Kim v Park [2012] NZHC 375 (9 March 2012)

Last Updated: 24 June 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-366 [2012] NZHC 375

BETWEEN BOK YEON KIM, HYUN HEA CHOI AND HYUN KYUNG CHOI

Plaintiffs

AND HEE JONG PARK First Defendant

AND PIL OK LEE Second Defendant

AND KYUNG JAE KIM Third Defendant

Hearing: 15 September 2011

Counsel: A J Steele for the Plaintiffs

No appearance by or on behalf of the defendants

Judgment: 9 March 2012

_{RESERVED JUDGMENT OF ELLIS J}

This judgment was delivered by me on 9 March 2012 at 11am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

_{Solicitors: Martelli McKegg, PO Box 5745, Auckland 1141}

KIM & CHOI V PARK, LEE & KIM HC AK CIV-2011-404-366 [9 March 2012]

[1] The plaintiffs are Mrs Kim and her two daughters (the Choi sisters). They allege in their statement of claim that they entered into a joint venture with the first defendant, Mr Park, a property investor from Korea, who is married to the second defendant, Mrs Lee. Mr Park now lives in Korea and Mrs Lee lives in Australia.

[2] In the statement of claim the plaintiffs seek various orders arising from Mr Park’s alleged breach of fiduciary duty in the context of that joint venture. Essentially, the plaintiffs allege that Mr Park breached his duty by withdrawing over half a million dollars from the joint venture’s bank account and used those sums to purchase a share of a property in Helensville (“the Helensville property”).

[3] The plaintiffs also seek orders against Mrs Lee in relation to claims of dishonest assistance and/or knowing receipt.

[4] The third defendant, Mr Kim, is the registered proprietor of the Helensville property.

[5] Orders for substituted service on the first and second defendants were made and service of the proceedings was effected in accordance with those orders. Following the joinder of Mr Kim, he was also served (Mr Kim remains in New Zealand). None of the three defendants have subsequently taken any steps in the proceedings and the matter therefore proceeded by way of formal proof.

[6] At the hearing I heard evidence from Mrs Kim (in translation) and from one of her daughters, Hyun Kyung Choi. Their evidence disclosed the following.

[7] Mrs Kim and Mrs Lee had been friends for about four years when, in mid-

2004, Mrs Lee and Mr Park approached Mrs Kim with a proposal that they jointly invest in a property at 67 Trig Rd, Whenuapai. Mr Park was a real estate agent. There were two houses on the property. The plan was a simple one: to jointly purchase the property, rent out the two houses and, three years later, sell it for a profit.

[8] Mrs Kim agreed to contribute $520,000 in cash and $400,000 in borrowed funds towards the purchase price and to service the lending for the borrowed funds. Mr Park was to borrow approximately the same amount (being the remainder of the purchase price plus a small amount extra) and was to service that loan. It appears that neither Mr Park nor Mrs Kim were easily able to obtain finance because they were not permanent residents. Mrs Kim therefore asked her daughters for assistance and they agreed.

[9] The agreement for sale and purchase of the Trig Rd property was signed on

14 August 2004 with a purchase price of $1,810,000. In formal terms, the Choi sisters and Mr Park were both the purchasers and the registered proprietors.

[10] Mrs Kim’s cash contribution to the venture was made in three tranches: (a) Payment of the $150,000 deposit to the real estate agents;

(b) Payment of $292,000 to the lawyers engaged by Mr Park;

(c) Payment of $78,000 to Mrs Lee to hold on behalf of the joint venture. [11] In the end a single loan of $1,320,000, which combined Mrs Kim’s and

Mr Park’s proposed borrowings, was taken out in the names of the Choi sisters. The loan was secured by a mortgage over the property. The mortgage account and a cheque account were held in the name of Mr Park and the Choi sisters.

[12] The plaintiffs were responsible for making the interest payments on $400,000 or 30.3 per cent of the loan, and Mr Park was responsible for the remainder.

[13] Mrs Kim paid her share of the interest to Mr Park in cash.

[14] Mr Park made his interest payments into the joint venture’s bank account. Overall it appears the payments accorded with the agreement (i.e. 69.7 per cent) until May 2010. However, these payments were irregular in terms of their timing and size.

[15] The two houses on the property were rented out for a combined total of approximately $900 per week and the rental received was applied to the mortgage.

