KB DEVELOPMENTS INC V YONG KEUN OH AND ANOR HC AK CIV 2006-404-002059

KB DEVELOPMENTS INC V YONG KEUN OH AND ANOR HC AK CIV 2006-404-002059

On the balance of probabilities the Court found the plaintiff instructed the first defendant to forward the funds to Max Vision (Mr Saito). The executed basic agreement and surrounding conduct (knowledge that funds had been forwarded, lack of timely protest, amendments and correspondence referring to payment through Kenton Chambers to Max Vision, and the parties' continued negotiations) demonstrate the payment was intended for the Japanese lender and not to be held in trust for the plaintiff. Consequently the plaintiff failed to prove entitlement to repayment and the claims fail.

Citation
openlaw-eaa5c48e_5fa8_42a4_8e7d_fe6e6c991f4b.pdf
Parties
Plaintiff: KB Developments Inc; First Defendant: Yong Keun Oh (Kenton Chambers); Second Defendant: United Forex (NZ) Ltd
Court
High Court
Jurisdiction
New Zealand
Judgment Date
20 December 2007
Procedural Posture
Civil (contract/trust/agency Dispute) / Judgment (trial)
Outcome
Judgment for the defendants; plaintiff's claims dismissed
Legal Topics
Retainer, Instructions to Agent/solicitor, Money Had and Received, Payment on Condition, Standby Letter of Credit, Breach of Trust, Agency Authority
Contract Trust and Fiduciary Obligations Agency Professional Conduct Retainer Instructions to Agent/solicitor Money Had and Received Payment on Condition +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 2 Authorities cited 3 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

KB Developments Inc

Plaintiff

Yong Keun Oh (Kenton Chambers)

First Defendant

United Forex (NZ) Ltd

Second Defendant

Procedural Posture

Civil (contract/trust/agency Dispute) / Judgment (trial)

Legal Issues

  1. 1 Whether the first defendant was retained as a solicitor or acted as a facilitator/agent
  2. 2 Whether the plaintiff instructed funds to be held in the first defendant's trust account or to be forwarded to the Japanese lender (Max Vision/ Mr Saito)
  3. 3 Whether the US$210,000 (US$200,000 + US$10,000) was held on trust or constituted money paid to the lender and therefore not recoverable

Ratio Decidendi

On the balance of probabilities the Court found the plaintiff instructed the first defendant to forward the funds to Max Vision (Mr Saito). The executed basic agreement and surrounding conduct (knowledge that funds had been forwarded, lack of timely protest, amendments and correspondence referring to payment through Kenton Chambers to Max Vision, and the parties' continued negotiations) demonstrate the payment was intended for the Japanese lender and not to be held in trust for the plaintiff. Consequently the plaintiff failed to prove entitlement to repayment and the claims fail.

Court Disposition

Judgment for the defendants; plaintiff's claims dismissed

Orders

  • Judgment for defendants
  • Costs to defendants in accordance with Category 2 Band B