[2006] NSWSC 1211
Kim v Lee & Ors
Evidence of earlier unsuccessful attempts to settle struck out.
Catchwords
EVIDENCE - Admissibility and Relevancy - Declaration sought that 3rd defendant as agent for 1st and 3rd to 32nd defendants settled District Court defamation actions - Affidavit of plaintiff contained details of earlier unsuccessful attempt to settle the District Court proceedings - Whether admissible in absence of any evidence that person had any authority to negotiate on behalf of defendants - Whether admissible to rebut defence claim that they never offered to pay money to plaintiff
Judgment
- [1]
The affidavit of Chung-Yup Kim, the plaintiff, contains in par 13 to par 16 details of a conversation that Young Kil Choi had with the plaintiff. The tender is based upon two grounds. First, the authority of Mr Choi to speak on behalf of the 32 defendants. There is nothing in the passages in par 13 to par 16 that suggests Mr Choi had any authority to negotiate on behalf of the defendants.
- [2]
The second basis of tender is that he spoke in terms of the payment to the plaintiff of $200,000.00. That there was an agreement to pay is denied by the defendants. They say they never offered to pay $200,000.00.
- [3]
The problem for Mr Kim is that the negotiations by Mr Choi came to nought as is recorded in the affidavit of the Mr Kim at par 16. Mr Choi said that he had spent a lot of time and effort as well as many phone calls and he was disappointed that no reconciliation had been achieved. Mr Kim responded "I am sorry. Although there is no successful result you worked so hard. Thank you."
- [4]
In my view, the evidence is irrelevant to the two subsequent agreements upon which Mr Kim relies in his pleading. Mr Choi was not party to the negotiations of either of those later agreements. The plaintiff has failed to establish any relevance of the testimony to the issues that I have to determine.
- [5]
I therefore strike out par 13 to par 16 of Mr Kim's affidavit.