Cho v Park

[2016] NSWSC 871

Supreme Court

New South Wales

Medium Neutral Citation:	Cho v Park [2016] NSWSC 871
Hearing dates:	2 June 2016
Date of orders:	02 June 2016
Decision date:	02 June 2016
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1) Under section 140 Civil Procedure Act 2005 (NSW) order that proceedings number 2015/374086 in the Local Court at Sydney be transfer to this court. (2)    Local Court pleadings stand as pleadings in the Supreme Court. (3)   Proceedings in this court transferred to the Equity Division. (4)    List the proceedings for directions before the Corporations List Registrar on Monday 20 June 2016 at 9am. (5)   Costs of the summons, the transfer, are costs in the cause.
Catchwords:	PROCEDURE– transfer of primary and related proceedings from local court to supreme court– where cross-claim is in respect of same facts as primary proceedings– where cross-claim can only be brought in a superior court and cannot be severed from primary proceedings
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 140 Corporations Act 2001 (Cth), Pt 2F
Category:	Consequential orders (other than Costs)
Parties:	Jin Pyo Cho (Plaintiff) In Bo Park (Defendant)
Representation:	Counsel: T Boyle (Plaintiff)    J Young (Defendant)   Solicitors: Clamenz Lawyers (Plaintiff)    Kim & Associates (Defendant)
File Number(s):	2016/116839

Ex Tempore Judgment- revised

1. By summons filed 15 April 2016 the plaintiff in this court seeks orders under s 140 of the Civil Procedure Act 2005 (NSW) transferring Local Court proceedings to this court.

2. Section 140 subs (4) provides:

“The proceedings in the Local Court are not to be transferred to a higher court under this section unless the higher court is satisfied that there is sufficient reason for hearing the proceedings in the higher court.”

3. Three affidavits were filed in support of the application by the plaintiff’s solicitor, Mr Dev Menon, affirmed on the 14th day of April, 11 May and 1 June 2016.

4. In presenting the argument, Mr Boyle of counsel relied principally upon the affidavit of 1 June 2016 because it annexes a cross-claim which has been filed in the Local Court in general terms.

5. From the evidence before me the matter in the Local Court relates to a dispute between the plaintiff, Mr Park, and the defendant, Mr Cho (who also is the plaintiff here) arising out of a series of business arrangements they entered into between about 2011 and August 2015.

6. Principally and unsurprisingly the substratum of the dispute is largely about who owes money to whom and how much.

7. The statement of cross-claim has been drafted with some care to seek relief of a type that, generally speaking, is not available in the Local Court, available only to a limited extent in the District Court but is generally available in this court in the Equity Division.

8. By and large I am of the view that most of what is sought by way of declaration and rectification is really in the category of a conceit and that the real remedy sought in respect of such matters is a monetary sum, whether it is called damages, contribution or restitution. Those latter remedies are available within the usual monetary jurisdiction of a Local Court. When one looks at the amounts involved and also the nature of the powers normally exercised by the Local Court, none of those matters would seem to engage the power to transfer the proceedings to this court.

9. In a careful argument, ably presented, Mr Boyle of counsel relied most heavily upon the relief sought in Pt 2F of the Corporations Act 2001 (Cth) relating to oppressive conduct by Mr Park and his wife, Ms Sin, in the affairs of a company in which they and Mr Cho were involved. That company is the Kanzi Club Pty Ltd.

10. Mr Boyle took me through the relevant provisions of the Corporations Act and, with respect, Mr Young of learned counsel agrees with his analysis. An oppression suit can only be brought in a superior court, including this court. It is unnecessary for me to refer to the various provisions for the purpose of this judgment that Mr Boyle properly drew to my attention.

11. Mr Young accepts this but argued that really the remedies sought in that regard are severable from the simple, or relatively simple, commercial dispute the subject of his client’s claim in the Local Court. He also said that the cross-claim so far as it refers to commercial leases in respect of different premises insofar as Mr Boyle’s client say it also relates to the real fact of the agreement are in the same category and may also be covered by the agreement both parties accept was made on 20th August 2015. There is much to be said for that argument.

12. However, Mr Boyle has persuaded me that his client’s case in relation to the real effect of the agreement of 20 August 2015 is that it was designed not only to reconcile the financial affairs of Mr Park and Mr Cho but also to bring to an end what Mr Cho said was the oppression of the conduct of the affairs of the Kanzi Club Pty Ltd by Mr Park and Ms Sin. This consideration makes it undesirable to sever the various claims.

13. Although the amounts involved in the dispute are not great, with regard to that, as required by the Rules, the cross-claim has been verified by Mr Cho and I am prepared to accept therefore that there is a sufficient basis for his version of events to give rise to a real controversy to be resolved in the oppression suit.

14. Given that there is a common substratum of facts underpinning the dispute about the August 2015 agreement and the oppression suit, and bearing in mind that the August 2015 agreement founds a substantial part of the plaintiff’s case in the Local Court, I am persuaded, I confess by only a narrow margin, that there is sufficient reason for transferring the Local Court proceedings in this Court.

15. My orders are:

1. Under section 140 Civil Procedure Act 2005 (NSW) order that proceedings number 2015/374086 in the Local Court at Sydney be transfer to this court.

2. Local Court pleadings stand as pleadings in the Supreme Court.

3. Proceedings in this court transferred to the Equity Division.

4. List the proceedings for directions before the Corporations List Registrar on Monday 20 June 2016 at 9am.

5. Costs of the summons, the transfer, are costs in the cause.

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Decision last updated: 24 June 2016