KI Bun Kwon v Kun Ii Cha - [2015] HCASL 165

KI BUN KWON
v
KUN II CHA
[2015] HCASL 165
S98/2015

In May 2013, the applicant applied for an order extending a caveat she had lodged over a property in Bankstown, Sydney. That application was refused by the Supreme Court of New South Wales (Kunc J) on the basis that the applicant had not disclosed a caveatable interest in the property.
The applicant then filed a statement of claim in the Supreme Court on 12 August 2013 seeking relief in matters concerning the Bankstown property and money she claimed to have lent the respondent between 1979 and 1982. On 10 September 2013, the Supreme Court (White J) summarily dismissed the proceedings on the basis that the statement of claim disclosed no reasonable cause of action. His Honour considered that it was not in the interests of justice to give the applicant leave to file a fresh statement of claim and the respondent should not be put to any further expense or vexation by reason of the proceedings.
On 19 August 2014, White J dismissed the applicant's application for an order for the extension of a caveat in respect of the Bankstown property. White J noted that the applicant sought to reagitate the claims made in the proceedings dismissed on 10 September 2013. His Honour held that the applicant's materials did not disclose any caveatable interest and that there was no reason to give the applicant leave to lodge a further caveat claiming in substance the same interest as was the subject of the caveat that had lapsed. White J also refused leave to issue a subpoena for the inspection of a document held by the respondent's solicitor.
On 22 April 2015, the Court of Appeal of the Supreme Court of New South Wales (Ward JA, with whom Leeming JA agreed) refused leave to appeal from the decisions of White J given on 10 September 2013 and 19 August 2014. Ward JA held that the applicant's appeals were doomed to fail.
The applicant seeks special leave to appeal to this Court. She requires an extension of time in which to do so. The applicant's draft notice of appeal and written case do not identify any question of law or error in the decisions below. An appeal to this Court would enjoy no prospects of success and therefore a grant of an extension of time would be futile.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
15 October 2015 P.A. Keane

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.

Keep reading for free

Create a free CaseChat account to read KI Bun Kwon v Kun Ii Cha and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] HCASL 165
Decision Date

CaseChat Overview and Summary

KI Bun Kwon brought a case against Kun Ii Cha in the Supreme Court of New South Wales. The case involved the refusal by Kun Ii Cha to extend a caveat that KI Bun Kwon had lodged over a property in Bankstown, Sydney. KI Bun Kwon also filed a statement of claim seeking relief concerning the Bankstown property and money she claimed to have lent Kun Ii Cha between 1979 and 1982. The Supreme Court dismissed the proceedings on the basis that the statement of claim disclosed no reasonable cause of action. The Court of Appeal also refused leave to appeal from the decisions of White J. KI Bun Kwon now seeks special leave to appeal to the High Court of Australia.

The legal issues that the court had to decide involved the interpretation of the Real Property Act 1900 (NSW) and the circumstances in which a caveat can be extended. The court had to determine whether KI Bun Kwon had a caveatable interest in the property and whether the dismissal of the proceedings was just. The court also had to consider the circumstances in which an appeal to the High Court would enjoy prospects of success.

The court found that KI Bun Kwon had not identified any question of law or error in the decisions below. The court held that the applicant's appeals were doomed to fail and that an appeal to the High Court would enjoy no prospects of success. The court held that the dismissal of the proceedings was just and that the extension of time for KI Bun Kwon to lodge a notice of appeal would be futile. The court dismissed the application for special leave to appeal and ordered the Registrar to draw up, sign and seal an order dismissing the application.

The final orders of the court were that KI Bun Kwon's application for special leave to appeal to the High Court of Australia was dismissed and that the Registrar was directed to draw up, sign and seal an order dismissing the application. The court found that the applicant had not identified any question of law or error in the decisions below and that an appeal to the High Court would enjoy no prospects of success. The court held that the dismissal of the proceedings was just and that the extension of time for KI Bun Kwon to lodge a notice of appeal would be futile.

Orders