[16] Mr Park was entrusted with managing the property investment, attending to legal and financial matters, and ensuring that all loan repayments were met.

[17] In October 2007, at Mr Park’s behest, the plaintiffs agreed to borrow a further

$300,000 from Westpac and a $300,000 overdraft facility. Mr Park and the Choi sisters were again the relevant account holders. The understanding was that the monthly mortgage repayments and maintenance costs would be made through these accounts.

[18] In her evidence, Mrs Kim said that she and Mr Park were to meet the interest repayments equally. By contrast, in Hyun Kyung Choi’s evidence she said that Mr Park was to meet all the interest costs of the further borrowing.

[19] It seems that funds were regularly transferred from the joint venture’s bank account to service the mortgage and the additional loan. But between 24 October

2007 and 29 May 2008 Mr Park made the following additional withdrawals which were deposited into accounts in Mrs Lee’s name:

(a) $80,000 on 24 October 2007; (b) $220,000 on the same day;

(c) $150,000 on 12 December 2007; (d) $20,000 on 21 January 2008;

(e) $20,000 on the same day;

(f) $20,000 on 7 February 2008.

[20] On 27 March 2008, Mr Park deposited $80,000 into the account.

[21] The plaintiffs knew nothing about these transactions when they occurred. Sometime in early to mid 2008, the sisters noticed that these large unexplained withdrawals had been made.

[22] In May 2008, Mrs Kim went to Mr Park’s home and confronted him. She said that Mr Park admitted to her that $300,000 of the withdrawn funds had been used to purchase the Helensville property. On 28 May 2008, Mr Kim (apparently under some duress and in an intoxicated state) wrote and signed a document which (translated from the Korean) recorded:

Address: 67 Trig Road, Whenuapai

On 28 January 2005 by purchasing the above property jointly Hee Jong Park, Hyun Kyung Choi, Hyung Hea Choi (ownership: Hee Jong Park 50%, Hyun Kyung Choi 25%, Hyung Hea Choi 25%), as to the total Westpac loan amount being one million three hundred twenty thousand dollars, each party is liable to:

Hee Jong Park: nine hundred and twenty thousand dollars

Hyung Kyung Choi: two hundred thousand dollars

Hyun Hee Choi : two hundred thousand dollars

As to the additional Westpac Loan on 22 October 2007 being six hundred thousand dollars (including overdraft facility) it is to be confirmed that each party is responsible as follows, Hee Jong Park (five hundred thousand dollars), Hyun Kyung Choi (fifty thousand dollars), Hyung Hea Choi (fifty thousand dollars). As to the additional loan (including overdraft) withdrawn from Westpac Bank accounts without consents of Hyun Kyung Choi and Hyung Hea Choi, Hee Jong Park is personally liable for the interest payment.

Up to December 2009 Hee Jong Park has received the interest payment payable by Hyun Kyung Choi and Hyun Hee Choi which amount calculated by adding the rent income from 67A and 67B.

The above facts are hereby confirmed by three people.

2008.5.28

Hee Jong Park: Hyun Kyung Choi: Hyung Hea Choi:

[23] I note that:

(a) Mr Park’s account of who was responsible for the interest payments on the further (October 2007) loan differs from the account given by Mrs Kim and by Miss Choi (which, as noted at [18] above, also differ between themselves);

(b) Mr Park admits making unauthorised withdrawals but does not specify their quantum.

[24] The following day (29 May 2008), however, Mr Park withdrew a further

$112,000 from the account without Mrs Kim’s knowledge. Those funds were paid into the trust account of Focus Law.

[25] For reasons which elude me, no further steps were taken by the plaintiffs until

2010.

[26] It appears that it was around the time the withdrawals were made that Mr Park became involved in purchasing the Helensville property. The documentary evidence before me showed that:

(a) On 12 December 2007, Mr Park signed a sale and purchase agreement for the Helensville property. The agreement states that the purchaser is “Hee Jong PARK and/or nominee”). I note, but do not comment further on, the fact that Mr Kim is recorded on the agreement as the real estate agent responsible for the sale;

(b) The purchase price for the Helensville property was $2,820,000; (c) The 10 per cent deposit was payable as follows:

(i) $200,000 on acceptance of the offer (12 December 2007); (ii) $82,000 on 15 January 2008;

(e) The solicitors acting for Mr Park in the transaction were Focus Law;

(f) On 3 June 2008, title to the Helensville property was transferred to

Mr Kim;

(g) On 6 June 2008, Mr Park and Mrs Lee placed a caveat over the Helensville property. Their caveatable interest is stated to be “as Beneficiaries under the Deed of Declaration of Trust dated 29 May

2008 for the property ... between Kyung Jae KIM (the registered

proprietor ....) as a Trustee and the Caveators as Beneficiaries”.

