Jo v Johnston - [2013] NZHC 552

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2009-409-000741 [2013] NZHC 552

BETWEEN NAMGEUN JO AND SOON HEE KWON Plaintiffs

ANDBERNARD JOHNSTON First Defendant

ANDSOUTHERN HOSPITALITY LIMITED Second Defendant

ANDMAINTENANCE UNLIMITED LIMITED Third Party

Hearing: 19 March 2013
(Heard at Christchurch)

Appearances: M I Withers for Plaintiffs (not appearing - attendance excused)
R Morgan for First Defendant (not appearing - no interest in this application)
JCD Guest for Second Defendant

Judgment: 19 March 2013

ORALJUDGMENT OF ASSOCIATE JUDGE OSBORNE [as to security for costs]

[1] This is the second defendant’s application for an order that the plaintiffs

provide security for costs.

Appearances

[2] I convened yesterday an urgent telephone conference because informal communications received from Mr Jo, the first-named plaintiff, indicated that he wanted this hearing adjourned to accommodate difficulties he is facing. He refers,
for instance, to the fact that he is at present residing in Korea and it seems that may

JO V JOHNSTON HC CHCH CIV-2009-409-000741 [19 March 2013]

have been impelled as a result of immigration issues. He also refers to the difficulties he is having with replacing counsel as his former barrister ceased to act late last year. Mr Withers has only ever had the role purely of an instructing solicitor. On that basis, although Mr Withers attended the telephone conference yesterday, I excused his attendance today.

[3] A trial of this proceeding is scheduled for 1 July 2013. The plaintiffs have been on notice since 4 February 2013 that this interlocutory fixture would proceed today. That decision was made by the Court in the light of difficulties that the plaintiffs were having in relation to representation. Given the background of this case with two aborted trials, it would not have been appropriate to delay the determination of this interlocutory application. I therefore issued a Minute yesterday indicating that Mr Jo could attend this hearing today by telephone if he wished. He has not so appeared. This morning an email was brought to the Court’s attention by the Registrar which was forwarded by a person I understand to be the plaintiffs’ son. The email is from Mrs Jo, the second-named defendant (by another name). She essentially goes over material similar to that previously put forward by her husband earlier in the year before the Court issued its February Minute.

[4] I therefore deal with this application in Mr and Mrs Jo’s absence.

This proceeding

[5] The proceeding was filed in April 2009. The plaintiffs seek damages for losses of building value, rental income and other expenses totalling close to $4m.

[6] Two earlier trial dates were vacated. A November 2011 date was vacated because of the plaintiffs’ failure to file briefs on time. An October 2012 date was vacated because of the plaintiffs’ inability or failure to meet security requirements.

[7] The trial date of 1 July 2013 is therefore the third trial date allocated.

The security applications

[8] The first defendant filed application for security for costs in August 2011 which eventually 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 Jo v Johnston

Details

AGLC: Jo v Johnston [2013] NZHC 552
Case: [2013] NZHC 552
Decision Date: 19 March 2013

CaseChat Overview and Summary

The case of Jo v Johnston is an interlocutory application for an order that the plaintiffs provide security for costs. The plaintiffs, Namgeun Jo and Soon Hee Kwon, filed the proceeding in April 2009 against Bernard Johnston and Southern Hospitality Limited, seeking damages for losses of building value, rental income and other expenses. The trial was scheduled for 1 July 2013, but the plaintiffs had previously failed to meet security requirements, leading to the adjournment of two earlier trial dates. Southern Hospitality Limited filed the present application for security for costs on 10 December 2012, relying on evidence from the previous application and an affidavit from the company's chief executive. The plaintiffs did not attend the hearing, and the court proceeded in their absence.

The court considered the general principles governing applications for security for costs, including the discretionary nature of the order and the factors relevant to the determination of a late application. The court found that the application was made promptly after the defendant became reasonably aware of the plaintiffs' likely inability to meet costs and that there had not been any needless delay. The court also noted the plaintiffs' evasiveness in relation to their assets and the difficulty of enforcing a costs order in Korea, where the plaintiffs currently reside.

The court ordered the plaintiffs to provide security for costs in the sum of $43,300, to be paid within 20 working days from 20 March 2013. The sum includes the costs of the application, which are fixed at $3,300. If the plaintiffs pay this sum to the second defendant, the amount required for security will reduce to $40,000. The court also directed that the pre-trial conference be brought forward to a date approximately 10 working days hence. The proceeding will be stayed if the plaintiffs fail to provide security as ordered, but leave is reserved for the first defendant to have the application brought back before the court for reconsideration of the stay from their perspective.

Orders