Joo v Yoo - [2016] NSWCA 172

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Joo v Yoo [2016] NSWCA 172
Hearing dates: 12 July 2016
Date of orders: 12 July 2016
Decision date: 25 July 2016
Before: Ward JA; Payne JA; Sackville AJA
Decision:
(1) Leave to appeal refused.
(2) The applicants pay the respondent’s costs.
(3) Unless the applicants file written submissions with the Associate to Payne JA before 4 pm on 27 July 2016, the sum of $30,000 together with any interest thereon paid into Court as security for costs of the appeal by the applicants pursuant to order 2 made by Gleeson JA on 16 June 2016 be released forthwith to the respondent after 4 pm on 28 July 2016.

Catchwords: APPEAL – application for leave to appeal – primary judge found no equitable transfer of equitable interest in shares valued at approximately USD 12,000 – whether leave to appeal should be granted in respect of property not having a value of $100,000 or more pursuant to Supreme Court Act 1970 (NSW) s 101(2)(r)(ii)
Legislation Cited: Civil Procedure Act 2005 (NSW), s 60
Corporations Act 2001 (Cth), Part 7.11
Supreme Court Act 1970 (NSW), s 101
Cases Cited: Anning v Anning (1907) 4 CLR 1049
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69
Comptroller of Stamps (Vic) v Howard-Smith (1936) 54 CLR 614
Category: Principal judgment
Parties:
Ok Ja Joo (First Applicant)
Jae Joo Kim (Second Applicant)
Wealth Wisdom Investments Limited (Third Applicant)
Il Nam Yoo (Respondent)
Representation:
Counsel:
M Neil QC & S O’Brien (Applicants)
J R Young (Respondent)
Solicitors:
Alpha Lawyers (Applicants)
Kim & Associates (Respondent)

File Number(s): 2016/00178301
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division – Corporations List

Citation:

[2016] NSWSC 670

Date of Decision:

26 May 2016

Before:

Black J

File Number(s):

2014/186025

Judgment

THE COURT: On 12 July 2016 this Court heard oral argument in this matter. At the conclusion of that argument the Court made orders that leave to appeal be refused with costs. The following are the reasons of the Court for making those orders.

Brief facts

Although the hearing of the matter took place over several days, the relevant facts are in a relatively narrow compass.
In April 2012 (according to the applicants) or May 2012 (according to the respondent) a Mr Choi approached the respondent, Mr Yoo, with a business proposition. Mr Choi had been Mr Yoo’s neighbour and was at that time associated with a Korean company, Topfield Co Ltd (Topfield).
At that time an Australian company, Toppro Pty Ltd (Toppro), was party to a distribution agreement with Topfield. Under that agreement Toppro was the distributor in Australia of electronic goods manufactured by Topfield.
Mr Choi said that he was aware of an opportunity for Mr Yoo to make a profit in the short term on the sale of shares.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Joo v Yoo

Details

AGLC: Joo v Yoo [2016] NSWCA 172
Case: [2016] NSWCA 172
Decision Date: 25 July 2016

CaseChat Overview and Summary

The appeal concerned an application for leave to appeal a decision of a primary judge who found that no equitable transfer of an equitable interest in shares, valued at approximately USD 12,000, had occurred. The central question before the Court of Appeal was whether leave to appeal should be granted in circumstances where the property in dispute did not have a value of $100,000 or more, as stipulated by section 101(2)(r)(ii) of the Supreme Court Act 1970 (NSW).

The Court of Appeal was required to determine whether the appeal fell within the exceptions to the general rule that leave to appeal is not granted for matters involving property valued below $100,000. Specifically, the court had to consider if any other grounds existed to permit an appeal in this instance, notwithstanding the low value of the shares.

The Court refused leave to appeal. The reasoning for this refusal was not detailed in the provided text, but the outcome indicates that the applicants failed to satisfy the criteria for granting leave under the relevant legislative provisions. The applicants were ordered to pay the respondent's costs of the application. Furthermore, the court made specific orders regarding the release of security for costs, which was to be paid into court by the applicants, unless they filed written submissions by a specified date.

Orders

Orders of the court

(1) Leave to appeal refused.

(2) The applicants pay the respondent’s costs.

(3) Unless the applicants file written submissions with the Associate to Payne JA before 4 pm on 27 July 2016, the sum of $30,000 together with any interest thereon paid into Court as security for costs of the appeal by the applicants pursuant to order 2 made by Gleeson JA on 16 June 2016 be released forthwith to the respondent after 4 pm on 28 July 2016.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Joo v Yoo [2016] NSWCA 172
Hearing dates:	12 July 2016
Date of orders:	12 July 2016
Decision date:	25 July 2016
Before:	Ward JA; Payne JA; Sackville AJA
Decision:	(1) Leave to appeal refused. (2) The applicants pay the respondent’s costs. (3) Unless the applicants file written submissions with the Associate to Payne JA before 4 pm on 27 July 2016, the sum of $30,000 together with any interest thereon paid into Court as security for costs of the appeal by the applicants pursuant to order 2 made by Gleeson JA on 16 June 2016 be released forthwith to the respondent after 4 pm on 28 July 2016.
Catchwords:	APPEAL – application for leave to appeal – primary judge found no equitable transfer of equitable interest in shares valued at approximately USD 12,000 – whether leave to appeal should be granted in respect of property not having a value of $100,000 or more pursuant to Supreme Court Act 1970 (NSW) s 101(2)(r)(ii)
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 60 Corporations Act 2001 (Cth), Part 7.11 Supreme Court Act 1970 (NSW), s 101
Cases Cited:	Anning v Anning (1907) 4 CLR 1049 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 Comptroller of Stamps (Vic) v Howard-Smith (1936) 54 CLR 614
Category:	Principal judgment
Parties:	Ok Ja Joo (First Applicant) Jae Joo Kim (Second Applicant) Wealth Wisdom Investments Limited (Third Applicant) Il Nam Yoo (Respondent)
Representation:	Counsel: M Neil QC & S O’Brien (Applicants) J R Young (Respondent) Solicitors: Alpha Lawyers (Applicants) Kim & Associates (Respondent)
File Number(s):	2016/00178301
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division – Corporations List Citation: [2016] NSWSC 670 Date of Decision: 26 May 2016 Before: Black J File Number(s): 2014/186025