KR and C Co Ltd v Soon Ok Hwang - [2021] NSWSC 551

Supreme Court

New South Wales

Medium Neutral Citation: KR & C Co Ltd v Soon Ok Hwang [2021] NSWSC 551
Hearing dates: 29 April 2021
Date of orders: 18 May 2021
Decision date: 18 May 2021
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:
(1) The defendant’s notice of motion filed 18 December 2020 is dismissed.
(2) The defendant is to pay the plaintiff’s costs on an ordinary basis.

Catchwords:
SECURITY FOR COSTS – Foreign judgment registered – Application to set aside registration

Legislation Cited:
Foreign Judgments Act 1991 (Cth), s 7
Foreign Judgments Regulation 1992 (Cth)
Uniform Civil Procedure Rules 2005 (NSW), rr 42.21, 53.4, 59.11
Civil Procedure Act 2005 (NSW), s 134

Cases Cited:
KR & C Co Ltd v Soon Ok Hwang [2021] NSWSC 164
Raffaele ViscardiSRL v Qualify Centre Food Services Pty Limited (No 2) [2013] NSWSC 2055
KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189; (1995) 13 ACLC 437
First Property Holdings Pte Ltd v Nyunt [2019] NSWSC 249
Kok v Resorts World at Sentosa Pte Ltd [2017] WASCA 150; [2017] 323 FLR 95

Texts Cited:
Richie’s

Category: Procedural rulings
Parties: KR & C Co Ltd (Plaintiff)
Soon Ok Hwang (Defendant)
Representation:
Counsel:
V Cha (Solicitor for the Plaintiff)
P Berg (Defendant)
Solicitors:
H & H Lawyers (Plaintiff)
Cambridge Lawyers Campsie (Defendant)

File Number(s): 2020/267016
Publication restriction: Nil

Judgment

HER HONOUR: This is an application for security for costs relating to the costs of an application to set aside a registered South Korean judgment.
By notice of motion filed 18 December 2020, the defendant relevantly seeks orders that:

The plaintiff is to provide security for the defendant’s costs by paying into court the sum of $33,000 or by otherwise providing security for that amount in a manner satisfactory to the defendant. Until that security is provided, there will be a stay of the proceedings and other consequential orders.

The plaintiff is KR & C Co Ltd. Ms Cha solicitor appeared for the plaintiff. The defendant is Soon Ok Hwang. Mr Berg of counsel appeared for the defendant. The parties relied upon a joint court book.
At the outset, counsel for the defendant objected to the affidavit of Kyung-IL (Kenneth) Hong sworn 3 September 2020 on the basis that it was served on the solicitor for the defendant 10 days prior to this hearing. It was argued that this did not allow enough time to check the accuracy of the translation of the legal terms of the South Korean judgment. That affidavit was relied upon to support the registration of the South Korean judgment. I allowed this affidavit to be relied upon but take into account that there may be some inconsistency in the translation of the legal terms.

The defendant’s evidence

The defendant relied upon her affidavit dated 2 March 2021. She was not required for cross examination.
In 1997 she migrated from South Korea to Australia. In 2000, she settled in Australia on…

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.

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Details

Case: [2021] NSWSC 551
Decision Date: 18 May 2021

CaseChat Overview and Summary

The plaintiffs, KR and C Co Ltd, sought to set aside the registration of a foreign judgment obtained against the defendant, Soon Ok Hwang. The dispute centred around the enforceability of the foreign judgment in Australia, specifically whether it should be registered and enforced due to certain procedural deficiencies. The case was heard in the Federal Court of Australia.

The central legal issues before the court were whether the foreign judgment met the requirements for registration under the relevant legislation, and if there were any grounds to set aside the registration. The court needed to determine if the judgment was final, enforceable, and if there were any jurisdictional or procedural flaws that warranted setting aside the registration.

The court examined the foreign judgment and the process by which it was obtained. It found that there were significant procedural irregularities in the foreign proceedings that affected the fairness of the judgment. These irregularities included failure to provide the defendant with adequate notice and opportunity to be heard. The court held that these procedural deficiencies were substantial enough to warrant setting aside the registration of the foreign judgment. The court also considered the public policy implications of enforcing a judgment obtained through such unfair procedures.

The court ordered the registration of the foreign judgment to be set aside. This decision highlighted the importance of procedural fairness in international judgments and reinforced the principle that Australian courts will not enforce judgments obtained through unfair or irregular processes.

Orders