Kim v Oh

Case [2021] NZHC 751 9 April 2021

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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

[2021] NZHC 751

BETWEEN
CHONG CHU KIM and IN SUK KIM

Plaintiffs

AND

TAE LIM OH

First Defendant

YONG SOO CHOI

Second Defendant

Hearing: 22 March 2021 at 10:00am

Appearances:

S Kang for the Plaintiffs

P C Murray for the Defendants

Judgment:

9 April 2021

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 9 April 2021 at 11:00am
pursuant to Rule 11.5 of the High Court Rules

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

Solicitors:
Fairbrother Family Law (Pamela A Fairbrother), for the Plaintiffs C L Law Limited (Sonee Chung), Auckland, for the Defendants

Copy for:
Seungmin Kang, Napier, for the Plaintiffs
Paul C Murray, Akarana Chambers, Auckland, for the Defendants

KIM v OH [2021] NZHC 751 [9 April 2021]

[1] In their first cause of action the plaintiffs sue the defendants for $571,428 as the amount repayable on 1 June 2019 under a written acknowledgement of debt of 2 June 2018. They have applied for summary judgment. The plaintiffs (Mr and Mrs Kim) are husband and wife, as are the defendants (Mr Oh and Mrs Choi). The couples were once friends, but this is yet another sad case where friends have fallen out because of business dealings. The plaintiffs live in New Zealand but have Korean citizenship. The defendants come from Korea but now have New Zealand citizenship and residence.

[2] The defendants admit signing the acknowledgement of debt, but they say that they did so because of misrepresentations by the first plaintiff. They also claim relief against oppression under the Credit Contracts and Consumer Finance Act 2003 and allege misleading conduct by the first plaintiff under s 9 of the Fair Trading Act 1986. In addition, the second defendant says that there was no consideration for her promise.

[3] The defendants have at least one arguable defence, contractual misrepresentation, and accordingly the summary judgment application fails.

Background

[4] The background is unsuccessful investment in gold mining in Mongolia. The mining was at Shariin gol about 200 kilometres north of Ulaan Bataar but off the beaten track. The case concerns two mines – called 14686A and 5582A - about four kilometres apart. Mongolian entities (Altan Khundii LLC and Orgil Ser LLC) had obtained mining rights and in turn licensed others to exploit the rights, receiving royalties in return. Dongwon Kweon is the Korean entrepreneur behind consortiums of Korean investors who put money into these mining projects. In November 2017 he entered into a joint venture agreement with Kwoonjae Lee and Tae Lim Oh, the first defendant, to exploit the mining rights through Wellich Mine LLC, a Mongolian entity. Mr Oh would be responsible for inviting investors and was in charge of financial affairs.

[5] In February 2018 Mr Oh told the plaintiffs, friends for some 15 years, about the opportunities for gold mining in Mongolia. He showed them a document “Summary of Alluvial Gold Mine Development”,…

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 [2021] NZHC 751
Case: [2021] NZHC 751
Decision Date: 9 April 2021

CaseChat Overview and Summary

In Kim v Oh, the plaintiffs, Chong Chu Kim and In Suk Kim, sued the defendants, Tae Lim Oh and Yong Soo Choi, for the sum of NZD 571,428 based on a written acknowledgement of debt dated 2 June 2018. The plaintiffs sought summary judgment. The background to the claim is an unsuccessful investment in gold mining in Mongolia. The defendants admitted signing the acknowledgement of debt but claimed that they did so because of misrepresentations by the first plaintiff, Chong Chu Kim. They also sought relief against oppression under the Credit Contracts and Consumer Finance Act 2003 and alleged misleading conduct by Chong Chu Kim under s 9 of the Fair Trading Act 1986. In addition, Mrs Choi claimed that there was no consideration for her promise.

The defendants had at least one arguable defence, contractual misrepresentation, and accordingly the summary judgment application failed. The misrepresentation claim was for damages under s 35 of the Contract and Commercial Law Act 2017. The plaintiffs’ responses were not enough to show that the misrepresentation defence was bound to fail. The plaintiffs had not persuaded the court that the misrepresentation defence was bound to fail. That finding was enough for the summary judgment application to fail.

The court dismissed the summary judgment application and reserved costs. It granted leave to apply for summary judgment and arranged a first case management conference for further directions. The parties should confer as to discovery and how language issues are to be handled.

Orders