Hong v Kim

[2023] NZHC 2997

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-538

[2023] NZHC 2997

IN THE MATTER

of an application without notice for interlocutory injunctions

UNDER

High Court Rules 7.23 and 7.53

BETWEEN

JUNHEE HONG

Applicant

AND

SOON-SOOK KIM AND A B LAWYERS TRUSTEE SERVICES LIMITED

Respondents

Teleconference:	25 October 2023
Appearances:	S E Wroe and T A Ashley for Applicant C M Bibbey for Respondents
Judgment:	26 October 2023

JUDGMENT OF McQUEEN J

Introduction

[1]                  Ms Hong, the applicant, seeks urgent injunctive relief to restore electricity supply to the guesthouse at 173 Main Road North, Otaihanga, Paraparaumu (the Property), in which she resides. Electricity supply was disconnected at around 11:00pm on Friday 20 October 2023. Ms Hong seeks a further order which seeks to restrain the respondents from cutting off, disconnecting or otherwise restricting the supply of all utilities to the guesthouse for as long as Ms Hong resides there.

[2]                  These issues arise in the context of longstanding proceedings between the parties. Ms Hong has been living in the guesthouse since October 2018. She contends

HONG v KIM AND A B LAWYERS TRUSTEE SERVICES LIMITED [2023] NZHC 2997 [26 October 2023]

that in April 2019 she signed a contract with Ms Kim, one of the respondents, under which Ms Hong purchased a 40 per cent interest in the Property (the Contract). Since late 2021, the parties have been in dispute about the effect of the Contract. The respondents purported to cancel the Contract in April 2022. These legal proceedings were filed by Ms Hong in June 2022, seeking specific performance of the Contract, or in the alternative, a declaration of constructive trust.

The application

[3]                  Ms Hong has filed a without notice interlocutory application for an interim injunction, an affidavit in support, an undertaking as to damages, and a memorandum of counsel.

[4]                  Counsel for Ms Hong, Ms Wroe, submits that there is a serious question to be tried between the parties, that the balance of convenience favours preserving the status quo and that it is in the interests of justice to grant interim injunctive relief.1

[5]                  The without notice application was filed in the Court on 24 October 2023. I issued a minute on receipt  of  the  papers,  convening  a  telephone  conference on 25 October 2023, and ordering that the papers be informally served on counsel for the respondents to permit the conference to proceed on a “Pickwick” basis.

The evidence

[6]                  As mentioned earlier, there is a substantial dispute between the parties in relation to ownership of the Property. Evidence for both parties has been filed in relation to this. For present purposes, however, I focus on the immediately relevant events.

[7]                  In Ms Hong’s affidavit in support of her application, she says that between April 2019 and October 2020, she paid 50 per cent of all electricity bills, as was contemplated by the Contract. Ms Hong says that once Ms Kim started hosting paying

1      Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 140 (HC). See also NZ Tax Refunds Ltd v Brooks Homes Ltd [2013] NZCA 90 at [12]; and Intellihub v Genesis Energy Ltd [2020] NZCA 344 at [23].

guests in the main house, it was agreed that Ms Hong’s contribution to power bills would reduce to 30 per cent to reflect the greater use by Ms Kim and her guests.    Ms Hong says that between October 2020 and September 2023, Ms Hong has been paying 30 per cent of the power bill on time each month into Ms Kim’s bank account.

[8]                  On 9 October 2023, the respondents advised Ms Hong that they were no longer able to pay the power account on her behalf. They indicated that as she had not been contributing to power, they  would  disconnect  the  power  by  16 October  2023.  Ms Hong’s solicitor replied to the respondents, saying that she had been paying her agreed share of power bills. In further correspondence,  the  respondents  advised  Ms Hong that they disputed that she only had to pay 30 per cent of the power bill and demanded payment of 50 per cent of power costs under the Contract (as well as other utility bills). They said that if this was not paid by 20 October 2023, they would disconnect the power.

[9]                  On 20 October 2023, Ms Hong’s solicitor responded, indicating that Ms Hong disputed the amount sought but advising that she would move out of the guesthouse due to the respondent’s behaviour. It was said that Ms Hong would do so before the end of 2023, and sooner, if she finds suitable alternative accommodation for her and the other person who lives with her in the guesthouse.

[10]              At about 11:00pm on 20 October 2023, power to the guesthouse was cut off. Ms Hong says she does not know whether the respondents disconnected the power or just switched it off, noting that there is a switchboard at the main house from which she believes it is possible to turn off power to parts of the Property.

[11]              Ms Hong deposes that she does not know why the respondents are suddenly taking issue with the power bills other than to force her to move out of the guesthouse.

Discussion

[12]              During the telephone conference, counsel for the respondents, Ms Bibbey, expressed some concerns about the evidence filed and frustration at what she sees as inadequate communication from Ms Hong’s lawyers, including in relation to the payment of costs due on an appeal in this proceeding, which had not been paid

(although have very recently now been paid). Ms Bibbey seeks to progress resolution of the underlying substantive proceeding. She notes that an amended statement of claim from Ms Hong is anticipated and says that a timetable to hearing should be set.

[13]              I indicated my preliminary view to counsel that it would be appropriate that the electricity in the guesthouse is turned back on (the order sought in [1(a)] of the application) but that I was not inclined to make the order sought in [1(b)] of the application, which seeks to restrain the respondents from cutting off, disconnecting or otherwise restricting the supply of all utilities to the guesthouse for as long as Ms Hong resides there. I also indicated that I would be inclined to reserve costs given that this application is only a small part of the overall dispute between the parties.

[14]              Ms Bibbey then helpfully indicated that the respondents are willing to consent to not only the order relating to turning the electricity back on in the guesthouse but also the more general order relating to the supply of utilities, so long as that order is limited in time to 31 December 2023. Counsel for Ms Hong, Ms Wroe, was agreeable to that time limit being imposed on that order.

[15]              Counsel also confirmed that they will confer as to the directions required to progress the substantive dispute to hearing. Ms Wroe says an amended statement of claim will be filed by 30 October 2023. Counsel were agreeable to the proceeding being placed in the Judge’s Chambers List to assist with progress to a hearing. Counsel will aim to file a joint memorandum addressing all outstanding matters, in anticipation of the call, and if a joint memorandum is not possible, they are to file separate memoranda.

Orders

[16]I therefore record the following orders made by consent:

(a)the respondents are to immediately turn on electricity to the guesthouse at 173 Main Road North, Otaihanga, Paraparaumu, in which Ms Hong resides;

(b)the respondents are restrained from cutting off, disconnecting or

otherwise restricting the supply of electricity, gas, water, and telecommunications to the guesthouse;

(c)the order contained in (b) above is to expire when either of the two following events occur, whichever occurs first:

(i)when Ms Hong permanently vacates the guesthouse; or

(ii)at midnight on 31 December 2023;

(d)costs on this application are reserved;

(e)the plaintiff is to file and serve an amended statement of claim by     30 October 2023; and

(f)the proceeding is to be placed in the Judge’s Chambers List for Monday 13 November 2023 at 10:00 am.

McQueen J

Solicitors:
John Jon Law, NZ Lawyers, Takapuna for Applicant