Kwon v Quon - [2013] NZHC 1431

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-8352 [2013] NZHC 1431

BETWEEN SUNG WOO KWON and EUN JUNG PARK
Plaintiffs

ANDJO-ANN QUON Defendant

Hearing: 11, 12 and 13 March 2013

Appearances: N A Speir for the plaintiffs
H Tevita for defendant

Judgment: 14 June 2013

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 3 pm on Friday 14 June 2013

Solicitors:
Rice Craig, Papakura. Wells & Co, Auckland

KWON and PARK v JO-ANN QUON [2013] NZHC 1431 [14 June 2013]

Introduction

[1] This is a family dispute. The plaintiffs are Sung Woo Kwon (Steven) and his wife, Eun Jung Park. The defendant JoAnn Quon is Steven’s sister. Sanchul Quon (Sam) is the brother of Steven and Jo-Ann. Their mother is Jung-Ae Yi (Mrs Yi). They are all members of a Korean family who emigrated to New Zealand some years ago.

[2] The proceeding concerns a home situated at 6/2 Armoy Drive, East Tamaki, Auckland. It is registered in Jo-Ann’s sole name and is subject to a mortgage to Westpac.

[3] The plaintiffs allege that the whole of the equity in the property was advanced by them to Jo-Ann when it was purchased in 2003. Within the family, the arrangement was that Mrs Yi was to live with Jo-Ann at Armoy Drive.

[4] In 2011, Mrs Yi was trespassed from the house by Jo-Ann in self-evidently acrimonious circumstances.

[5] The plaintiffs now seek to recover in the alternative, either a 62% share in the property (alleging a constructive trust), or the sum of $150,000 comprising the equity provided by them, alleging, in the alternative, breach of contract and unjust enrichment.

[6] Jo-Ann denies that the plaintiffs are entitled to any relief. She says that the payment to her was a gift and represented her share of the family inheritance. She also advances certain affirmative defences. In respect of the plaintiffs’ claim to a constructive trust, she pleads laches and estoppel. In respect of the claim for breach of contract, she asserts that the claim is statute-barred, and in respect of the unjust enrichment claim, she pleads a change of position.

[7] It is necessary to review the factual background in some detail. Much of it is undisputed to a considerable degree. The respective cases of the parties rest upon inferences which they ask the Court to draw from undisputed material.

[8] This was formerly a close and united family. It is regrettable that a rift has developed between Jo-Ann on the one hand and the rest of the family on the other. Mrs Yi and her three children gave evidence. All except Jo-Ann had the assistance of an interpreter. All three children accept that Mrs Yi is the matriarch of the family who wields considerable moral influence over her them. She gave detailed evidence, some of which lies at the heart of the case. Her account is largely the same as that given by…

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 Kwon v Quon

Details

AGLC: Kwon v Quon [2013] NZHC 1431
Case: [2013] NZHC 1431
Decision Date: 14 June 2013

CaseChat Overview and Summary

In Kwon v Quon, Sung Woo Kwon and Eun Jung Park (the plaintiffs) brought an action against Jo-Ann Quon (the defendant) to recover a sum of money they alleged was advanced to the defendant to assist in the purchase of a property at 6/2 Armoy Drive, East Tamaki, Auckland. The plaintiffs sought either a 62% share in the property or the sum of $150,000, representing the equity provided by them, alleging in the alternative, breach of contract and unjust enrichment. The defendant denied that the plaintiffs were entitled to any relief. She claimed that the payment to her was a gift and represented her share of the family inheritance and advanced certain affirmative defences. The plaintiffs argued that they had advanced $150,000 to Jo-Ann to assist in the purchase of the property, and that they were entitled to recover the sum as a loan, subject to certain conditions. The court found that the plaintiffs were entitled to recover the sum advanced as a loan. The condition that demand would not be made unless and until Mrs Yi ceased to live in the Armoy Drive property with Jo-Ann was fulfilled in July 2011 when Mrs Yi was evicted by Jo-Ann. The issue of this proceeding constituted a demand for repayment. The plaintiffs are entitled to judgment for the amount of the advance, subject to Jo-Ann’s affirmative defences. The court rejected the plaintiffs’ claim based on constructive trust principles and found it unnecessary to consider the unjust enrichment argument. The affirmative defences were also rejected. The plaintiffs were entitled to judgment against the defendant for the sum of $150,000. Interest will run from the date of the proceeding was issued, at Judicature Act rates, on the sum of $150,000. Costs were reserved for subsequent determination if they could not be agreed.

Orders