Lee v Lonestar International Pty Ltd

[2022] NSWSC 1688

Supreme Court

New South Wales

Medium Neutral Citation:

Lee v Lonestar International Pty Ltd [2022] NSWSC 1688

Hearing dates:

8 December 2022

Decision date:

08 December 2022

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1)   Judgment in favour of the second plaintiff against the first defendant in the sum of $2,383,860.16.

(2)   Judgment in favour of the second plaintiff against the second defendant in the sum of $5,008,860.16.

(3)   Order the defendants to pay the second plaintiff’s costs of the proceedings.

Catchwords:

CIVIL PROCEDURE — judgment in absence of party — no appearance by defendant — application of UCPR r 29.7

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 29.7, 42.1

Category:

Principal judgment

Parties:

Bo Hyun Lee (First Plaintiff)
IBN Global Pty Ltd (ACN 166 098 157) (Second Plaintiff)
Lonestar International Pty Ltd (First Defendant)
Taihun Choi (Second Defendant)

Representation:

Counsel:
N Riordan (Second Plaintiff)
No appearance (First and Second Defendants)

Solicitors:
H & H Lawyers (First and Second Plaintiffs)

File Number(s):

2021/221936

JUDGMENT (EX TEMPORE)

1. These proceedings were commenced by a statement of claim filed by Bo Hyun Lee, the first plaintiff, on 4 August 2021. On 14 October 2021, an amended statement of claim was filed by the plaintiffs, Mr Lee and IBN Global Pty Ltd, the second plaintiff (IBN). On 4 November 2021, an amended defence was filed by the defendants, Lonestar International Pty Ltd (Lonestar) and Taihun Choi. On 17 November 2021, a reply was filed on behalf of the plaintiffs. Various directions were made by the Registrar from time to time. On 12 May 2022, the Registrar listed this matter for hearing on 8 December 2022 with an estimate of two days. At that time, the defendants were represented by a solicitor, Hans Kim, to act on their behalf.

2. On 1 November 2022, Mr Choi, on behalf of the defendants, terminated the retainer of Hans Kim Lawyer. On 4 November 2022, the defendants filed a notice of removal of solicitors. When the matter was called on 8 December 2022, there was no appearance on behalf of the defendants. My associate called the matter outside court and called the name of Taihun Choi three times. There was no answer to that call. Mr Riordan who appears on behalf of IBN has also tendered some documents which comprise emails sent by his instructing solicitors to Mr Choi following the notice of removal of Mr Choi's solicitors, none of which has been answered.

3. It would appear that both defendants have decided not to appear at the hearing before me today. Mr Riordan asked that I proceed pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 29.7(3) which provides:

“If, in relation to a liquidated claim, the plaintiff appears, but a defendant does not appear, the court may, without proceeding to trial, give judgment against that defendant on evidence of –

(a)   the amount then due to the plaintiff in respect of the cause of action for which the proceedings were commenced, and

(b)   any payments made or credits accrued since the commencement of the proceedings in reduction of the amount of the plaintiff’s claim or costs.”

4. In support of IBN’s application pursuant to UCPR, r 29.7(3), Mr Riordan has read the affidavit of Mr Lee sworn 30 November 2022. Mr Lee is authorised to swear the affidavit on behalf of IBN Global Pty Ltd. Mr Lee deposed as to the following matters.

5. In substance, the plaintiffs allege:

1. by loan agreement dated 17 January 2017, Mr Lee lent to Lonestar an amount which was guaranteed by Mr Choi;

2. subsequently, on 20 May 2019, the loan agreement was novated to substitute IBN for Mr Lee in order to reflect the circumstance that IBN had provided the loan funds; and

3. Lonestar defaulted on the loan agreement and Mr Choi defaulted on the guarantee.

6. On 28 January 2022, judgment was entered against Lonestar in favour of IBN, in the sum of $2,625,000 (the judgment debt). A garnishee order was made against the ANZ Banking Group Ltd (ANZ) in respect of Lonestar until the amount of the judgment debt, plus any interest which may accrue, was paid or until the Court otherwise orders. On about 17 February 2022, ANZ made a payment into the plaintiffs’ lawyer’s trust account in the sum of $2,222.62. That is the sum total of the amount which IBN has recovered in respect of the judgment debt.

7. Mr Lee deposed that it was a term of the investment loan agreement that Lonestar, relevantly the borrower, would pay IBN interest (defined as “post-interest”) from 1 June 2020 of 3% per month for the remaining amount until the full amount is paid. The judgment debt does not include a judgment for the post-interest. Mr Lee has calculated the post-interest in the total sum to date of $2,383,860.16 (which takes account of the payment of $2,222,62). Accordingly, in respect of Mr Choi, who is alleged to be liable as a guarantor, IBM seeks the total sum of $5,008,860.16, which comprises the judgment debt and post-interest. IBN also seeks a judgment against Lonestar for the post-interest.

8. The evidence of Mr Lee as to the quantum is sufficient to satisfy the requirements of UCPR, r 29.7(3)(a) and (b).

9. Mr Riordan also seeks that I make an order that the defendants pay IBN’s costs of the proceedings in accordance with the general rule: UCPR, r 42.1. I see no reason to depart from the general rule.

Orders

10. For the reasons given above, I make the following orders:

1. Judgment in favour of the second plaintiff against the first defendant in the sum of $2,383,860.16.

2. Judgment in favour of the second plaintiff against the second defendant in the sum of $5,008,860.16.

3. Order the defendants to pay the second plaintiff’s costs of the proceedings.

**********

Decision last updated: 09 December 2022