Kung v Fitton

[2016] NZHC 2775

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-1358 [2016] NZHC 2775

UNDER	the District Courts Act 1947
BETWEEN	ALLAN KUNG Appellant
AND	DAVID ARTHUR FITTON Respondent

Hearing:	12 October 2016
Counsel:	G J Thwaite for Appellant D W Grove for Respondent
Judgment:	21 November 2016

JUDGMENT OF BREWER J

This judgment was delivered by me on 21 November 2016 at 11:00 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Gregory J Thwaite (Auckland) for Appellant

Foy & Halse (Auckland) for Respondent

KUNG v FITTON [2016] NZHC 2775 [21 November 2016]

Introduction

[1]      Mr Kung appeals a decision of Judge GM Harrison in the District Court at Auckland delivered on 13 May 2016.1     He appeals also a subsequent decision of Judge Harrison as to costs delivered on 5 July 2016.2     In support of his appeal, Mr Kung wants me to consider further evidence, an affidavit from Jiling Cao.

[2]      Mr Kung claimed against Mr Fitton pursuant to  a deed of  guarantee and indemnity.  In brief, Mr Fitton guaranteed Mr Kung’s obligations under a term loan agreement and mortgage with ASB Bank.   Mr Kung made payments of $69,200 which he wanted Mr Fitton to refund to him.  Mr Fitton accepted that he was liable to Mr Kung under the deed of indemnity and guarantee.  He accepted that Mr Kung had paid $69,200.   The only point of dispute was whether Mr Kung had received benefits which could be set off against the amount claimed.

[3]      The case when it came before Judge Harrison should, therefore, have been a simple one.  All that was at issue was whether Mr Kung had received monies which should be set-off against his claim for $69,200.

[4]      I do not overlook here that Mr Kung, no doubt inspired by his lawyers, also made numerous  other  claims  for reimbursement  of costs  he alleged  arose from Mr Fitton’s failure to indemnify him promptly.

[5]      However, the case as it unfolded became anything other than simple:

(a)       Mr Fitton never responded to Mr Kung’s third or fourth amended

statements of claim.

(b)Judge Harrison discovered an apparent knockout defence which was neither pleaded on behalf of Mr Fitton nor argued on his behalf.

(c)       Mr Kung was the only witness who gave evidence in his case.  His brief  of  evidence  was  short  and  conclusionary  and  simply  made

1      Kung v Wichman & Ors [2016] NZDC 8241.

2      Kung v Wichman & Ors DC Auckland CIV-2012-404-4214, 5 July 2016.

claims  as  to  monies  spent.    He  referred  to  financial  documents attached to his brief of evidence, but he did not explain them and they are incomprehensible.

(d)No evidence was called by Mr Fitton.  Instead, counsel relied on his cross-examination of Mr Kung.  That cross-examination centred on an affidavit  of  an  accountant,  Ms Gardien.    The  affidavit  was  in  the agreed bundle of documents but was not otherwise before the Judge as evidence.  Nevertheless, the Judge accepted it as evidence and relied upon it.

(e)      No objection was taken by counsel…