(h) A little over a year later (on 19 August 2009) the caveat referred to in (g) above was withdrawn. On the same day, Mr Park and another person named Joice Sook Che placed a caveat over the property. Their caveatable interest is said to be as “Beneficiaries under the Deed of Declaration of Trust dated 19 August 2009 for the property ... between Kyung Jae KIM (as the registered proprietor ....) as a Trustee and the Caveators as Beneficiaries”;

[27] At some point between 2008 and 2010, Mr Park and Mrs Lee left the country. Mr Park now lives in Korea and Mrs Lee lives in Australia. But it seems Mr Park continued to make interest payments under the arrangement until midway through

2010.

[28] In June 2010, Mrs Kim travelled to Korea and met with Mr Park. Her evidence was that during her conversation with him, he admitted that:

(a) He had deposited the $622,000 withdrawn into accounts held by

Mrs Lee without the consent of Mrs Kim or her daughters;

(b) Mrs Lee had paid $300,000 of this to a separate joint venture that

Mr Park was involved in with Mr Kim;

(d) Mr Park had a share in that property proportionate to his contribution to the purchase price; and

(e) He would not be returning to New Zealand.

[29] Having made contact with Mr Kim through her church, Mrs Kim met with

Mr Kim in August 2010. Her evidence was that he told her that:

(a) He had formed a joint venture with Mr Park in order to purchase the

Helensville property in June 2008;

(b) The property was purchased for approximately $2.8 million; (c) Mr Kim is the registered proprietor; and

(d) Mr Park contributed around $1 million in cash to the purchase price and retains around a one-third interest in the property.

[30] I am prepared to accept that Mrs Kim’s evidence about the statements made to her is admissible under s 34 of the Evidence Act 2006. But, in any event, it seems to me that both statements are borne out at least in general terms by the documentary evidence I have referred to above.

[31] On 25 August 2010, the Choi sisters placed a caveat over the Helensville property.

[32] Hyun Kyung Choi also gave evidence that while Mr Park had fulfilled his obligation to meet 69.7 per cent of the interest payments on the original loan and all of the interest payments on the later loan and overdraft until May 2010, he has since defaulted in the sum of $113,095.09 (as at March 2011). As I have said, however, the evidence about the extent of his liability for interest on the October 2007 loan and overdraft is conflicting. Miss Choi also said that she has been required to make further payments totalling $92,063 (up until July 2010) into the joint venture’s bank account “So that we didn’t default on interest payments”, but I must confess to being

at a loss to see how or why these payments were required over and above the amounts to which I have already referred.

[33] In the end, however, it is not necessary for me in this judgment to resolve these matters. That is because although the statement of claim contains a breach of contract cause of action claiming damages for these alleged defaults of Mr Park, Mr Steele ultimately did not ask me to make any orders in that respect. Rather, he commenced his submissions by saying that:

1. The Plaintiffs seek the following orders:

1.1 That the first defendant (Mr Park) be found to have breached his fiduciary duties towards his co joint venturers;

1.2 That damages be awarded against Mr Park and in favour of the Joint

Venture for the sum of $542,000;

1.3 An order giving the joint Venture a 14.16% interest in the Helensville property, being its share, its contribution to the purchase price; and

1.4 An order terminating the Joint Venture.

[34] In separate submissions, Mr Steele also made it clear that the plaintiffs also still seek judgment in the sum of $542,000 against Mrs Lee for dishonest assistance/knowing receipt.

[35] A claim against Mr Kim was not pursued.

Joint venture/breach of fiduciary duty/damages

[36] Based on the evidence above, I am satisfied that the plaintiffs and Mr Park entered into a joint venture, albeit an unsophisticated one. More particularly, I accept that the parties agreed jointly to buy the Trig Rd property and rent it out with a view to mutual profit from its eventual sale. They also agreed what their respective financial contributions, both present and future, would be to the venture. They respectively contributed funds on that basis. Mr Park also contributed his expertise as a real estate agent and former property developer.

