denying his agency. The court found that the defendant had intentionally interfered with the plaintiff's contractual relations and made injurious falsehoods. The court held that the company had not ratified Kwak's actions. The court assessed the plaintiff’s loss of a chance in relation to the commercial contract and determined the value of this loss. The court awarded damages to the plaintiff and dismissed the defendant's counterclaim. The court ordered that the defendant pay the plaintiff's costs and that the exhibits be returned after 28 days.

Orders

Orders of the court

(1) Judgment for the plaintiff on the Statement of Claim;

(2) The parties are to bring in short minutes of order within 7 days reflecting these reasons in relation to the amount of the claim of the plaintiff and interest;

(3) The defendant is to pay the plaintiff’s costs of the Statement of Claim as agreed or assessed;

(4) The Second Cross-Claim is dismissed. Judgment for the cross-defendant on the Second Cross-Claim;

(5) The cross-claimant is to pay the costs of Mr Lee of the second cross-claim as agreed or assessed;

(6) Liberty to the parties to apply on two business days’ notice for different orders to those in (3) and (5) above;

(7) Exhibits to be returned after 28 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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