Kim v Lee - [2015] NZHC 3237

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-1378 [2015] NZHC 3237

BETWEEN
SUNG HYUK KIM

Plaintiff

AND

HYUNG SOO LEE Defendant

Hearing: 30 November and 1, 2 and 4 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 3237 [15 December 2015]

Introduction

[1] The plaintiff sues the defendant based on an alleged contract. He now claims

$91,157 plus interest on a sum of $111,157 from 1 June 2013 to 19 August 2013 and interest on $91,157 from 20 August 2013 to the date of judgment. In addition, he seeks costs based on Category 2 Band B and costs in relation to a caveat judgment given in his favour, together with disbursements as fixed by the Registrar.

[2] The plaintiff pleaded two claims in his statement of claim, but now only pursues the second claim. He pleads that he entered into an oral contract with the defendant and David Hong, which was later reduced to writing on 27 March 2013. The alleged terms will be discussed later. Mr Strauss advised that the claim for an order that a mortgage be registered over the defendant’s interest in land in favour of the plaintiff is now longer pursued.

[3] I note at the outset that there have been considerable difficulties in this case arising from problems with translation between Korean and English, and the differences in cultural understanding of certain legal concepts. These issues have affected the attitudes of the parties to the responsibilities they have undertaken. Due to the nature of the cultural and language differences in this case, it is not possible to put the parties’ claims into distinct boxes. This judgment is an attempt to work through the difficult issues and apply New Zealand law to the circumstances of the case.

Background

[4] This proceeding concerns members of the Korean Society of Auckland Inc. That Society was established in Auckland in 1992.

[5] The Society is now incorporated under the Incorporated Societies Act 1908. As such, its rules are registered under the Incorporated Societies Act. The objects of the Society are set out in its rules and are as follows:

3. OBJECTS

3.01 The Association shall have the following objects:

(a) To cultivate friendship, unity and good will among Korean people and their families who live in Auckland, New Zealand,

(b) To promote and encourage the development and welfare of the Korean community in Auckland,

(c) To promote the appreciation, understanding and practice of
Korean culture,

(d) To promote friendly relations between Korea and New
Zealand,

(e) To support the settlement in New Zealand of people who migrate from Korea,

(f) To raise and employ funds for the purpose in accordance with these objects,

(g) To…

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 Kim v Lee

Details

AGLC: Kim v Lee [2015] NZHC 3237
Case: [2015] NZHC 3237
Decision Date: 15 December 2015

CaseChat Overview and Summary

In Kim v Lee, the plaintiff, Sung Hyuk Kim, sued the defendant, Hyung Soo Lee, for a share of a debt owed to him by the Korean Society of Auckland Inc. The plaintiff alleged that he had entered into a contract with the defendant and David Hong to share equally the responsibility for making up any shortfall to enable the purchase of a property by the Society. The defendant maintained that he had a clear understanding that control of the property, including the financing of it, would be kept separate from the general business and affairs of the Society and that, ultimately, the property would be handed over to a charitable trust. The primary issue for the Court was whether the arrangements which the parties entered into, including the written document of 27 March 2013, satisfied the prerequisites for the formation of a contract. The Court found that the parties had reached agreement on the terms essential to the contract or manifest by the parties as essential to their bargain. The Court also found that the contract had sufficient consideration and was not unenforceable on the basis of the defendant's submissions. The Court found that the contract was an indemnity, not a guarantee, and was therefore enforceable against the defendant and Mr Hong. The Court found that the defendant was liable for one third of the remaining $273,471 owed by the Society to the plaintiff, being $91,157. The Court entered judgment for the plaintiff for the sum of $41,157 plus interest and ordered that the caveat registered against the defendant's title be removed. The Court also reserved leave to apply for an additional $50,000 if the Society did not pay the plaintiff $150,000 on or before 1 February 2016. The defendant was ordered to pay the plaintiff's costs on this proceeding and the caveat proceeding on a Category 2 Band B basis and disbursements as fixed by the Registrar.

Orders