Hong v Kim
[2023] NZHC 927
•26 April 2023
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
PlaintiffAND
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 inadmissible, and, in any event, unhelpful. I have not had regard to it.
1 These are at paragraphs [11], [12] and [14] of Ms Hong’s affidavit.
Background
[5] The defendants who, as already said, are the trustees of the Kim Soon-Sook Family Trust, are the registered owners of a property at 173 Main Road, Otaihanga, Paraparaumu, Kapiti Coast. It is a 3.7 hectare lifestyle property which has two dwellings on it — a six bedroom house and a two bedroom cottage.
[6] In 2017 Ms Kim was working for the New Zealand Korean Association in Wellington. During the first half of that year Ms Hong also volunteered at the Association. They became friendly. Ms Hong’s parents, who I infer were living in Korea at that time, apparently visited her in New Zealand on occasions. Ms Kim met them during these visits and became friendly with them as well.
[7] In late 2017, at a time when her parents were in the country, they told Ms Hong that they had discussed with Ms Kim the possibility of the three of them moving into the cottage on the Kapiti Coast property. In her evidence, Ms Hong describes this as having “… developed into suggestions that I purchase a share in Kim’s property. I was not involved in the initial conversations about moving in or making a contract to buy a part of Kim’s property. The conversation was made between mother and Kim.”
[8] Ms Hong was keen to acquire an interest in the property. Referring, presumably, to her parents and herself, her evidence is that “[w]e decided that it would be good if we could pay for a share of Kim’s property rather than continuing looking for a Property that I could afford outright.”
[9] That is all that Ms Hong says about the arrangements before describing how, during the second half of 2018, she and her parents moved into the cottage.
[10] Discussions continued about the sale and purchase of an interest in the property. Ms Hong’s evidence is that during this time her father purchased tools and assumed responsibility for carrying out maintenance around the property. Ms Kim’s evidence is that she tended to prepare meals for Ms Hong and her parents when she prepared her own. Both parties say that there was never any discussion about rent being paid by Ms Hong or her parents for the use of the cottage.
[11] In February 2019 Ms Kim obtained a market appraisal of the value of the property from a real estate agent. The market appraisal suggested that the market value of the property at the time was $1,260,000.
[12] Ms Hong says that in April 2019 she and Ms Kim agreed on terms for sale and purchase, and it is common ground that a written agreement was prepared and executed by both of them. It seems that Ms Hong drafted the document. Apparently, at the time, she was a law student.
[13] The document was prepared in Korean. A translation is in evidence which both parties accept is accurate. The agreement was in these terms:
Real Estate Sales Agreement
The seller (KIM Soon Sook) and the buyer (HONG Junhee) hereby enter into this mutual agreement with respect to the real estate indicated below.
1.Real estate details
(a) Location (173 Main Road North, Otaihanga, Paraparaumu 5036)
(b) Land Classification (Rural 1A)
Area (3.7332 ha)
(c) Building Structure (610m2 Brick)
Use (Multi Unit – Lifestyle)
(d) Sale value: NZD 1,300,000, with 40% equity (NZD 520,000)
2.Details of Agreement
(a) The value of the property in its entirety is NZD 1,300,000 and 40% of the property is held by the seller. (KIM Soon Sook) is selling [the property] to the buyer (HONG Junhee) for NZD 520,000, with a mortgage totalling NZD 420,000.
(b) Of the total mortgage amount of NZD 550,000, the seller (KIM Soon Sook) is responsible for NZD 130,000 and the buyer (HONG Junhee) is responsible for NZD 420,000 and each shall pay both the interest and the principal [of their share].
(c) The seller (KIM Soon Sook) shall provide the papers authorising her share of the
Family Trust through an attorney in a timely manner.
(d) The buyer (HONG Soon Sook) shall take on the NZD 420,000 mortgage included in the sale amount of NZD 520,000, and pay the seller (KIM Soon Sook) NZD 100,000 in cash.
