IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2011-404-001584 [2013] NZHC 1857

BETWEEN	ANATOLY MOGILIN First Plaintiff

MARFA (MASHA) MOGILIN Second Plaintiff

AND	NAM GEUN JO First Defendant

AND	MARTINA JHO Second Defendant
Hearing:	24 July 2013 (by way of telephone conference) Appearances:	E Orlov for Plaintiffs
M J Wallace for Defendants

Judgment:	25 July 2013

INTERIM JUDGMENT OF PANCKHURST J (RE FURTHER DISCOVERY)

Introduction

[1]       Counsel  for  the  plaintiffs  has  filed  an  application  seeking  ‘unless  and contempt orders’.  The orders sought concern the attendance of the first defendant, Nam Geun Jo, at trial; the ownership and location of the vessel Volante; and the provision of information concerning the sale of two properties.

[2]       It is convenience to deal with matters under these heads.

Attendance of the second defendant

[3]       Mr  Jo  is  presently  in  Korea.    He  has  provided  a  witness  statement  in anticipation of the trial proceeding on 12 August 2013.   Mr Orlov is anxious to

ANATOLY MOGILIN v NAM GEUN JO [2013] NZHC 1857 [25 July 2013]

ensure  that  Mr  Jo  attends  the  hearing  and,   in  particular,  is   available  for cross-examination.  Fraudulent conduct is alleged.  It appears that Mr Jo is the only person able to respond to the relevant allegations; since the second defendant, his wife, although resident in New Zealand speaks little English and is said to have no or little knowledge of the facts of the case.

[4]       Mr Orlov sought  an unless order that Mr Jo apply to  Immigration New Zealand for a limited purpose visa within five days, or his defence would be struck out and his witness statement not read.  Mr Wallace countered that this application was  misconceived.     He  acknowledged  that  Mr  Jo  required  a  visa  to  enter New Zealand, he having previously been deported.   Counsel awaits instructions, including  whether  Mr  Jo  seeks  to  give  evidence  by  video  link  from  Korea. Mr Wallace submitted that the terms of the unless order were  inappropriate.   A statement  of  defence  has  been  filed.    Service  of  a  witness  statement  does  not guarantee that a defendant will attend the trial.  Nor does it confirm that the defence will elect to call evidence.  Hence the order sought was premature.

[5]       I agree, subject to the following observations.   Section 83 of the Evidence Act 2006 prescribes the ordinary way of giving evidence, namely in person in the courtroom.   However, ss 102 to 105 provide for alternative methods of giving evidence, if appropriate directions are sought and obtained.   For the avoidance of doubt I confirm that this is a proceeding where r 9.51 applies, that is it involves disputed questions of fact so that Mr Jo will need to be examined orally should he elect to give evidence.

The Volante

[6]       On 7 June 2013 Fogarty J made an interim order that the defendants disclose the whereabouts of the yacht Volante, whether it was registered and in whose name it was registered.  Subsequently, Mr Wallace, on the basis of his instructions, provided a  document  entitled  ‘interim  registration  for  nationality  of  vessel’  dated  10
November 2011 which appears to evidence Mr Jo’s intention to register the vessel in his name at his Korean address.  However, an attached communication recorded “a group of six persons own the yacht, but ... my client is only able to provide the name

of one of them being Kwang Ho Song”.   In  addition, counsel advised that his instructions were the Volante was sold in Korea but remained in Picton.

[7]       The order was made by Fogarty J in response to the plaintiffs seeking a freezing order, given their concern that Mr Jo had left the country and was in the process of removing his assets.  Subsequently I was asked to order the arrest of the Volante, but I declined to do so given jurisdictional concerns.  Mr Orlov now seeks an order that the defendants supply details of the exact location of the Volante, or their defence will be struck out.

[8]       After hearing submissions I am satisfied that the appropriate course is to order that the defendants within five working days provide by affidavit details of the location of the Volante; documentation to verify the sale to Mr Song and others; and details of the terms of sale including the purchase price and whether payment has been made in full or not.

[9]       The plaintiffs’ application also sought the imposition of fines for contempt of court, namely $30,000 for non-compliance with Fogarty J’s discovery order and ‘a further $100,000 being the purchase price of Volante’.   In my view there is no present basis to impose fines, in particular because the defendants were required to disclose the whereabouts of the Volante and whether, and in whose name it was registered.    These  bare  details  were  provided,  albeit  in  a  non-informative  way. Hence, I make the further order for the provision of affidavit evidence.

Two properties

[10]     The second defendant, Mrs Jho, was the registered owner of properties at

8 and 21 Reserve Close.  These were sold to a company Friday Investments Limited. Again, the plaintiffs consider that these sales evidence a shedding of assets so that the  defendants  are  rendered  judgment  proof.    I accept  there  is  a  basis  for  this concern, and that proper evidence of the sales is required.

[11]     To that end, I make an order that within five working days the defendants are to provide affidavit evidence confirming the details of the sale, including copies of

the agreements  for  sale  and  purchase  and  the  present  whereabouts  of  the sales proceeds.

[12]     For completeness, I note that a further property at 1543 Springs Road, of which Mrs Jho is the registered owner, is at risk of a mortgagee sale.  A mortgage from SBS has expired, and documentation provided by Mr Wallace confirms that the bank intends to pursue its rights.   Mr Orlov signalled an intention to amend the plaintiffs’ claim,  and  perhaps  join  SBS,  for  which  leave  pursuant  to  r  7.18  is required.   I note this possible development and record that leave is likely to be appropriate, given the recency of these developments.

Solicitors:
E Orlov, Auckland
M J Wallace, Christchurch