[37] The fact that there was no written agreement does not preclude there being a joint venture.[1] In that respect I also accept Mr Steele’s submission that the absence of documentation at least arguably shows the significant level of trust and confidence the plaintiffs place in Mr Park.[2]

[38] Having accepted that there was a joint venture, the starting point is that the partners to such a venture usually owe each other fiduciary duties. A joint venture is often regarded as analogous to a partnership, with the parties to it necessarily owing each other duties of loyalty and good faith.[3] There is nothing to displace that presumption here. Rather, on the basis of the evidence that I heard, I accept that in the present case the parties’ relationship was characterised by trust, reliance and confidence. Indeed on the evidence here it appears that the plaintiffs placed a very

significant (and possibly foolish) amount of trust and confidence in Mr Park. They relied on his expertise, his fidelity to the venture and his commitment to meet his share of the outgoings.[4] Equally he relied on their initial cash contribution and their ongoing commitment to meet their share of the outgoings.

[39] Once that point is reached there can be no doubt that Mr Park deliberately breached his fiduciary duties by withdrawing joint venture funds without the plaintiffs’ consent and applying them other than for the benefit of the venture. On the evidence there is no obvious disparity between the quantum of the personal gain to Mr Park (about which the Court has only partial information) and the loss to the venture. Given that Mr Park no longer resides in the jurisdiction, an account of profits is not practicable and the plaintiffs are in any event entitled to elect the remedy they seek. Accordingly, in my view a claim for equitable compensation or damages is made out.

[40] As to the quantum of those damages, however, the position is more difficult. The plaintiffs seek compensation of the full $542,000 that Mr Park removed from the joint venture bank account. The difficulty with that, however, is that given that

_{Mr Park was himself a 50 per cent joint venturer and (insofar as can be ascertained}

from the evidence) half the money in the joint venture account was his. So I am unable to see how the plaintiffs can prove loss (and therefore any award of equitable damages) exceeding $271,000.

Tracing the misapplied funds to the Helensville property

[41] Because there is plainly little prospect of the plaintiffs recovering the equitable damages awarded from Mr Park, they also sought to trace $412,000 of the misapplied funds to the Helensville property and to be awarded a proportionate share of that property. Mr Steele relied in particular on the decisions of the House of

Lords in Foskett v McKeown[5], and of this Court in Herbert Equities Ltd v

Mamfredos.[6]

[42] In Mamfredos, the plaintiff had paid almost $700,000 in “application fees” connected with an overseas loan for which Mr Mamfredos was to act as a broker. No loan was arranged and, indeed, it appeared that Mr Mamfredos did nothing to advance the purposes for which the money was paid. Instead, he and his wife misapplied the money for their personal use, which included the purchase of a house. Courtney J ordered a constructive trust over the house proportionate to the contribution to the purchase price made by the plaintiff’s funds. In doing so at [32] she referred to and then applied the following passage from Lord Millett’s judgment

in Foskett:[7]

Where a trustee wrongfully uses trust money to provide part of the cost of acquiring an asset, the beneficiary is entitled at his option either to claim a proportionate share of the asset or to enforce a lien upon it to secure his personal claim against the trustee for the amount of the misapplied money. It does not matter whether the trustee mixed the trust money with his own in a single fund before using it to acquire the asset, or made separate payments (whether simultaneously or sequentially) out of the differently owned funds to acquire a single asset.

... There is a mixed substitution (with the results already described) whenever the claimant’s property has contributed in part only towards the acquisition of the new asset. It is not necessary for the claimant to show in addition that his property has contributed to any increase in the value of the new asset. This is because, as I have already pointed out, this branch of the

law is concerned with vindicating rights of property and not with reversing unjust enrichment.

[43] Applying those principles to the case before her Courtney J:

(a) declared that the plaintiff had a 28 per cent interest in the value of the property; and

(b) ordered that the title to the property was to record that the plaintiff had a 28 per cent vested interest in the property as tenant in common with the registered proprietor.

