Hong v Kim - [2023] NZHC 927

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 927

BETWEEN
JUNHEE HONG

Applicant

AND

SOON-SOOK KIM and

A B LAWYERS TRUSTEE SERVICES LIMITED

Respondents

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: 8 March 2023

Appearances:

S Wroe for Applicant in both proceedings

C Bibbey for Respondents in both proceedings

Judgment:

26 April 2023

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

Introduction

[1]These two proceedings concern a dispute between the applicant in the earlier

(331) claim and plaintiff in the later (538) claim, Junhee Hong, and the respondents in the 331 claim and defendants in the 538 claim, the trustees of the Kim Soon-Sook

HONG v KIM [2023] NZHC 927 [26 April 2023]

Family Trust, as to whether Ms Hong has a proprietary interest in a property of which the trustees are the registered owners.

[2] In the 331 proceeding Ms Hong applied for an order sustaining a caveat she had lodged against the title to the property to protect her claim to an interest in the same. In the 538 proceeding she is seeking an order establishing that interest, and has applied for summary judgment. The parties have sensibly agreed to allow the caveat to remain, at least until Ms Hong’s summary judgment application is disposed of. Accordingly, when the two proceedings came on for hearing, only the summary judgment application was argued.

[3] In support of her application Ms Hong relies on her own affidavit dated 10 June 2022 and an affidavit from her solicitor, Eung Chul Jon, dated 13 June 2022, both originally sworn in support of her application for an order sustaining the caveat, and her further affidavit dated 22 August 2022 sworn in support of this application. The trustees rely on the affidavit of the first-named defendant, Soon-Sook Kim, dated 17 August 2022, sworn in opposition to Ms Hong’s application relating to the caveat, and an affidavit by their solicitor, Yong Sun Lim, dated 1 November 2022, sworn in opposition to this application. In addition, there is uncontroversial affidavit evidence from a translator who has translated the written agreement which is central to the case.

[4] The affidavits relied on by Ms Hong contain two assertions of fact which are disputed by or on behalf of the trustees.1 During the course of argument, Ms Wroe indicated that Ms Hong did not seek to rely on these aspects of the evidence for the purposes of this summary judgment application. I have not had regard to them. Additionally, there are, throughout the affidavit evidence, numerous assertions by almost all of the deponents as to their subjective belief or understanding, or the subjective belief or understanding of others, concerning the meaning and significance of documents — most particularly the written contract. During the course of the hearing, I observed to both Ms Wroe and Ms Bibbey that this evidence was…

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 927
Case: [2023] NZHC 927
Decision Date: 26 April 2023

CaseChat Overview and Summary

The dispute between Junhee Hong and the trustees of the Kim Soon-Sook Family Trust, Soon-Sook Kim and A B Lawyers Trustee Services Limited, was heard in the High Court of New Zealand. Ms Hong sought to establish a proprietary interest in a property owned by the trustees. She had previously lodged a caveat against the title and applied for summary judgment to establish her interest. The trustees opposed the summary judgment application, arguing that the agreement between the parties was not binding.

The legal issues before the court were whether the parties intended to create legal relations, if the contract was complete and certain, and if the agreement was binding despite being executed by only one trustee. The court considered the objective intention of the parties, the essential terms of the contract, and the requirement for unanimity among trustees.

Associate Judge Johnston found that the parties intended to create legal relations and that the contract was complete and certain. However, the court held that the agreement was potentially void because it was executed by only one of the two trustees. The second trustee was unaware of the agreement until much later, and there was no evidence of ratification by the non-acting trustee. Consequently, the court found that there were genuinely arguable defences available to the trustees, and the plaintiff's application for summary judgment was dismissed. The matter will proceed to trial. As to costs, the court reserved its decision pending agreement between the parties' counsel or submission of memoranda if necessary.

Orders