Kim v Oh - [2013] NZHC 925

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-1306 [2013] NZHC 925

BETWEEN YOUNG KWAN KIM Plaintiff

ANDYOUNG KEUN OH (TRADING AS KENTON CHAMBERS)
Defendant

Hearing: 8, 9, 10 April 2013

Appearances: J Ropati for Plaintiff
G J Thwaite for Defendant

Judgment: 30 April 2013

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on
30 April 2013 at 4.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
J Ropati, PO Box 90 232, Auckland
G J Thwaite, PO Box 6239, Wellesley Street, Auckland 1141

KIM V OH (TRADING AS KENTON CHAMBERS) HC AK CIV-2012-404-1306 [30 April 2013]

Contents

Introduction ............................................................................................................[1] The facts ............................................................................................................... [11] Before the judgment of Heath J ....................................................................[12]
After the judgment of Heath J ......................................................................[73] The allegations .....................................................................................................[90] The defences.........................................................................................................[96] The law ...............................................................................................................[108] Liability .............................................................................................................. [119] A solicitor/client relationship? ...................................................................[120]
Did the defendant fail to comply with his obligations pursuant to the /client relationship?...............................................................................................[131] Did the defendant’s failures cause the loss claimed by Mr Kim? ..............[147] Disentitling actions by Mr Kim? ................................................................[152] General and exemplary damages ...............................................................[157]

Quantum .............................................................................................................[164] Result..................................................................................................................[179]

Introduction

[1] The New Korea Herald Ltd (“NKHL”) published a Korean language newspaper circulated in New Zealand. Between 7 March and 2 May 2008, the newspaper published seven articles about a Mr Jung Nam Lee. The articles were published in printed form, and were also made available on-line on the newspaper’s website.

[2] Mr Lee considered that the articles had defamed him. He commenced a proceeding in relation to the articles in August 2008. There were three defendants: NKHL, Mr Jong Ok Yoo, who was a director of NKHL and the newspaper’s editor, and Mr Young Kwan Kim, who was also a director of NKHL. Mr Kim is the plaintiff in this proceeding. Mr Oh, the defendant, practised as a solicitor in a firm which he called Kenton Chambers. He is the sole principal of the firm. Mr Oh accepted instructions to act for all three defendants in the defamation proceedings.

[3] The trial of Mr Lee’s defamation claim was set down for hearing before Heath J in June 2010. In circumstances that will be later described, Mr Oh’s firm withdrew on the eve of the trial. Mr Yoo appeared for himself, but Heath J recorded that there was no appearance by or on behalf of NKHL or Mr Kim. The claim against Mr Kim proceeded by way of formal proof, Heath J being of the view that Mr Kim had simply elected not to appear.

[4] Heath J gave judgment for the plaintiff on 9 November 2010.1 He held that the articles were defamatory and that neither NKHL nor Mr Yoo had any defence to the claims. He noted that Mr Kim was a director of NKHL and that, on Mr Yoo’s evidence, he was a benefactor who had not taken an active role in its operation. Nevertheless, he considered that 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 Kim v Oh

Details

AGLC: Kim v Oh [2013] NZHC 925
Case: [2013] NZHC 925
Decision Date: 30 April 2013

CaseChat Overview and Summary

The plaintiff, Mr Kim, initiated proceedings against the defendant, Mr Oh, who was a solicitor and principal of Kenton Chambers, seeking to recover legal costs and damages incurred due to the defendant's alleged failure to comply with his obligations as Mr Kim's solicitor in a separate defamation case. The court was required to determine whether Mr Oh had breached his professional duties, caused Mr Kim's losses, and if there were any disentitling actions by Mr Kim. The court also needed to assess the quantum of damages, if any, that should be awarded to Mr Kim.

The court found that a solicitor-client relationship existed between Mr Kim and Mr Oh, and that Mr Oh failed to comply with his professional obligations by not keeping Mr Kim informed about key developments in the defamation case, including the trial date, the need for payment of a $20,000 retainer for counsel, and the withdrawal of Kenton Chambers as his solicitor. These failures resulted in Mr Kim being unrepresented at the trial, leading to a default judgment being entered against him. The court rejected Mr Oh's defences, including the argument that the relationship was conditional on the payment of the $20,000 retainer, as there was no evidence that Mr Kim was ever asked to make that payment.

The court found that Mr Oh's failures caused the loss claimed by Mr Kim, as the costs incurred in setting aside the default judgment would not have been necessary had Mr Oh complied with his professional obligations. The court also dismissed the argument that Mr Kim's conduct should disentitle him to the relief claimed, noting that his failure to be more proactive in making inquiries about the litigation progress was explicable by his ill-health at the relevant times.

The court awarded Mr Kim $5,000 in general damages for anxiety and distress caused by the defendant's breaches of duty and contract, but rejected the claim for exemplary damages. The court also ordered a reduction in the damages claimed to account for the possibility that an application under r 10.9 of the High Court Rules could have resulted in a less costly process to set aside the default judgment.

In conclusion, the court awarded Mr Kim $79,139 in damages, subject to the parties agreeing on costs or the court receiving memoranda from the parties if costs cannot be agreed.

Orders