For the purposes of executing this Agreement, the parties to the agreement separately confirm that there are no objections.
SellerAddress (173 Main Road North, Otaihanga, Paraparaumu 5036) Passport Number ( )
Name (KIM Soon Sook) (signature) [signed]
BuyerAddress (173 Main Road North, Otaihanga, Paraparaumu 5036) Passport Number ( )
Name (HONG Junhee) (signature) [signed]
*Special provisions
1.The details of the above property are based entirely on the seller’s (KIM Soon Sook’s) description, and in the event that there are errors in the document, the parties shall seek resolution through mutual discussion.
2.If [this agreement] must be cancelled due to unavoidable special circumstances, then this will be decided by mutual agreement.
3.Each party shall pay 50% of all management fees (and 40% of the property tax and insurance premiums)
·All management fees refer to the cost of electricity, water and real estate (land and building) maintenance.
4.With regard to the above Agreement, the most important thing is that the seller (KIM Soon Sook) and the buyer (HONG Junhee) maintain mutual consideration and respect for each other, and that any issues are rationally discussed and resolved, while maintaining the original intent behind [the Agreement].
01/10/2018
[14] Although the agreement was signed by Ms Kim and Ms Hong in April 2019, it appears they dated it 10 October 2018 to reflect the date on which Ms Hong moved into the cottage. No particular point arises from that.
[15] The document clearly provides that Ms Kim is agreeing to sell and Ms Hong is agreeing to purchase a 40 per cent interest in the property. The sale and purchase price was based on an agreed value of $1,300,000. Thus the consideration was
$520,000. It provides that the sale and purchase price will be paid by way of a cash payment of $100,000 and Ms Hong assuming responsibility for $420,00 of the loan secured by mortgage over the property. Ms Kim agreed to “… provide the papers authorising her share of the Family Trust through an attorney in a timely manner”.
[16]Ms Hong has never paid the $100,000.
[17] However, it is common ground that she has made regular payments of principal and interest pursuant to the mortgage to cover the share of the loan for which she was to take responsibility, and a 40 per cent share of the outgoings.
[18] It would seem that matters proceeded satisfactorily until mid-2021. During that time, the country was of course negotiating the Covid-19 pandemic. As a result, the defendant’s bank suspended mortgage payments for a period, but that is not directly relevant. Also, over that time, Ms Kim and Ms Hong continued to discuss formalising the latter’s interest in the property.
[19] In mid-2021 Ms Kim told Ms Hong that she had been discussing matters with her lawyer, Mr Lim, and asked Ms Hong to call Mr Lim to discuss the transaction.
[20] Together with her mother, Ms Hong telephoned Mr Lim on 10 August 2021. Ms Hong says that she asked Mr Lim to arrange to have her named as a beneficiary of the Kim Soon-Sook family trust, which, at that point, she envisaged as being how her interest in the property was to be formalised. She says that Mr Lim — correctly — told her that that would not secure her position, and that the way of formalising arrangements was for the parties (the trustees on the one hand and Ms Hong on the other) to become tenants in common in unequal shares of 60 and 40 per cent respectively. Mr Lim seems to have envisaged this happening by the parties approaching the bank to arrange new lending facilities. It does not seem that there was very much discussion about Ms Hong’s position in the interim, or what might happen if the bank did not agree to this.
[21] Ms Hong and her mother met with Ms Kim some months later on 8 March 2022. There was some dispute at this stage about what payments had been made by Ms Hong. It seems that the relationship was beginning to deteriorate because Ms Hong says that Ms Kim informed her that from that point on she would prefer to deal with any issues relating to the transaction through lawyers.
[22] The next significant event seems to have been a letter to Ms Hong from Mr Lim dated 14 March 2022, which I quote in full:
We act for Mrs Kim on the above mentioned matter.
We write this to advise you that you are in breach of the terms of the Agreement, dated 01 October 2018 and this may result in cancellation of the same should you fail to remedy the breaches.
