Dunn v Kim

[2020] NSWDC 887

District Court

New South Wales

Medium Neutral Citation:

Dunn v Kim [2020] NSWDC 887

Hearing dates:

4 September 2020

Date of orders:

4 September 2020

Decision date:

04 September 2020

Jurisdiction:

Civil

Before:

P Taylor SC DCJ

Decision:

(1) Strike out the Amended Statement of Claim pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005.

(2) Stay these proceedings in respect of any claim on the pool contracts until Discover the Earth Pty Ltd (ACN 134 345 654) is properly joined to the proceedings.

(3) Grant leave to the defendants to apply to have the proceedings dismissed if no further application to file a Further Amended Statement of Claim is made before 4 November 2020.

(4) The plaintiff pay the costs of the defendants' Amended Notice of Motion.

(5) Any proposed Further Amended Statement of Claim be served upon the defendants by 28 October 20/20.

(6) List for directions on Monday, 9 November 2020 at 9.30am before the Judicial Registrar.

Catchwords:

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings

CIVIL PROCEDURE — Pleadings — Striking out

Cases Cited:

Uniform Civil Procedure Rules 2005, r 6.20, r 13.4, r 14.28

Texts Cited:

Richie’s Uniform Civil Procedure NSW

Category:

Procedural rulings

Parties:

Marty Heath Dunn (plaintiff)
Mee Youn Kim (first defendant)
Edwin Hong (second defendant)

Representation:

Counsel:
Mr J Horowitz (defendants)

Solicitors:
Contracts Specialist (defendants)

File Number(s):

2020/104103

Publication restriction:

None

Judgment

1. The defendants, Mee Youn Kim and Edwin Hong, seek to have the proceedings dismissed under r 13.4 or struck out under r 14.28 of the Uniform Civil Procedure Rules 2005.

2. The dispute arises out of two building contracts concerning a swimming pool. In those two contracts, the customer is named as “Mr Edwin Hong”, and the builder is named as “Discover The Earth pty ltd and Mr Marty Dunn – Lic. 264442C”. The contract contemplates payments would be made to Discover The Earth. The contracts were dated in early 2017. The first involved the completion of the pool “[r]eady to begin concrete stage” involving “Form, Steel, Plumbing, Electrical work, plus materials”, and was for a sum of $18,950 exclusive of GST. The second contract involves the “[f]inal concreting of pool. Supply concrete, shot crete team and complete concrete pool”. The job price was $8,950, exclusive of GST.

3. The pool was not completed harmoniously between the builder and Mr Hong. Payments in excess of $8,800 were paid to Discover The Earth, but a subsequent invoice for $5,056 was not paid. Thereafter, it appears the pool was completed by someone other than the builder.

4. Mr Dunn’s amended statement of claim pleads that he is a swimming pool builder and asserts that Ms Kim and Mr Hong were the customers and that Mr Dunn “built the main structure of the Defendant’s 16m long concrete pool, with waterfalls over its walls, at both ends and along one side of the pool”. On this basis, the plaintiff then asserts that…