Gwak v Sun - [2022] NZHC 2296

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-000453

[2022] NZHC 2296

BETWEEN JUNG SOOK GWAK and JOSEPHINE YEON JU KIM
Appellants

AND

YAN SUN

First Respondent

ALASTAIR COUPER
Second Respondent

AUCKLAND COUNCIL (REMOVED)
Third Respondent

LAI FOOK CHOY

Fourth Respondent

Hearing: 11 August 2022; further materials filed 19 August 2022

Appearances:

R M Saunders and G R Y Young for Appellants M Thornton for First Respondent

No appearances for or by Second, Third and Fourth Respondents

Judgment:

9 September 2022

JUDGMENT OF WYLIE J

[Appeal against Procedural Order of Weathertight Homes Tribunal]

This judgment was delivered by Justice Wylie On 9 September 2022 at 11.00 am
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
M Thornton, Auckland Wynn Williams, Auckland

GWAK v SUN [2022] NZHC 2296 [9 September 2022]

Introduction

[1] The appellants, Jung Sook Gwak (Mrs Gwak) and Josephine Yeon Ju Kim (Ms Kim), are claimants in adjudication proceedings before the Weathertight Homes Tribunal. The proceedings relate to a leaky home the appellants purchased in Philadelphia Avenue, Albany in 2003. They were commenced in September 2020.

[2] The respondent, Yan Sun (Mr Sun) is one of the defendants to the proceedings. Mrs Gwak and Ms Kim allege that Mr Sun built the home.

[3] Mr Sun applied to be removed from the proceedings on the basis that he could not be liable because he was not the builder. The Tribunal declined this application.1 Mr Sun then engaged counsel and, through counsel, he sought and was granted leave to make a second application for removal.2 On the second application it was argued that Mr Sun should be removed from the proceedings on the basis of inordinate and inexcusable delay by Mrs Gwak and Ms Kim in prosecuting the proceedings. The Tribunal agreed that there had been inordinate delay; it found that the delay was inexcusable and that Mr Sun has been prejudiced by it. Pursuant to s 112 of the Weathertight Homes Resolution Services Act 2006 (the Act), the Tribunal ordered that Mr Sun be struck out as a party to the proceedings.3

[4] Mrs Gwak and Ms Kim now appeal the Tribunal’s decision. Mr Sun supports the decision.

Factual background

[5] Mr Sun was a director of a building company – Sun International Trade Ltd. In 2002, he applied for a project information memorandum and a water supply connection in respect of the property in Philadelphia Avenue. Site and drainage plans were prepared.

1      Gwak v Sun WHT TRI2020-100-6, 7 May 2021 [Procedural Order 2].
2      Gwak v Sun WHT TRI2020-100-6, 1 September 2021 [Procedural Order 4].
3      Gwak v Sun WHT TRI2020-100-6, 25 February 2022 [Procedural Order 5].

[6] The property was purchased by Zhong Lian Cao (Mr Sun’s mother). Ms Cao applied for a building consent from the North Shore City Council. Consent was granted in August 2002 and she engaged Mr Sun…

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.

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Details

Case: [2022] NZHC 2296
Decision Date: 9 September 2022

CaseChat Overview and Summary

In Gwak v Sun, the court was asked to determine whether the Weathertight Homes Tribunal correctly exercised its discretion to remove a respondent from adjudication proceedings on the basis of inordinate and inexcusable delay. The appellants, Mrs Gwak and Ms Kim, alleged that Mr Sun, who was one of the defendants, built the leaky home that they purchased. Mr Sun applied for removal on the basis that he could not be liable because he was not the builder. The Tribunal declined this application but later granted a second application for removal, finding that there had been inordinate delay and that the delay was inexcusable and prejudiced Mr Sun. Mrs Gwak and Ms Kim appealed the Tribunal's decision. The court found that there was indeed delay, which was both inordinate and inexcusable, and that Mr Sun was prejudiced by the delay. The court held that the Tribunal did not err in its decision to remove Mr Sun from the proceedings. The appeal was dismissed.

Orders