The details of the breach include 2.b, 2.d and outstanding unpaid mortgage payment in the name of Kim.
We strongly urge you to obtain a legal advice on this on an urgent basis otherwise we will advise to cancel the agreement in two weeks time from the date of this letter, time being of essence.
The possible cancellation may also result in an order requiring to vacate the premise immediately thereafter.
We disclose that you contacted the author some time earlier (some two years ago?) and made enquiry on the same matter. We understand the phone discussion did not result in any formal engagement from both side. You are invited to discuss this matter with your solicitor on this issue and let us know.
[23] As Ms Wroe submitted, the inescapable inference is that Mr Lim was proceeding on the assumption that the 1 October 2018 agreement for sale and purchase remained on foot, albeit that Ms Hong was being accused of being in breach and the letter concluded with a threat to cancel.
[24] Having received that letter, Ms Hong engaged solicitors who replied by letter dated 28 March 2022. All that needs to be said about this letter is that it is evident that Ms Hong too was proceeding on the assumption that the agreement continued to apply. Her solicitor denied that she was in breach, stated that he did not accept that the trustees were in a position to cancel, and sought particulars of the alleged breach.
[25] Mr Lim responded by letter dated 4 April 2022. To the extent that this letter was a response to the request from Ms Hong’s solicitors for particulars, Mr Lim identified the breach as being Ms Hong’s failure to pay the cash payment of $100,000. In this letter, Mr Lim purported on behalf of the trustees to cancel for breach. He then went on to propose that the parties enter into a tenancy arrangement for the cottage. This was the first occasion on which there was any suggestion of a lease of the cottage.
[26] It was following receipt of that letter from the trustees’ solicitors that Ms Hong, through her solicitors, lodged a caveat over the property on 8 April 2022.
[27] At this point, Ms Hong also ceased making payments directly to Ms Kim to cover mortgage payments and outgoings and instead began paying these into her solicitor’s trust account.
[28] On 8 April 2022 Ms Hong’s solicitors responded by pointing out the somewhat unusual approach being taken by the trustees — denying the existence of the agreement and at the same time purporting to cancel it.
[29] From that point, the correspondence becomes somewhat self-serving and correspondingly unhelpful.
[30] Ms Hong and her parents continue to live in the cottage, and she continues to make payments to her solicitors, presumably to hold those monies until this dispute is resolved in one way or another.
Summary judgment application
[31]The High Court Rules 2016 provide for summary judgment in r 12.2:
12.2 Judgment when there is no defence or when no cause of action can succeed
(1)The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.
(2)The court may give judgment against a plaintiff if the defendant satisfies the court that none of the causes of action in the plaintiff’s statement of claim can succeed.
[32] The principles that govern summary judgment are now well settled. The leading case is Krukziener v Hanover Finance Ltd where the Court of Appeal summarises essential issues that arise in any application by the plaintiff for summary judgment in these terms:2
[26] The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1 (CA) at 3. The court must be left without any real doubt or uncertainty. The
2 Krukziener v Hanover Finance Ltd [2008] NZCA 187 at [26]–[27].
onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331 (PC) at
341. In the end the court’s assessment of the evidence is a matter of judgment. The court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corporation Ltd v Patel (1987) 1 PRNZ 84 (CA).
[27] Under r 141A of the High Court Rules the defendant need not file a statement of defence. The onus remains on the plaintiff, and summary judgment will be denied if on the hearing of the application it appears that there is an issue worthy of trial.
