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 he is “claiming $277,523.90”. The particulars of that sum refer to the unpaid invoice of $5,056 and, in addition, $5,823.60 for materials and equipment, $245,187.60 for wages and $9,580 for equipment hire and usage. In submissions, Mr Dunn indicated that the defendants had used his equipment and that that fee was based on a hire charge for that equipment.

5. Mr Dunn is self-represented. He relies on a document called an affidavit, which has an execution clause in accordance with an affidavit, but it is not in the usual form of affidavits. He makes a number of allegations, including forgery, fraud, illegality, larceny and perjury. Those allegations are not currently included in the amended statement of claim.

6. A number of other problems emerged. Mr Dunn accepts that in April 2019, the Discover The Earth company was deregistered and that on 24 April 2019, he commenced proceedings involving substantially the same issues against Mr Hong and Mr Hong’s sister and claimed the sum of $50,716.90. On 18 June 2019 Mr Dunn commenced proceedings against Mr Hong and Ms Kim for $226,807. On 25 June 2019 both of those proceedings were discontinued by consent.

7. On 3 April 2020 Mr Dunn commenced these proceedings in the Gosford Registry of the Court, but the proceedings have since been transferred to Sydney. On 3 August 2020 the Court granted leave to Mr Dunn to file the amended statement of claim that had earlier been filed on 29 May 2020. On that same day, the Court ordered that any further amended statement of claim be filed by 14 August 2020. On 3 August 2020 the defendants filed and served a notice to plead facts, and at the same time, the amended notice of motion seeking dismissal and strike out. This brief history does not give the Court confidence that the plaintiff’s claim shall be pleaded properly in accordance with the rules.

8. The two contracts upon which Mr Dunn relies identify only Mr Edwin Hong as the customer, as he is called in the anglicised version of his name. He is also known as Min Yong Hong, which is the form of his signature on the agreement. There is no explanation for why Ms Kim is a party to the proceedings, although Mr Dunn asserts in court today that she may be either the wife or cousin of Mr Hong, and the registered proprietor of the property where the pool was to be built. Those facts are not pleaded in the amended statement of claim.

9. Conversely, the company, Discover The Earth, is not joined to the proceedings as a plaintiff. Mr Dunn has no capacity presently to join the deregistered company, although it may be that the company is a necessary party because it may have a joint entitlement to any relief under the two contracts.

10. Uniform Civil Procedure Rule 6.20 provides that:

“6.20 Proceedings affecting persons having joint entitlement

(1)  Unless the court orders otherwise, all persons jointly entitled to the same relief must be joined as parties in any claim for that relief that is made by any one or more of them.

(2)  Unless the court orders otherwise, any other such person is to be joined—

(a)  as a plaintiff, if he or she consents to being a plaintiff, or

(b)  as a defendant, if he or she does not consent to being a plaintiff.”

11. And in the commentary in Richie’s Uniform Civil Procedure NSW at paragraph [6.20.15] headed, “Non‑Joinder”, it indicates that:

“Notwithstanding the provisions of r 6.23 [which provides that proceedings are not defeated merely by the non-joinder of any persons or party to the proceedings], if a plaintiff persists in the proceedings without joining all necessary parties, the court may dismiss the proceedings”.

12. Thus, if the claim relies only upon the contracts, as it appears, then Discover The Earth may need to be a party and perhaps Ms Kim should not be.

13. On the other hand, there may be other bases to join Ms Kim, or indeed, there may be other causes of action available to Mr Dunn that do not involve Discover The Earth. But until they are pleaded, the statement of claim is defective.

14. Further, there is no relevant causal connection explained in the pleading between the $245,000 approximately of wages said to be payable to Mr Dunn, and the contract alleged. In those circumstances, the proceedings cannot continue on the current pleading.

15. The question then arises as to whether the proceedings should be dismissed without any liberty to proceed by a new pleading, or alternatively, that some further indulgence be granted to Mr Dunn.

16. On the one hand, Mr Dunn has twice before commenced and discontinued proceedings involving this matter, and has twice, in these proceedings, pleaded his claim unsuccessfully. Those matters indicate that a further indulgence might be of no utility.

17. On the other hand, Mr Dunn asserts facts about his indigent circumstances, his mental health and the circumstance that he is self‑represented. The claim, if it is to proceed, would have some complications. I also take into account that, a month ago, the defendants filed and served a notice to plead facts, which contemplated that Mr Dunn could re-plead the matter in accordance with the rules, at least until a few days ago.

18. In all the circumstances, I think that Mr Dunn should not be shut out from making a claim at this stage, although it seems to me that this must surely be the last opportunity that is extended to him to plead a legally proper claim, if he is to do so against the defendants. However, that claim seems so far to rely on the contracts, and I do not propose to allow Mr Dunn to plead a claim based on the contracts without the joinder of the Discover The Earth company, which will necessitate that company being re‑registered. I do not propose to allow Mr Dunn to maintain a claim against Ms Kim in respect of the contract without pleading facts showing how she is in one way or another, a party to that contract.

19. The orders of the Court are:

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 2020.

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

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Decision last updated: 21 April 2021