[44] As one commentator has subsequently pointed out, in Mamfredos the Court did not identify the plaintiff’s pre-existing property right (i.e. the basis upon which the plaintiff had retained equitable title to the money it had freely paid over to Mr Mamfredos) that justified the creation of the trust.[8] In the present case, however, there is, I think, no issue in that respect. The money misapplied by Mr Park belonged to the joint venture; it had not been given directly to him for any purpose.

The plaintiffs therefore clearly retained an interest in the sum of money they deposited in the joint venture bank account.

[45] Similarly, on the basis of my findings above, there can be no doubt that the evidence establishes that the plaintiffs are entitled to trace their interest in these funds into the Helensville property. Mr Park clearly misappropriated the funds taken in breach of his fiduciary duty in applying joint venture money to the purchase of a portion of the Helensville property. Again, however, it seems to me that the portion which represents the plaintiffs’ share cannot exceed the $271,000. That I have said constitutes their own (as opposed to the joint venture’s) loss.

[46] In light of:

(a) Mr Kim’s acceptance that Mr Park contributed significantly to the purchase price of the Helensville property (a fact which appears further to be reflected in the caveat Mr Park placed on the title); and

(b) Mr Park’s admission that he misappropriated $300,000 of the joint venture money and used it to fund the Helensville venture; and

(c) the rule in Re Oatway;[9] and

(d) the timing and amounts of certain of the withdrawals from the joint venture bank account and (in particular) the payment of the deposit on the Helensville property –

I am prepared to find that there is a constructive trust over the Helensville property that is proportionate to a contribution of $271,000 made by the plaintiffs to the purchase price. Based on the purchase price of $2,820,000 that yields a beneficial interest in the property for the plaintiffs of approximately 10 per cent. That interest is to be perfected by way of an order under s 99 of the Land Transfer Act 1952 vesting a 10 per cent share in the property to the plaintiffs as tenants in common with the registered proprietor, Mr Kim.

[47] I record that Mr Steele accepted that any enforcement steps taken by the plaintiffs consequent on this judgment will not involve any “double dipping” as between the damages award and the interest in the Helensville property. Leave is reserved to apply for further orders in the event that any difficulties arise in that respect.

Declaration winding up Joint Venture

[48] In support of their submission that the joint venture be terminated, the plaintiffs rely on Dickie v Torbay Pharmacy (1986) Ltd in which Hammond J said:[10]

... as to the remedy sought, it seems to me unquestionable that the relationship – as such – can now be treated as terminated by the plaintiffs: and certainly should be declared if necessary to be so terminated by the Court.

If necessary, counsel also relied on the Court’s inherent equitable jurisdiction to dissolve a partnership.

[49] In the circumstances set out above, I am prepared to make the declaration sought. In accordance with Mr Steele’s proposed approach, he is to file a further memorandum in which he sets out a mechanism whereby the joint venturers’ interests may now fairly and equitably be disentangled.

Claim against Mrs Lee - dishonest assistance/knowing receipt

[50] The plaintiffs said that the evidence establishes that Mrs Lee knew or must have known of her husband’s defalcation. They submitted that, although it was Mr Park who played the prominent role in dealings with the plaintiffs, Mrs Lee was also concerned and an active participant. In particular, they said:

When Mrs Kim was first approached by Mr Park about the joint venture proposal in order to go through the details, he was accompanied by Mrs Lee. Mrs Lee may be taken therefore to have a thorough understanding of the proposal and the role the parties would play in it. See para 10 of the Kim brief.

In connection with the plaintiff, Mrs Kim is the underlying joint venture with Mr Park, whereas the second and third plaintiff were simply assisting her. Likewise, Mrs Lee was not an actual venturer, but she too assisted in Mr Park’s dealings with the plaintiffs and the finances of the venture, presumably for her and her husband’s mutual benefit.

Mrs Lee was kept abreast of the joint venture from Mrs Kim. ...

Mrs Lee’s bank account was Mr Park’s key account for holding monies relating to the joint venture, outside that is of the joint venture accounts themselves. Mrs Lee’s account was used for monies authorised to be transferred into that account ... along with monies that were transferred there without the plaintiffs’ knowledge or consent ...

Sometimes Mrs Lee paid interest from her bank account to the loans and overdraft on the joint venture accounts....

Mrs Lee joined with Mr Kim in placing a caveat on the Helensville property

... the purchase of which was funded in part by monies taken from the

plaintiffs’ joint venture account funnelled through Mrs Lee’s account.