[33] Thus the question is whether the plaintiff can demonstrate that the defendant has no defence. In assessing that issue, the Court will not generally determine significant factual issues on untested affidavit evidence.3 That said, the cases are clear that the Court is entitled to take a robust view in dealing with unsubstantiated assertions or blatantly incredible evidence.4
[34] The Court can deal with legal issues — even very complex legal issues — on a summary judgment application.5
The competing arguments
[35] In her submissions on Ms Hong’s behalf, Ms Wroe described the two limbs of the claim and identified what she submitted were the key issues in these terms:
7.On the breach of contract cause of action, she [Ms Hong] must demonstrate that:
(a)The parties intended to create legal relations;
(b)The parties agreed terms that are complete and certain, including consideration, so that the court can ascertain what the parties objectively meant;
(c)Ms Kim entered into the contract on behalf of the trustees and the contract was ratified by the co-trustee;
3 See Attorney-General v Rakiura Holdings Ltd (1986) 1 PRNZ 12 (HC); and Pemberton v Chappell
[1987] 1 NZLR 1 (CA).
4 See S H Lock (NZ) Ltd v Oremland HC Auckland CP641-86, 19 August 1986.
5 Pemberton v Chappell, above n 3, at 2.
(d)The defendants’ purported cancellation was a repudiation of the contract.
8.The alternative claim for a declaration of an institutional constructive trust depends on the court being satisfied that there is no defence to the claim that:
(a)Ms Kim promised that the plaintiff would have a 40% share in the Property in exchange for paying off a mortgage and paying $100,000.
(b)The plaintiff has made substantial contributions to the Property on the basis of that promise by paying down the mortgage and maintaining the Guesthouse and the grounds of the Property.
(c)The plaintiff has a reasonable expectation of an interest in the Property.
[36] It appears to me that the two pleaded causes of action merge for present purposes in the sense that if the plaintiff is unable to demonstrate that there is no arguable defence to her contractual claim, then it is difficult to envisage her being able to demonstrate that there is no arguable defence to her constructive trust claim — both claims are ultimately founded on the proposition that the trustees assented to (or allowed Ms Hong to believe that they were assenting to) an arrangement involving the sale of a 40 per cent interest in their property.
[37] That being so, it seems appropriate to focus primary attention on the contractual cause of action, as Ms Wroe did in her submissions.
[38] In order to succeed in her contractual claim based on the written agreement, Ms Hong will need to establish that:
(a)objectively assessed the parties intended to create legal relations;
(b)the contract is complete and certain; and
(c)the agreement was not a nullity by reason of only one of two trustees who are the registered owners of the property having executed it.
[39] The first issue then is whether from an objective perspective the parties intended to create legal relations.
[40] The cases tend to distinguish between commercial and other relationships. For example, arrangements reached in a domestic context involving parents and children are generally not regarded as involving either party intending to create legally enforceable contracts. In contrast, the law will generally infer that where two parties engage in arms’ length negotiations in a commercial context resulting in an arrangement, their objective intention was that that arrangement be enforceable.6 However, even in a commercial context, such an inference is rebuttable where, for example, the parties describe their arrangements in a way that suggests they do not have such an intention.7
[41] The question of whether the parties had the necessary intention is an objective one, and ex post facto evidence as to the subjective intention of either is inadmissible.
[42] The argument advanced on the part of the respondents in this case starts from the proposition that both parties are Korean or of Korean descent. There is evidence before the Court from Mr Lim, who is also Korean or of Korean descent, and who claims a degree of expertise as to Korean culture on the basis that in his practice he acts for a number of Korean clients. Mr Lim says that as a matter of Korean culture parties enter into preliminary arrangements as a precursor to a final contractual arrangement and that in doing so they do not intend to be bound. He says, in effect, that parties expect to be able to withdraw from such arrangements. Mr Lim says that the nature of the arrangements in this case suggests that the parties were treating it as a preliminary arrangement by which they would not have expected to be bound.
[43]I do not accept that evidence.
