Lee v Ge HC Auckland CIV 2010-404-3599

[2010] NZHC 1585

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-003599

BETWEEN  YOON LEE Appellant

ANDZHI HONG GAO LIN GE

First Respondents

AND  JOHN CARTER

BRENT O'CALLAGHAN TIMOTHY UPTON SLACK ANTHONY JAMES WOODHOUSE Second Respondents

Hearing:         18 August 2010

Appearances: Appellant, Y Lee, in person

P McPherson for the first Respondents (leave to withdraw) A Challis & K Robinson for the Second Respondents

Judgment:      18 August 2010

ORAL JUDGMENT OF PRIESTLEY J ON INTERLOCUTORY APPLICATION

Counsel:

P McPherson, Hesketh Henry, Private Bag 92093, Auckland 1142. Fax: [phone]
Email: [email protected]

A Challis & K Robinson, McElroys, P O Box 835, Shortland Street, Auckland 1140. Email: [email protected]

Copy to:

Mr Y Lee, P O Box 33718, Takapuna. Email: [email protected]

LEE V GAO  AND ANOR HC AK CIV-2010-404-003599  18 August 2010

[1]      The first respondents sued the appellant for negligence.

[2]      In a reserved judgment, delivered in the Auckland District Court on 14 May

2010, Judge Gittos found in the first respondents’ favour and awarded damages against the appellant.

[3]      Also before the Judge were five cross-claim causes of action by the appellant against the second respondent, a firm of solicitors, who were acting for the vendor on the relevant transaction.   The Judge dismissed them all.   A sixth cause of action (deceit) was abandoned.

[4]      This hearing deals with an interlocutory application by the appellant (who is currently acting for himself) in which he seeks:

a)        Leave to adduce new evidence on the appeal. b)         Leave to amend the pleadings on the appeal. c)  Orders relating to further discovery.

[5]      As  will  be  apparent  from  this  short  judgment,  counsel  for  the  second respondent has sensibly agreed to certain documents, which were not discovered in the District Court, being considered by the Judge presiding over the appeal.

[6]     The application for leave to amend pleadings is, in the circumstances, unnecessary.  The issue of further discovery was not pursued.

[7]      There was an initial hearing date for these interlocutory applications on 4

August 2010 before Ellis J.  At that stage the application extended to both first and second respondents.  The first respondent was obliged to file a notice of opposition and appeared on 4 August.   Because of the appellant’s ill health the matter was further adjourned until today.

[8]      After  4  August  the  appellant  abandoned  his  appeal  so  far  as  the  first respondent was concerned.  In those circumstances Mr McPherson seeks costs on the

2B scale for the first respondent.  Mr Lee does not oppose that.  Accordingly costs on this interlocutory application, up to but not beyond the notice of abandonment, are ordered.

[9]      The appellant’s abandonment, of course, only related to the interlocutory application as it affected the first respondent.  The substantive appeal remains afoot against both respondents.  A one day hearing will occur on 16 September 2010.

[10]     I  was  further  asked  by  counsel  to  make  directions  in  respect  of  the substantive  appeal.     By  consent  the  bundle  will  be  prepared  by  the  second respondent.  The outline submissions of the appellant are to be filed and served on 2

September 2010.   The outline submissions of the respondents are to be filed and served by 9 September 2010.  As far as the bundle is concerned, that can be filed any time up to three working days before trial.

[11]     The applicant relied on five supporting affidavits.   These are in the main matters of opinion and analysis.  The appellant accepts that those affidavits are not admissible at the appeal hearing.  However, some of the documents referred to will be adduced for the purposes of the appeal.

[12]     These are (there either being consent or no opposition by Ms Challis):

a)        All the materials exhibited to the affidavit of Mr C I Alexander.

b)Emails  relating  to  the  legal  executive,  Mr  Ikinepuli,  relevantly employed  at the time by the second respondent, the emails being dated 19 August, 23 August, and 1 September.

[13]     I direct those emails and adduced materials are to appear in the bundle under a separate tab.

[14]     So far as the pleadings are concerned, the issues in the appeal, between the appellant and second respondent, arise out of the five extant causes of action to which I have referred.   I note, to guide the presiding Judge, but mainly to allay understandable anxieties raised by Ms Challis, that no new cause of action arises.  I

note Mr Lee’s assurance that the newly admitted documents are solely relevant to and arguably particulars of, his dismissed claims against the second respondent. Their relevance, in my view, relates to those portions of any pleaded causes of action which  might  be  riding  independently  of  the  alleged  undertaking  given  to  the appellant by Mr Ikinepule, which the Judge found it had not in fact been given.

[15]     Costs on this interlocutory hearing are reserved.

[16]     I also record the comment I made to the appellant at the outset of the hearing that he would be well advised to retain counsel for the purposes of guiding him on the possible outcome of this appeal and indeed appearing on it should that be necessary.  I accept that the findings made against the appellant in the District Court are matters on which he will have understandably strong feelings.   Very strong feelings, however, will frequently cloud the judgment and objectivity of a litigant in person.  Mr Lee understood those comments and accepts them in the spirit in which they were offered.

.......................................… Priestley J