Kim v Lee

[2015] NZHC 3229

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-1378 [2015] NZHC 3229

BETWEEN

SUNG HYUK KIM

Plaintiff

AND

HYUNG SOO LEE Defendant

Hearing:	15 December 2015
Counsel:	J Strauss for plaintiff SA Keall and T Sung for defendant
Judgment:	15 December 2015

JUDGMENT OF FAIRE J

This judgment was delivered by me on 15 December 2015 at 5:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Northern Legal, Auckland

Edwards Clark Dickie, Auckland

Kim v Lee [2015] NZHC 3229 [15 December 2015]

[1]      This proceeding was heard on 30 November, 1, 2 and 4 December 2015. That included the final submissions.

[2]      At the conclusion of the hearing on 4 December 2015, I announced to the parties that I intended to work on the judgment forthwith but would not issue the judgment  before  Friday,  11  December  2015  so  that  the  parties  had  further opportunity to resolve the case, if they wished to do so.

[3]      On 10 December 2015, I was provided with the defendant’s application to adduce additional evidence, affidavit in support and memorandum.  An attempt was made to arrange an urgent conference to deal with the application.  However, counsel were not immediately available.  Further arrangements were explored leading to the telephone conference scheduled for today.

[4]      The initial application deals with:

(a)       The payment of $150,000 that was made to the Korean Society on

7 December 2015 by the Korean Consulate; and

(b)A question raised as to the credibility or reliability of John Jong OK Yoo, who prepared one of the exhibits.

[5]      A second application was filed and raised the following issues:

(a)       When did the plaintiff become aware that the Korean Consulate was about to make a payment to the Society;

(b)      How that knowledge might affect the plaintiff’s credibility;

(c)       Whether  the  solicitor  for  the  plaintiff  and  the  Society was  aware before the trial started that the payment was about to be made; and

(d)Whether the letter of 8 December 2015 of the solicitor for the plaintiff and the Society was false.

[6]      The applications are made in reliance on s 98 of the Evidence Act 2006 and r 9.52 of the High Court Rules.  Section 98 provides:

98  Further evidence after closure of case

(1)       In  any  proceeding,  a  party  may  not  offer  further  evidence  after closing that party's case, except with the permission of the Judge.

(2)       In a civil proceeding, the Judge may not grant permission under subsection (1) if any unfairness caused to any other party by the granting of permission cannot be remedied by an adjournment or an award of costs, or both  .

….

(5)      The Judge may grant permission under subsection (1) –

(a)      if there is a jury, at any time until the jury retires to consider its verdict:

(b)      in  any  other  proceeding,  at  any  time  until  judgment  is delivered.

[7]      The possibility of payment of $150,000 by the Overseas Korean Foundation, through the Korean Consulate, had been known and, in fact, had been signalled in a letter dated 9 December 2013.  The plaintiff ’s position has been clear throughout and that is that if the defendant pays his share of the shortfall to the plaintiff and the plaintiff then receives $150,000 from the Society, the plaintiff will pay the defendant

$50,000.  If the amount is received before the defendant has paid, the defendant will receive credit for the payment.   I was advised by counsel for the plaintiff that the plaintiff has not yet received the payment from the Society.  There is, in fact, no need for further evidence to be called on this matter.   The position is covered by the current arrangements which I will incorporate in the judgment to be entered in the substantive proceeding.

[8]      So far as the second issue is concerned, that is the issue of the credibility or reliability of John Jong OK Yoo, I accept Mr Strauss’ submission that this attack is based  on  hearsay.    But,  in  any event,  the content  of Mr Yoo’s  report  is  not  in evidence before the court.  I do not regard any of this material as being helpful.  Nor do I regard there being any need or justification for any further evidence to be given based on the first application.

[9]      The second application which was filed was designed to flush out when the plaintiff became aware that a payment was about to be made to the Society.  There are  also  questions  raised  about  the  plaintiff’s  solicitor’s  correspondence  on  the matter.  I am not satisfied that I would be assisted by any of this evidence.  What is clear, however, is that if this evidence was permitted to be called, the plaintiff would want to call further evidence.  All of this I consider is unlikely to be at all helpful in relation to the dispute that I am required to adjudicate on.

[10]     Accordingly, the second application is declined.  I intend to issue judgment on the proceeding.  Costs on this matter shall be included as a separate step in the substantive  proceeding  and  therefore  included  in  the  overall  costs  order  that  is

announced in that judgment.

JA Faire J