Kim v Oh

Case [2024] NZHC 1299 23 May 2024

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-675

[2024] NZHC 1299

UNDER

AND
the law of contract and tort

IN THE MATTER

of breach of contract and tort of deceit or negligent misstatement

BETWEEN

CHONG CHU KIM and IN SUK KIM

Plaintiffs

AND

TAE LIM OH

First Defendant

YONG SU CHOI

Second Defendant

Hearing: 18–22 March 2024

Appearances:

S Kang for the Plaintiffs

P Murray for the Defendants

Judgment:

23 May 2024

JUDGMENT OF GORDON J

This judgment was delivered by me on 23 May 2024 at 3 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel:
Fairbrother Family Law, Napier CL Law, Auckland
P Murray, Auckland

KIM v OH [2024] NZHC 1299 [23 May 2024]

[1] This is a case where friends have fallen out over business arrangements in relation to investments for the development of gold mining operations in Mongolia.

[2] The plaintiffs, Chong Chu Kim and In Suk Kim, are husband and wife. The first defendant, Tae Lim Oh, and the second defendant, Yong Su Choi, are also husband and wife. The two couples are of Korean ethnicity and now live in Auckland. They first met in Auckland in around 2006 and became friends.

[3]Mr and Mrs Kim make two claims in this proceeding:

(a)First, they claim against Mr Oh and Ms Su Choi for breach of contract. Mr Oh and Ms Su Choi make counterclaims against Mr and Mrs Kim by way of set off for misrepresentation under s 35 of the Contract and Commercial Law Act 2017 (CCLA) and under s 9 of the Fair Trading Act 1986 (FTA).

(b)Second, Mr and Mrs Kim claim against Mr Oh, in the tort of deceit, or alternatively the tort of negligent misstatement.

[4] The first language for all four is Korean. They each gave evidence at the hearing, Mr Oh in English and the other three in the Korean language using an interpreter. Some of the documents in the common bundle were in the Mongolian language and not all were translated. The documents in Korean were translated into English.

Background

[5] There are two key discussions between Mr Kim and Mr Oh that give rise to the claims and counterclaims. The first discussion occurred on 9 February 2018 (and again a day or so later) when Mr Oh spoke to Mr Kim about investing in gold mines in Mongolia. Mr Kim subsequently signed three investment contracts with another person (not Mr Oh) and invested a total of USD 750,000 in two gold mines.

[6] The second occasion was on 2 June 2018 when the two men spoke by phone and Mr Oh agreed to take an assignment of Mr Kim’s USD 400,000 interest in the

contract relating to one of those gold mines. Mr Oh made payment by way of a loan from Mr Kim for the full amount of the contract. The parties signed a debt acknowledgement for that amount.

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 Oh

Details

AGLC: Kim v Oh [2024] NZHC 1299
Case: [2024] NZHC 1299
Decision Date: 23 May 2024

CaseChat Overview and Summary

This case involves a dispute between two couples over investments in gold mines in Mongolia. The plaintiffs, Chong Chu Kim and In Suk Kim, allege that the defendants, Tae Lim Oh and Yong Su Choi, breached a debt acknowledgement, committed deceit, and made negligent misrepresentations. The defendants counterclaim that the plaintiffs made misrepresentations which induced them to enter into the debt acknowledgement. The High Court of New Zealand found in favour of the plaintiffs on all claims except for the claim for exemplary damages.

The plaintiffs succeeded on their claim for breach of contract. They sought damages for the amount of NZD 571,428, plus interest. The Court found that the defendants breached the debt acknowledgement and ordered them to pay the plaintiffs the amount due plus interest at 5.8 per cent from 1 June 2019. The Court refused the plaintiffs’ claim for exemplary damages.

The plaintiffs also succeeded on their claim for deceit. They sought damages of USD 350,000. The Court found that the defendant, Mr Oh, claimed to be a gold mining expert and made false representations about the risks of investing in the gold mines. The plaintiffs relied on those representations and suffered loss when the investments failed. The Court awarded the plaintiffs compensatory damages of USD 350,000 against Mr Oh and refused their claim for exemplary damages.

The Court also found that the plaintiffs succeeded on their alternative claim of negligent misstatement. The Court found that Mr Oh owed a duty of care to the plaintiffs and made false or misleading statements which the plaintiffs reasonably relied on, resulting in loss. The Court awarded the plaintiffs compensatory damages of USD 350,000 against Mr Oh and refused their claim for exemplary damages.

The Court dismissed the defendants’ counterclaims based on misrepresentation under the Contract and Commercial Law Act 2017 and misleading or deceptive conduct under the Fair Trading Act 1986. The Court found that the plaintiffs did not make the alleged misrepresentations and that the defendants did not rely on any such representations. The Court also found that the parties were not in trade for the purposes of the FTA.

The Court reserved costs pending an agreement between the parties. If the parties could not agree on costs, the plaintiffs could file a memorandum within five working days and the defendants had to reply within five days of service.

Orders