Hong v Kim - [2023] NZHC 2045

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2022-485-331

[2023] NZHC 2045

BETWEEN
JUNHEE HONG

Plaintiff

AND

SOON-SOOK KIM and

A B LAWYERS TRUSTEE SERVICES LIMITED

Defendants

CIV-2022-485-538

BETWEEN

JUNHEE HONG
Plaintiff

AND

SOON-SOOK KIM and

A B LAWYERS TRUSTEE SERVICES

LIMITED as trustees of the Kim Soon-Sook Family Trust

Defendants

Hearing: On the papers

Appearances:

S Wroe and T Ashley for Plaintiff C Bibbey for Defendants

Judgment:

2 August 2023

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[Leave to appeal]

[1] This case involves a dispute between the plaintiff, Junhee Hong, and the defendants, Soon-Sook Kim and A B Lawyers Trustee Services Ltd as the trustees of the Kim Soon-Sook Family Trust, concerning a document executed in April 2019 by Ms Kim, apparently as vendor, and Ms Hong, apparently as purchaser, in which it is

HONG v KIM [2023] NZHC 2045 [2 August 2023]

contended, by Ms Hong, that the trustees agreed to sell and Ms Hong agreed to purchase an interest in a property owned by the former on the Kāpiti Coast.

[2] Ms Hong says that the document constituted an enforceable contract for sale and purchase. The trustees do not accept that. Ms Hong applied for summary judgment seeking an order for specific performance. In my judgment dated 26 April 2023 I dismissed her application.1 The net result is that the matter will have to go to trial.

[3] Now Ms Hong seeks leave to appeal. She needs leave by reason of s 56(3) of the Senior Courts Act 2016. This provides that interlocutory judgments may only be appealed with leave from this Court or the Court of Appeal.

[4] In my judgment, I concluded that, all things being equal, the terms of the agreement were sufficiently clear to constitute an enforceable agreement, and that the signatories to the same — Ms Kim and Ms Hong — had intended to create legal relations. However, I did not accept that Ms Hong had established that the trustees had no arguable defence or defences to the claim.

[5] The defence that I concluded was available, at least to the point of being arguable, was that the contract was unenforceable against the owners, the two trustees, because it had not been executed by or on behalf of both and that A B Lawyers Trustee Services Ltd was not a party to the same.

[6] Ms Wroe on behalf of the plaintiff submits that I was wrong to reach that conclusion, and that is the primary basis for the proposed appeal.

[7] As Ms Wroe submits, the principles applying to applications pursuant to s 56(3) are well settled. She cites the Court of Appeal’s judgment in Greendrake v District Court of New Zealand, where, citing Finewood Upholstery Ltd v Vaughan,2 the Court articulated those principles as follows:3

1      Hong v Kim [2023] NZHC 927.
2      Finewood Upholstery Ltd v Vaughan [2017] NZHC 679.
3      Greendrake v District Court of…

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 Hong v Kim

Details

AGLC: Hong v Kim [2023] NZHC 2045
Case: [2023] NZHC 2045
Decision Date: 2 August 2023

CaseChat Overview and Summary

In the case of Hong v Kim, the plaintiff, Junhee Hong, contends that an agreement executed in April 2019 between herself and Soon-Sook Kim, as well as A B Lawyers Trustee Services Limited as trustees of the Kim Soon-Sook Family Trust, constituted an enforceable contract for the sale and purchase of an interest in a property on the Kāpiti Coast. The defendants dispute the enforceability of this agreement. Hong applied for summary judgment seeking specific performance of the contract, which was dismissed by the court in a prior judgment dated 26 April 2023. Hong now seeks leave to appeal this decision under section 56(3) of the Senior Courts Act 2016.

The legal issues at hand revolve around the enforceability of the contract and whether the trustees had an arguable defence against the plaintiff's claim. The court had previously concluded that the agreement was sufficiently clear to be enforceable and that the parties intended to create legal relations. However, the court also determined that the trustees had an arguable defence, specifically that the contract was unenforceable against them as it had not been executed by or on behalf of both parties, and A B Lawyers Trustee Services Ltd was not a party to the contract. The plaintiff argues that the court erred in its analysis of the law relating to contractual commitments by trustees, contending that the directors' subsequent correspondence should be interpreted as a ratification of the contract.

The court, however, found that the mixed questions of fact and law surrounding the enforceability of the contract and the capacity in which the directors were acting could only be resolved after a full trial. The court further found that the application for leave to appeal did not meet the threshold for appeal, as it did not identify an arguable error of law or fact of general or public importance, nor did it sufficiently address the importance of the matter to the plaintiff, the potential for further delay, or the interests of justice. The court ultimately dismissed the plaintiff's application for leave to appeal and reserved costs for later determination.

Orders