Jo v Park HC Christchurch CIV 2009 409 2847

[2010] NZHC 525

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

CIV 2009 409 002847

BETWEEN  NAMGEUN JO

Plaintiff

AND  YUN SUN PARK

First Defendant

AND  HAN UM LEE

Second Defendant

AND  IN JE CHO

Third Defendant

AND  SANG HUN LEE

Fourth Defendant

AND  JEE AE JUNG

Fifth Defendant

AND  SOON MOK HONG

Sixth Defendant

AND  MYUNG SUN PARK

Seventh Defendant

AND  HE JA CHOO

Eighth Defendant

AND  CHANG HO LEE

Ninth Defendant

AND  KUN HWAN LEE

Tenth Defendant

AND  JUNG YUN DO

Eleventh Defendant

NAMGEUN JO V YUN SUN PARK AND ORS HC CHCH CIV 2009 409 002847 23 April 2010

AND  DONG HOON KANG

Twelfth Defendant

Hearing:              17 March and 22 April 2010

Appearances: N Jo for Plaintiff (on 17 March 2010)

T Tee for Plaintiff (on 22 April 2010)

G K Riach and K Hill-Dunne for Defendants (on 17 April 2010)
G Riach and C Mundy-Smith for Defendants (on 22 April 2010)

Judgment:           23 April 2010

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
As to strike out application

Background

[ 1 ]  Mr Jo sues twelve defendants. He initially represented himself and filed his

own pleadings. The statement of claim is at best difficult to follow. Following an adjournment of the defendants’ application, part-heard, Mr Jo has retained Mr Tee to appear for him.

Defendant’s application

1. The defendants apply for orders striking out the plaintiff’s statement of claim

on the grounds that:

(a)The proceedings are an abuse of process in that they replicate allegations at present before the District Court in four proceedings;

(b)The proceedings disclose no reasonable cause of action.

(c)The proceedings are generally frivolous and vexatious.

2

Preliminary – unless order

1. The hearing of the defendants’ application commenced on 17 March 2010. It was adjourned that day for the reasons set out in the Court’s Minute in this proceeding that day and for reasons now summarised in the judgment which I have delivered today in the related proceeding CIV 2009 409 2846.

2. In that judgment I declined the plaintiff’s application for an order setting aside the unless order. I now decline the same application made by the plaintiff in this proceeding. I do so for the same reasons as set out in my judgment in the 2846 proceeding.

3. I therefore now turn to the consider the defendants’ application for orders striking out the plaintiff’s statement of claim in this proceeding on a formal proof basis.

The relationship between this proceeding and four District Court proceedings

1. Two of the defendants have filed affidavits. They have produced copies of the proceedings filed by Mr Jo in the District Court.

2. The following proceedings have been produced in evidence (the defendant descriptions in brackets being the reference to the defendants’ number in the present proceeding in this Court):

   CIV 2009 009 3353 Namgeun Jo v Jee Ae Jung (fifth defendant) and
   Myung Sun Park (first defendant).

   The plaintiff seeks from Jee Ae Jung and Myung Sun Park $100,000.00 and
   $95,000.00 respectively pursuant to rights alleged to flow out of interests in a

   joint venture agreement entered into in 2006 and assigned to the plaintiff. The same defendants are sued in this proceeding for the same sums.

   CIV 2009 009 3354 Namgeun Jo v Jee Ae Jung (first defendant), Kun Hwan Lee (fourth defendant) and two others.

   The plaintiff sues Jee Ae Jung and two others (jointly) for $54,500,00 and Kung Hwan Lee for $54,500.00 which are alleged to be sums owing to the plaintiff as a result of his interest in a joint venture over Lot 9 (but the joint venture agreement attached to the 3354 proceeding referring to Lot 10). This claim (expressed as $54,500.00 in the District Court proceeding) appears to be the same claim as that claimed in the High Court proceeding (but as $54,000.00).

   CIV 2009 009 3392 Namgeun Jo v Han Um Lee (second defendant) and
   Kun Hwan Lee (tenth defendant).

   The plaintiff sues the defendants for $160,000.00 each, alleging that the plaintiff is entitled to such sums by reason of his interests by a joint venture in relation to Lot 10. These sums are also claimed by the plaintiff against those defendants in the present proceeding on the same grounds.

   CIV 2009 009 3393 Namgeun Jo v Soon Mok Hong (sixth defendant) Kun Hwan Lee (tenth defendant) and another.

   The plaintiff sues Soon Mok Hong and Kun Hwan Lee for $10,000.00 and $129,243.24 respectively, alleging that these sums are owed as a result of the plaintiff’s interests in a joint venture in relation to Lot 10. These sums are also claimed in the present proceeding before this Court on the same grounds.

Discussion as to all District Court claims

1. Each of the District Court claims was filed in the District Court in November 2009 (on various dates from 9 November 2009 to 16 November 2009). Each proceeding has attached as the relevant contractual document a joint venture agreement entered into by one Hee Ja Choo and various purchasers.

2. This Court does not know whether other proceedings have been issued in the District Court against further defendants who are also defendants in this Court. As it is, six of the twelve defendants sued in this Court in this proceeding are sued in at least one of the District Court proceedings. Two of them are sued in three of the District Court proceedings.

Discussion – duplication of proceedings

[10] The duplication of proceedings is a well recognised category of conduct which may constitute an abuse of process. Generally it will be viewed as prima facie vexatious and an abuse of process to pursue a second action while a first action is alive: Buckland v Palmer [1984] 3 All ER 554; Otis Elevator Co. Ltd v Linnell Builders Limited (1991) 5 PRNZ 72.

