Kim v Oh (t/a Kenton Chambers) - [2013] NZHC 2248

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-1306 [2013] NZHC 2248

BETWEEN YOUNG KWAN KIM Plaintiff

ANDYOUNG KEUN OH (TRADING AS KENTON CHAMBERS)
Defendant

Hearing: On the Papers

Counsel: J Ropati for Plaintiff
G J Thwaite for Defendant

Judgment: 30 August 2013

JUDGMENT (No.2) OF COOPER J ON COSTS

This judgment was delivered by Justice Cooper on
30 August 2013 at 3.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
J Ropati, Auckland
G J Thwaite, Auckland

KIM v OH (TRADING AS KENTON CHAMBERS) [2013] NZHC 2248 [30 August 2013]

[1] In my judgment of 30 April 20131 I gave judgment for the plaintiff in the total amount of $79,139. I reserved questions of costs, and stated that if costs could not be agreed I would receive memoranda from the parties.

[2] Costs were not able to be agreed and memoranda were duly filed.

[3] There was a delay in the Registry handing me the memoranda and when they were provided it was not possible for me to consider them immediately due to other commitments. There has, accordingly, been a delay in issuing the judgment and I regret that has occurred.

The plaintiff ’s claim for costs

[4] The plaintiff seeks costs on a category 2 band B basis in the sum of $41,814. In addition, there is a claim for disbursements in the total amount of $12,808.95.

[5] Mr Ropati submits that the plaintiff is entitled to costs as the successful party noting that, in the judgment, I concluded that the defendant had failed to comply with his professional obligations to Mr Kim, that he had failed to comply with a number of rules in the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 and that his conduct was negilgent and in breach of contract.

[6] Mr Ropati also noted that apart from the set-off claim for legal fees on which the defendant had limited success (I allowed the sum of $1,880 out of a claim for
$17,760) and the concession which the plaintiff made reducing his claim from

$117,077 to $89,784 the numerous affirmative defences that had been raised by the defendant were all unsuccessful.

[7] Mr Ropati pointed out that the plaintiff was awarded most of the general damages claimed at the trial, namely $76,316 out of $89,784. Further, the plaintiff had been awarded a sum in relation to its claim for anxiety and distress. Although the claim for exemplary damages failed, Mr Ropati submitted there was an arguable
evidential foundation for the claim to have been brought.

1 Kim v Oh [2013] NZHC 925, [2013] 2 NZLR 825.

[8] The basis upon which the plaintiff’s claim has been calculated under category

2 band B was set out in a schedule attached to Mr Ropati’s submission. A schedule of disbursements was also attached. Apart from minor respects to which I will refer in discussing Mr Thwaite’s submissions, there is no issue about the items…

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.

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Details

Case: [2013] NZHC 2248
Decision Date: 30 August 2013

CaseChat Overview and Summary

In the case of Kim v Oh (t/a Kenton Chambers), the plaintiff, Young Kwan Kim, successfully sued the defendant, Young Keun Oh, for professional negligence and breach of contract. Following a judgment in the plaintiff's favour for $79,139, the court reserved questions of costs, which were not subsequently agreed upon by the parties. The plaintiff sought costs on a category 2 band B basis, amounting to $41,814, in addition to disbursements totalling $12,808.95. The defendant opposed the plaintiff's claim for costs, proposing various alternative orders, including that costs should lie where they fall or be awarded on a global basis. Justice Cooper rejected the defendant's submissions, finding that the plaintiff was entitled to costs as the successful party. The court found that the plaintiff's claim for exemplary damages, though unsuccessful, did not justify an award of costs in favour of the defendant. Similarly, the reduction of the quantum of the claim did not disentitle the plaintiff to costs. The court also dismissed the defendant's contention that costs should lie where they fall or be set on a global basis, finding that the matters at stake in the proceeding were neither of exceptionally low value nor of little significance. The court did, however, reduce the plaintiff's costs by $2,388 to account for costs incurred in response to amended pleadings. Consequently, the court ordered the defendant to pay the plaintiff costs of $39,476 and disbursements of $12,809, totalling $52,285.

Orders