Jong v Yang - [2010] NZCA 343

IN THE COURT OF APPEAL OF NEW ZEALAND

CA432/2007
[2010] NZCA 343
AND BETWEEN YEON SOON JONG (ALSO KNOWN AS DEBORAH KO)

Applicant

ANDDO YUN YANG

Respondent

Counsel:P Chambers for Applicant

P A Craighead for Respondent

Judgment:2 August 2010 at 10.30 am

JUDGMENT OF ARNOLD J

The application for review of the Registrar’s decision refusing to waive or vary the payment of security for costs is declined. The applicant must pay security in the amount of $4,740 within 20 working days of the date of this judgment.
REASONS
Introduction
[1]        The applicant, Ms Jong, has filed an appeal and applied to the Registrar for a dispensation from the requirement to pay security for costs. By letter dated 26 February 2008, the Registrar declined the application on the grounds that the applicant had not provided sufficient evidence of impecuniosity and the matter was not of genuine public interest. Security was fixed at $4,740.
[2]        On 19 May 2008, Ms Jong filed an application for a review of the Registrar’s decision. It appears that this application was not referred to a Judge until it was recently referred to me.
Background
[3]        The applicant was married to a Mr Ko. They entered into an oral loan agreement with Mr Yang, in which Mr Yang advanced them 200,000,000 Korean won (approximately $260,000). The parties later executed a written “Investment Agreement”, intended to reflect the oral agreement, which recorded that the loan was made to New World Vision Centre Ltd, the entity through which Mr Ko and Ms Jong operated a church and a homestay school business. Following this, the parties signed a “Deed of Indebtedness” which recorded that Mr Ko and Ms Jong were personally liable for the loan.
[4]        Subsequently, Mr Ko and Ms Jong had marital problems and Mr Ko returned to South Korea. After Mr Ko’s departure, the interest due under the loan went unpaid. Solicitors for Mr Yang demanded repayment of both the principal and interest. Solicitors for Ms Jong advised that repayment would occur when a property owned by Mr Ko and Ms Jong had sold. Mr Yang then placed caveats on properties in South Korea owned by Ms Jong, and she travelled there to attempt to refinance the loan. Ultimately, however, no repayments were made.
[5]        Mr Yang commenced proceedings to recover the debt and applied for summary judgment. At the first call, Ms Jong and Mr Ko were represented by counsel. The proceedings were adjourned to give time for settlement discussions and for the filing of a notice of opposition if the discussions were unsuccessful. At the next call, counsel advised the Court that settlement discussions were continuing. The Court made timetabling orders in the event that the discussions failed, which included a time for the filing of any notice of opposition. Prior to the next call, counsel for Mr Yang filed a memorandum advising that he intended to seek summary judgment. By the time of that call, no notice of opposition had been filed. Counsel appeared…

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 Jong v Yang

Details

AGLC: Jong v Yang [2010] NZCA 343
Case: [2010] NZCA 343
Decision Date: 2 August 2010

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application from Yeon Soon Jong (also known as Deborah Ko) to review the Registrar's decision that refused to waive or vary the payment of security for costs. The Registrar had previously declined Jong's application for a waiver of security for costs on the grounds that she had not provided sufficient evidence of impecuniosity and that the matter was not of genuine public interest. The security was fixed at $4,740. Jong filed an application for a review of the Registrar's decision, which was eventually referred to a Judge.

The legal issues before the court were whether Jong had established that her financial circumstances had worsened since her application for waiver was declined, whether her appeal had any realistic prospect of success, and whether the appeal engaged the public interest or had anything of an exceptional character that warranted a waiver or reduction in security for costs. The court needed to determine whether the Registrar's decision was correct and whether Jong had provided sufficient evidence of impecuniosity and that the matter was of genuine public interest.

The court found that Jong's evidence of her financial position was incomplete and confusing. Furthermore, the court found that Jong's appeal did not appear to have any realistic prospect of success. The Associate Judge Abbott had correctly interpreted the High Court Rules and made findings of fact that were open on the evidence. Jong was represented at call hearings and had several opportunities to raise a defence. If Jong's contention was that she was not personally liable for the debt, this should have been raised well before the enforcement stage. The court also found that Jong had not established that the appeal engaged the public interest or that there was anything of an exceptional character in it that warranted a waiver or reduction in security for costs.

Accordingly, the court declined the application for review of the Registrar's decision declining security for costs. Jong must pay security for costs in the sum of $4,740 within 20 working days of the date of this judgment. If security is not paid, the respondent will be entitled to apply to have the appeal struck out.

Orders