[44] I am not persuaded that Mr Lim is entitled to give such evidence. His affidavit evidence, which is a mix of fact and opinion, does not provide sufficient details as to his own background, knowledge and expertise of these matters to qualify him to give opinion evidence. Technically, in my view, his opinion evidence is inadmissible. Even ignoring that, it needs to be remembered that this arrangement was entered into in New Zealand by Ms Hong and Ms Kim who, as far as I am aware, are New Zealand
6 Fleming v Beevers [1994] 1 NZLR 385 (CA) at 389.
7 Bank of New Zealand v Ginivan [1991] 1 NZLR 178 (CA).
citizens or New Zealand residents. They reduced their arrangement to writing. The written arrangement contained no qualification in relation to their intention to create legal relations. Quite the reverse, the document appears on its face to involve both parties making significant and important legal commitments to the other.
[45] I am satisfied that, objectively assessed, Ms Hong and Ms Kim intended to create legal relations when they signed this document.
[46]The next issue is whether the contract is complete and certain.
[47] The starting point is that, once the Court is satisfied that the essential elements of a contract exist and that the parties intended to create legal relations, then every endeavour will be made to give contractual effect to the parties’ intentions, irrespective of omissions or ambiguities that may exist.8
[48]The essential terms, however, must be present and certain.
[49] Precisely what those essential terms are will depend on the nature of the contract. In this case, we are dealing with what is said to be a contract for the sale and purchase of an interest in land. It is not difficult to identify the essential aspects of such a contract. It must cover:
(a)the parties;
(b)the property;
(c)the interest; and
(d)the consideration.
[50] The registered owners of the property in this case are the trustees, that is to say, Ms Kim and A B Lawyers Trustees Services Ltd. On its face, the contract is between Ms Kim as vendor and Ms Hong as purchaser. To the extent that that is a mismatch,
8 Electricity Corporation of New Zealandv Fletcher Challenge Energy Ltd [2002] 2 NZLR 433 (CA) at 445.
it appears to me to be a readily explicable one. Although the history of the property is not in evidence, it can be inferred that Ms Kim was instrumental in arranging for the property to be owned by the trustees and that in executing this agreement she was purporting to do so on behalf of the trustees.
[51] In my view, all other essential requirements of a sale and purchase agreement are present. The property that is the subject matter of the contract is identified. The parties were agreeing to sell and purchase a 40 per cent interest in the property. They agreed on consideration of $520,000, to be paid $100,000 in cash and an assumption of responsibility for $420,000 of the loan that is secured by the mortgage. Whilst it is not clear precisely when the $100,000 was to be paid, or when the necessary conveyancing was to occur to perfect the transfer of the interest, those matters are precisely the kind that the Court will deal with by applying general principles in order to give effect to the parties’ intentions. Ms Hong’s evidence is that the understanding was that the $100,000 payment would be made on “transfer” of the interest concerned. That accords with invariable conveyancing practice. I am prepared to infer that that was the arrangement here. Insofar as the conveyancing is concerned, although the parties appear to have contemplated that the transfer of the interests between trustees and Ms Hong might take the form of being appointed as a beneficiary of the trust, as Mr Lim made clear, that makes no sense. Plainly, the parties intended that the transfer of the 40 per cent interest in the property would be properly perfected so as to protect history, and the only way that that can happen is for the parties to become tenants in common in unequal shares, with the trustees retaining a 60 per cent share in the property and Ms Hong acquiring a 40 per cent interest.
[52] The next issue concerns whether as a matter of law the agreement was a nullity because it was executed by only one of the two trustees who were the registered owners.
[53] In relation to this issue, Ms Bibbey’s submissions on behalf of the trustees can be summarised in the following propositions:
(a)First, it is elementary that in the absence of a provision in the instrument creating the trust, where there are two or more trustees, they must act unanimously.
(b)Second, a step taken on behalf of the trustees by one or more, but not all, trustees, is not binding on the trustees as a whole (though it may expose the trustee acting in the matter to a claim based on want of authority).
(c)Third, such a step may be ratified by the remaining trustees so as to perfect the contract, but only if:
(i)the trustee or trustees acting in the matter purported to act on behalf of all trustees;
(ii)had actual authority to do so; and
(iii)the trustee making the contract disclosed, at the time of making it, the identity of the principal she was acting on behalf of and intending to bind.
