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…

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.

Keep reading for free

Create a free CaseChat account to read Hong v Kim and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NZHC 2997
Decision Date: 26 October 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Ms. Junhee Hong filed an application for interlocutory injunctions against Ms. Soon-Sook Kim and A B Lawyers Trustee Services Limited, seeking to restore electricity supply to her residence at 173 Main Road North, Otaihanga, Paraparaumu, and to prevent the respondents from cutting off, disconnecting, or otherwise restricting the supply of all utilities to the guesthouse for as long as she resides there. The proceedings arose from an ongoing dispute between the parties regarding a contract under which Ms. Hong purchased a 40 per cent interest in the Property in April 2019. The respondents purported to cancel the Contract in April 2022, leading to the current legal proceedings filed by Ms. Hong in June 2022.

The legal issues before the Court included whether there was a serious question to be tried, whether the balance of convenience favoured preserving the status quo, and whether it was in the interests of justice to grant interim injunctive relief. Counsel for Ms. Hong, Ms. Wroe, submitted that the balance of convenience favoured preserving the status quo, and that it was in the interests of justice to grant interim injunctive relief. The respondents, represented by Ms. Bibbey, expressed concerns about the evidence filed and sought to progress resolution of the underlying substantive proceeding. The Court indicated a preliminary view that it would be appropriate to turn the electricity in the guesthouse back on but was not inclined to make the order sought in relation to the supply of all utilities.

The Court considered the evidence and submissions from both parties, and ultimately made orders by consent. The respondents were to immediately turn on electricity to the guesthouse and were restrained from cutting off, disconnecting, or otherwise restricting the supply of electricity, gas, water, and telecommunications to the guesthouse. The order was to expire when either Ms. Hong permanently vacated the guesthouse or at midnight on 31 December 2023, whichever occurred first. Costs on the application were reserved, and the proceeding was to be placed in the Judge’s Chambers List for 13 November 2023 at 10:00 am.

Orders