(evidentiary references omitted)

[51] I do not propose to set out the legal requirements for knowing receipt and dishonest assistance. That is because fundamental to both is some form of dishonesty on Mrs Lee’s part. The contentions that Mrs Lee either dishonestly assisted Mr Park in his defalcations or knowingly received the misappropriated funds necessarily involve allegations of conduct that is essentially criminal in nature. While I accept that the civil standard of proof continues to apply, it is also clear that in such a case the Court would be justified in requiring strong evidence in order to

find that that standard is met.[11]

[52] In my view, the evidence in the present case is simply not strong enough to satisfy me (on the balance of probabilities) that Mrs Lee knew of or was wilfully blind to her husband’s defaults or that she assisted him with them.[12] More specifically, the evidence that she was some kind of “de facto” joint venture is far from compelling. I do not accept that it can fairly be said (on the evidence) that her position in relation to Mr Park was analogous to that of Mrs Kim in relation to her daughters. I do not consider that there was any meaningful business interaction between Mrs Lee and the plaintiffs.

[53] Moreover, I know nothing of the kind of relationship that existed between Mr Park and his wife. I do not know whether he involved her at all in his business affairs. I do not know whether she actively managed her own financial affairs. There is no information before me about the operation of Mrs Lee’s bank account, such as whether Mr Park had signing authority over the account, or otherwise had access to and control over it on-line. Both those options seem reasonably possible. The only evidence for the submission that “Mrs Lee paid interest” from her account to the joint venture account is that a payment of that kind was made. There is no evidence whatsoever that Mrs Lee knew of, or authorised, it. And signing authority

_{is not, in any event, required to make deposits.}

[54] The most that I consider can fairly be said is that some of the joint venture money was deposited into Mrs Lee’s account. I am not prepared to draw an inference from that, that:

(a) she knew of the deposits; or

(b) If she did know, she knew, or should have known of their origins.

[55] The fact that Mrs Lee appears to have subsequently separated from Mr Park (and is now living in Australia) only serves to underscore my doubts in the above respects.

[56] The claims against Mrs Lee therefore fail.

Result

[57] For the reasons I have given I find that Mr Park is liable to pay the plaintiffs equitable damages in the amount of $271,000 and give judgment for that amount accordingly.

[58] In relation to the Helensville property:

(a) I make a declaration that the plaintiffs have an interest in the property known as 177 Rautawhiri Rd, Helensville (Lot 1 DP 158495, CT NA95A/468) to the extent of 10 per cent of the value of the property;

(b) I make an order that the plaintiffs jointly have a vested interest in the property referred to at (a) above as to 9.6 per cent as tenants in common with the registered proprietor and on registration of that interest the title is to record the registered proprietors as being Kyung Jae Kim as to a 90/100 share and Bok Yeon Kim, Hyun Hea Choi and Hyun Kyung Choi jointly as to a 10/100 share.

[59] The claims against the second defendant fail and are dismissed.

[60] Leave is reserved to Mr Steele to file a further memorandum as to interest

_{and costs which are payable on a 2B basis.}

Rebecca Ellis J

---

[1] _{Chirnside v Fay [2006] NZSC 68, [2007] 1 NZLR 433at [70].}
[2] _{At [90].}
[3] _{At [14], [72] and [74].}
[4] At [80].
[5] _{Foskett v McKeown [2001] 1 AC 102, [2000] 2 WLR 1299, [2000] 3 All ER 97 (HL).}
[6] _{Herbert Equities Ltd v Mamfredos HC Auckland CIV-2005-404-3679, 18 September 2009.}
[7] Foskett [2000] 3 All ER at 123-124.

[8] Jessica Palmer Attempting Clarification of Constructive Trusts [2010] 24 NZULR 113-135.

[9] _{Re Oatway [1903] 2 Ch 356.}

[10] Dickie v Torbay Pharmacy (1986) Ltd [1995] 3 NZLR 429 (HC) at 440.

[11] _{Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1.}

[12] Royal Brunei Airlines Sdn Bhd v Tan [1995] 3 All ER 97 (PC); Westpac Banking Corporation v Savin [1985] 2 NZLR 41; (1986) 1 NZBLC 102,345; [1986] 3 NZCLC 99,713 (CA); Westpac New Zealand Ltd v Map & Associates Ltd [2011] 3 NZLR 75.