Jin v Konishi - [2014] NZHC 1150

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2014-404-000049 [2014] NZHC 1150

BETWEEN
RUJING JIN

First Appellant

YOON LEE Second Appellant

AND

YASUKI KONISHI and MAKIKO KONISHI

Respondents

Hearing: 30 April 2014

Appearances:

No appearance for the First Appellant
Second Appellant in person
D B Hickson for the Respondents

Judgment:

28 May 2014

JUDGMENT OF GILBERT J

This judgment is delivered by me on 28 May 2014 at 2pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

JIN v KONISHI [2014] NZHC 1150 [28 May 2014]

Introduction

[1] This is an appeal against an order made in the District Court declining to set aside an earlier order debarring the first appellant from defending the respondents’ claims and requiring her solicitor, the second appellant, to pay costs personally in relation to the application.

[2] The first appellant did not appear at the hearing and her appeal must accordingly be dismissed for want of prosecution.

[3] The second appellant argues that the District Court lacked jurisdiction to make an order for costs against him personally, as counsel. He further argues that even if the District Court did have jurisdiction to make such an order, his conduct did not involve a breach of duty to the Court and the order should not have been made.

[4] The respondents argue that the District Court does have jurisdiction to make costs orders against solicitors and that this was appropriate in this case. In any event, they contend that the appeals are deemed to have been abandoned because of non- compliance with ‘unless’ orders.

Background

[5] It is necessary to traverse briefly the background to set the context for the issues requiring determination on this appeal.

[6] The respondents, Mr and Mrs Konishi, entered into an agreement in July 2010, to purchase a new house in Auckland from the first appellant, Ms Jin. The agreement was in the form approved by the Auckland District Law Society (Eighth Edition). Mr and Mrs Konishi paid a deposit of $30,000 which is held by the real estate agent as stakeholder. The balance of the purchase price was to be paid on settlement, following issue of a new title.

[7] The agreement contained a term requiring Ms Jin to remedy any defects or other faults notified by Mr and Mrs Konishi during the maintenance period, being
90 days from settlement.

[8] The agreement did not settle. In January 2011, Mr and Mrs Konishi purported to avoid the agreement on the basis that Ms Jin had not complied with her obligations under the maintenance clause. They relied on cl 8.7(5) of the standard terms and conditions of the agreement which enables either party to cancel an agreement which is subject to a condition that is not fulfilled or waived prior to due date. This clause has no application in the present case because the maintenance covenant is not a condition covered by cl 8.

[9] Mr and Mrs Konishi filed a notice 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 Jin v Konishi

Details

AGLC: Jin v Konishi [2014] NZHC 1150
Case: [2014] NZHC 1150
Decision Date: 28 May 2014

CaseChat Overview and Summary

In the case of Jin v Konishi, the High Court of New Zealand was called upon to address an appeal against an order made by the District Court that barred the first appellant, Ms Jin, from defending the respondents' claims and required her solicitor, the second appellant, Mr Lee, to pay costs personally. The first appellant did not appear at the hearing, resulting in the dismissal of her appeal. The second appellant argued that the District Court lacked jurisdiction to order him to pay costs personally and that even if it did, his conduct did not warrant such an order. The respondents contended that the District Court had jurisdiction to make costs orders against solicitors and that the order was appropriate. The Court found that the District Court did not have the jurisdiction to make a costs award against a solicitor personally, as this power is based on the High Court’s inherent jurisdiction to supervise the conduct of its officers, which the District Court does not possess. Consequently, the order requiring Mr Lee to pay costs personally was quashed. The appeal by the first appellant was dismissed for want of prosecution, while the appeal by the second appellant was allowed, and the costs order against him was set aside.

Orders