[11 ] By not filing any appearance in opposition to the defendants’ application, the plaintiff provided no explanation to the Court for his decision to pursue this High Court proceeding in circumstances which amount to a prima facie abuse. There remains no explanation before the Court which would cast the present proceeding in a different light. Submissions filed by Mr Tee emphasise that there are causation issues to be pursued. The implicit suggestion is that the statement of claim could be made compliant with the requirements of pleading by more clearly focussing on causation of loss. But this does not address the central problem of duplication of proceedings.

[12] On the face of the documents and the evidence provided by the defendants, I have considered whether the possibility that there is a duplication in the two courts of only half the total number of High Court defendants should make any difference. In the absence of evidence from the plaintiff covering the exact number of defendants he is pursuing, or intends to pursue, in the District Court I am not prepared to attach any weight to the difference in the numbers of defendants. Joinder orders, or third party notices could very quickly change the position in the District Court.

[13] There is a further arguable point of difference between the proceedings in the two jurisdictions in that the plaintiff in this Court includes in his prayer for relief a request for the removal of a caveat “on the plaintiff’s land” and the transfer of the land “to the plaintiff”. Leaving aside the apparent inconsistency between those two forms of relief (it may be that a pleading by the plaintiff that “Min Kyu Park declared a trust... stating that he held the land on behalf of the joint venture agreement” is intended by the plaintiff to lead to an argument as to a trust in his favour) there is an inadequacy of pleading in relation to the “caveat” to treat what is on the face of it a proceeding for recovery of money as, in part, a proceeding for caveat removal. The pleading is wholly deficient in relation to providing the basic information to support such a prayer for relief.

Conclusion – abuse of process

[ 14] The statement of claim filed in this Court is an abuse of process of this Court. It is appropriate that it be struck out on that basis.

Other grounds for striking out the claim

[15] It therefore becomes unnecessary for me to consider the alternative grounds
on which the defendants seek an order striking out the plaintiff’s statement of claim.
There are very serious difficulties with the manner in which the statement of claim is

pleaded. The rules as to pleading, and in particular r 5.17(1) High Court Rules are repeatedly breached. There are separate and different facts relevant to individual defendants which have not been pleaded as different causes of action. As a consequence of both that and the indistinct, unclear and run-together pleading of factual detail I am not satisfied that I properly understand exactly what the plaintiff’s claim is against each defendant in the sense of how it arises and how each defendant is said to have breached his or her obligations. That difficulty of understanding will apply equally to the defendants – I note that although the defendants have the benefit of legal representation, many (if not all) appear from their names to be Korean and may well be having to read this pleading in a language which is not their first language. The lack of clarity in the English used in the statement of claim then becomes an added burden and an impediment to the just disposition of any proceeding.

[16] I would therefore have, if necessary, struck out the statement of claim on the basis that it is likely to cause prejudice.

Orders

[ 17]    I order:

(a)  The plaintiff’s statement of claim in this proceeding is struck out.

Costs

[ 18]    Mr Riach, on behalf of the defendants, seeks costs.

[ 19]    It is appropriate that costs follow the event and that the plaintiff be ordered to pay the defendants’ costs.

[20] Mr Riach submits that this is an appropriate case for increased costs pursuant to r 14.6(3). I agree. In particular, I view this as being a case where in terms of r 14.6(3)(d), some other reason exists which justifies the Court making an order for increased costs despite the principle that the determination of costs should be predictable and expeditious. This is close to a case where indemnity costs might have been awarded, particularly under r 14.6(4)(a) which allows for indemnity costs where proceedings have been commenced unnecessarily. But it is conceivable that as a litigant in person he perceived some good reason for commencing this High Court proceeding notwithstanding the fact that very substantial parts of it (if not all of it) were covered by proceedings already commenced in the District Court.

[21 ] Taking into account the fact that the company initially sought its representation through a lay person, the uplift on an ordinary costs award should not be extreme.

1. Mr Tee to the contrary submits that there should be no uplift from a 2B award. He notes the financial difficulties Mr Jo and his interests are under, by virtue of the mortgagee sale which Mr Tee referred to yesterday. Mr Tee says it is doubtful that Mr Jo or his company will be able to meet a costs award. Those are not reasons for altering what would otherwise be the appropriate level of an order of costs. This is commercial litigation which the plaintiff chose to initiate knowing its own circumstances.

2. The fact that I have found the plaintiff was unjustified in bringing this proceeding in this Court inherently means that the plaintiff has unnecessarily contributed to the defendants’ expense in the proceeding.

3. I order that the plaintiff pay the costs of this proceeding to the defendants in a sum representing a 50% uplift on a 2B award, together with disbursements to be fixed by the Registrar.

[25] Mr Riach seeks a particular certificate in relation to Item 2, Schedule 3 High Court Rules. He notes that although the defendants did not have to file a statement of defence a significant proportion of the attendances covered by Item 2 (such as receiving instructions and researching facts and law) were required in this case, particularly because of the difficulty in understanding the allegations in the statement of claim. Mr Tee opposes any certificate upon the basis that the proceeding moved promptly to a strike out application, and that the recoverable items for that should be sufficient. I accept Mr Riach’s submission that the defendants will have had attendances which are properly referable to Item 2. I consider Mr Riach’s suggestion of a certificate for two thirds of Item 2 (that is one and a third day) to be appropriate. I certify accordingly. There is to be no uplift on that item.

Solicitors:

Ambler Tee, Christchurch Harmans, Christchurch AND

N. Jo, Christchurch