Lee v Lee - [2018] NZHC 991

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-3204

[2018] NZHC 991

BETWEEN
DONKEUN LEE AND ILSOOK KANG

Plaintiffs

AND

HEE HYUN LEE AND MYUNG JUN LEE

as executors of the estate of TECK-KEUN LEE
First Defendants

HEE HYUN LEE AND MYUNG JUN LEE

as executors of the estate of JUNG JA YUN Second Defendants

Hearing: 8 May 2018

Appearances:

T A Hwang for Plaintiffs

A Manuson & E Hong for Defendants

Judgment:

8 May 2018

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 8 May 2018 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Queen City Law, Auckland
Prestige Lawyers Limited, Auckland

LEE v LEE [2018] NZHC 991 [8 May 2018]

Background

[1] DK Lee and TK Lee are respectively the youngest and eldest of four Korean brothers. DK Lee and his wife, Ms Kang, are the plaintiffs. TK Lee and his wife, Ms Yun, are now deceased, but the executors of their estates are respectively the first and second defendants, their daughters.

[2] TK Lee was a director of a Korean company, Hoseung CMC, of which DK Lee is chief executive. TK Lee also owns a New Zealand company, Hoseung NZ Enterprises Co Limited (“Hoseung NZ”).

[3] Substantial sums of money have been transferred from South Korea by DK Lee to TK Lee in New Zealand (or at his direction). DK Lee alleges those transfers of nearly $800,000 were consideration for his participation in the subdivision and redevelopment of properties at 354 and 356 Hillsborough Road in Hillsborough, Auckland. Hoseung NZ is said to be the vehicle for the proposed development, to accommodate all four brothers and their families.

[4] At some time about 2000, the TK Lee and DK Lee families moved to New Zealand. TK Lee and Ms Yun lived at 354 Hillsborough Road. DK Lee and Ms Kang continue to live at 356 Hillsborough Road. It transpires both properties were registered in the name of Ms Yun, with a half share in 354 being transferred to TK Lee in 2010.

[5] The proposed development did not eventuate. Relationships between the brothers and their respective families deteriorated. In 2015, Ms Yun sought to evict DK Lee and Ms Kang from 356 Hillsborough Road (the consequent Tenancy Tribunal hearing including allegations Ms Yun fabricated the tenancy agreement she relied upon), but that was resolved between the parties.

[6] In late 2016, DK Lee and Ms Kang brought the present proceeding. In this proceeding, DK Lee and Ms Kang claim the defendants hold 354 and 356 Hillsborough Road as constructive trustees for DK Lee and Ms Kang, and seek relief accordingly.

Application for security for costs

[7] The defendants apply for security for costs, saying the plaintiffs, if unsuccessful in the proceeding, will not be able to pay the defendants’ costs. They say DK Lee is not resident in New Zealand (but in Korea, where he works), and…

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 Lee v Lee

Details

AGLC: Lee v Lee [2018] NZHC 991
Case: [2018] NZHC 991
Decision Date: 8 May 2018

CaseChat Overview and Summary

The plaintiffs, DK Lee and ILSOOK KANG, brought proceedings against HEE HYUN LEE and MYUNG JUN LEE, as executors of the estates of TECK-KEUN LEE and JUNG JA YUN, respectively. The plaintiffs allege that the defendants hold certain properties as constructive trustees for their benefit, and seek relief accordingly. The defendants have applied for an order for the plaintiffs to give security for the defendants' costs in the event they are unsuccessful in the proceeding. The main issue before the court was whether it was just to order the plaintiffs to provide security for the defendants' costs, given the evidential foundation for the plaintiffs' claims and the importance of access to justice.

The court noted that the plaintiffs accept there is reason to believe they will be unable to pay the defendants' costs if they are unsuccessful. The court must balance the interests of plaintiffs' access to courts against defendants' protection from unmeritorious litigation. The court considered the apparent merits of the claim, finding there seemed a reasonable evidential foundation for the plaintiffs' allegations. Given the evidential foundation for the plaintiffs' claim, and the primacy of access to justice as a fundamental human right, the court found it just for the defendants to bear the risk they may not be able to collect on any contribution ordered. Therefore, the defendants' application for an order giving security for costs was dismissed.

In conclusion, the court found it was not just to require the plaintiffs to provide security for the defendants' costs, given the evidential foundation for the plaintiffs' claims and the importance of access to justice. The defendants' application for an order giving security for costs was dismissed.

Orders