Kang v Kim - [2024] NZHC 3761

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-496

[2024] NZHC 3761

UNDER the Land Transfer Act 2017, section 143

BETWEEN

SEOK YOUNG KANG
Applicant

AND

DONGGUN KIM

and
SUJEONG LEE

Respondents

Hearing: On the papers

Appearances:

Lawrence Ponniah for the Applicant

Paul Murray/Philippa Daniels for the Respondents

Judgment:

11 December 2024

COSTS JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

This judgment was delivered by me on 11 December 2024 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

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

Solicitors:
Philip Law Office (Philip Lee), Hillcrest, North Shore, Auckland, for the Applicant C L Law Limited (Somee Chung), Takapuna, Auckland, for the Respondents

Counsel:
Lawrence Ponniah, Barrister, Eastridge, Auckland, for the Applicant
Paul Murray/Philippa Daniels, Akarana Chambers, Auckland, for the Respondents

KANG v KIM [2024] NZHC 3761 [11 December 2024]

[1] By judgment issued on 11 October 2024, the Court granted the applicant’s orginating application for an order that the caveat lodged by the applicant over the property at 182 Lake Road, Northcote, Auckland (the Property), not lapse and awarded costs to the applicant (the Judgment).1

[2] The judgment directed the parties to confer on the quantum of costs, failing which memoranda as to costs were to be filed. The parties were unable to agree on the quantum of costs, and counsel for the applicant filed a memorandum as to costs dated 4 November 2024 and counsel for the respondents filed a memorandum in reply dated 11 November 2024.

Applicant’s position

[3] Mr Ponniah, for the applicant, is seeking indemnity or increased costs from the respondents. He submits that the applicant on several occasions prior to the caveat hearing, sought to find an amicable resolution to the matter. Paragraph [3] of his memorandum details the efforts he says the applicant made to avoid the cost of the caveat hearing.

[4] Mr Ponniah submits that the respondents had no chance of being successful in its opposition to the caveat application for the following reasons:

(a)on the face of the affidavit evidence there were clear disputed questions of fact, and disputes involving credibility of witnesses;

(b)on the face of the affidavits, there was clear evidence of a reasonably arguable case for an interest in the Property in the form of contributions (direct or indirect to the Property and its acquisition), the verbal agreement on or about 18 December 2022, and part-performance of that verbal agreement;

1 Kang v Kim [2024] NZHC 2950.

(c)the respondents’ opposition merely created disputed questions of fact and issues involving credibility of witnesses.

[5] Mr Ponniah submits that the respondents continued their opposition to the application despite the fact that:

(a)the applicant’s counsel’s submissions of 8 August 2024 set out clearly how on the evidence each of the three limbs of the doctrine of specific performance was met and how the requirements for the existence of an institutional constructive trust were met;

(b)it was obvious on the balance…

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 Kang v Kim

Details

AGLC: Kang v Kim [2024] NZHC 3761
Case: [2024] NZHC 3761
Decision Date: 11 December 2024

CaseChat Overview and Summary

In Kang v Kim, Seok Young Kang sought indemnity or increased costs from Donggun Kim and Sujeong Lee, who opposed Kang's application to prevent the lapse of a caveat over a property in Northcote, Auckland. Kang argued that the respondents' opposition was hopeless due to disputed facts and credibility issues, while the respondents contended that their position was sufficiently arguable to avoid increased costs. The court considered the arguments and submissions from both parties regarding the merit of the respondents' opposition and the appropriateness of the costs claimed by Kang. The respondents' opposition was based on the proposition that disputed issues of fact and credibility did not need to be determined in respect of the caveat application, which the court found to be arguable. The court rejected the application for indemnity or increased costs, finding the respondents' position not unarguable. However, the court also dismissed the respondents' application for a reduction in costs due to the rejection of a 2B costs offer, ruling that the applicant's rejection of the offer did not justify a reduction. The quantum of costs was assessed on a 2B basis, with a total of $11,352.50, minus an item claimed three times and a disallowed claim for preparing the memorandum as to costs, resulting in a final order of $11,352.50 plus disbursements of $1,437.80. The respondents were ordered to pay these costs to Kang.

Orders