(d)Fourth, in this case, even if Ms Kim can be said to have purported to act on behalf of the trustees of the trust (if not expressly, then as a matter of necessary implication) and even if it can be said that she disclosed her principal in the sense that the principal was readily ascertainable by reference to the certificate of title to the property, the uncontradicted evidence is that the second trustee, through its director, Mr Lim, was quite oblivious to the arrangement for a period of approximately two years so that Ms Kim could not have had actual authority to bind the company.
(e)Fifth, it follows that the alleged contract was void ab initio and incapable of coming into effect by means of ratification at a later stage.
[54] Ms Bibbey relied on the relatively recent judgment of District Court Judge M-E Sharp in Henderson v Senaratne9 and the cases that the judge referred to in her judgment. I agree that that case reflects the principles as articulated by Ms Bibby and summarised above.
[55]In my view, for present purposes, the law is accurately summarised in
Lewin on Trusts:10
Unanimity — general rule
28-72Accordingly, trustees are generally required to act unanimously in the exercise of their powers; a majority is not entitled to bind the trust against the opposition of a minority. …
28-73The act of one trustee done with the sanction and approval of a co-trustee will be regarded as the act of both, so that a contract entered into by one trustee as such will bind a co-trustee who sanctions his doing so. We deal elsewhere with the question how far trustees exercising a power need to do so simultaneously. It is not necessary that the actual implementation of any exercise of a power should be effected by all of the trustees, unless that is required (as e.g. in the case of a transfer of land) by the nature of the act to be done.
28-74If it is contended that the trustees have become bound by an estoppel by representation, made to a beneficiary by only one of them, there is no estoppel unless it is shown that his co-trustees had actually authorised him to make the representation on their behalf, or that they stood by knowing that he had made the representation but acquiesced in it or that, by their actions, they had put him in a position in which he appeared to be authorised to make the representation on their behalf. It is not enough for the representee to assert that it was reasonable for him to rely upon the representation in the belief that it made by or on behalf of all of the trustees.
[56] It is beyond question that the second trustee was unaware of the agreement executed in April 2019 until March 2022. That, in my view, provides a foundation for a reasonably arguable defence that the agreement was never binding on the defendants.
[57] The trustees say that even if in such circumstances an ex post facto ratification by the non-acting trustee or trustees could perfect the contract, A-B Lawyers Trustee Services did not ratify the contract in this case.
9 Henderson v Senaratne DC Auckland CIV-2006-004-279,16 June 2008.
10 Lynton Tucker and others Lewin on Trusts (20th ed, Sweet & Maxwell, London, 2020) at [28-072]- [28-074] (footnotes omitted).
[58] That too appears to me to be a reasonably arguable contention. Whilst it is true that Mr Lim’s letter of 14 March 2022 appears to have proceeded on the basis that there was an agreement, he was working primarily as the trustees’ solicitor rather than as the director of his nominee company. In any event, the letter does not ratify the agreement in so many words.
Conclusion
[59] For those reasons, in my judgment, the plaintiff has been unable to establish that there are no genuinely arguable defences available to the trustees, and this matter must proceed to trial.
[60]The plaintiff’s application for summary judgment is dismissed.
[61] As to costs, the invariable principle is that in unsuccessful applications for summary judgment costs are left to lie where they fall. My preliminary view is that that is the appropriate approach here. However, I reserve costs as I have not heard from counsel. If they are unable to agree as to costs they may file memoranda in the usual way.
[62] The Registrar is directed to list this matter for call in the next Associate Judge’s chambers list. Before that call, counsel are to file a joint memorandum or separate memoranda proposing directions for the disposal of this proceeding, which, in my view, should be allocated a degree of urgency.
Associate Judge Johnston
Solicitors:
Law.NZ Lawyers, Auckland for plaintiff Alpers & Co, Christchurch for defendants
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