Lee v Park
[2009] QDC 364
•15/10/2009
[2009] QDC 364
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 715 of 2009
| CHOL YONG LEE | Plaintiff |
| and | |
| YONG BUM YOUN PARK AKA And LEE N YOUNG PTY LTD GOD'S MISSION GROUP PTY LTD | Defendant Defendant Defendant |
BRISBANE
..DATE 15/10/2009
ORDER
CATCHWORDS
Court accepts defendant's undertaking not to leave Australia until dates fixed for trial have passed - whether court had jurisdiction to order that he not leave, doubted
HIS HONOUR: The Court has made an order in terms of the
initialled draft which provides to following effect:
"THE ORDER OF THE COURT, MADE UPON THE UNDERTAKING OF THE FIRST DEFENDANT NOT TO LEAVE AUSTRALIA UNTIL COMPLETION OF THE TRIAL OF THIS PROCEEDING LISTED FOR 3RD AND 4TH NOVEMBER 2009, IS THAT -
1. The order of 18 September 2009, except for paragraph 15 thereof, consequent upon the above undertaking, be enlarged to take effect up to and including the date on which it is revoked by an order of this court.
2. Without prejudice to the preceding Order, or the defendants’ ability to claim privilege, order that on or before 4pm on 21 October 2009, the First, Second and Third Defendants do make and swear, to the best of their knowledge, skill and ability, a full and sufficient Affidavit setting out and annexing source documents (such as bank statements and cheque butts):
- The circumstances under which the business known as Mokka Café (“the Mokka Café”) located at Sunnybank Plaza shopping centre was sold, as indicated in the letter of Gateway Lawyers of 12 October 2009, a copy of which is annexure “A” to this order and by the First Defendant’s statements as recounted in the affidavit of Jung-Kook Seo filed today by leave, and the value that was achieved for it;
- any such payments that were made by the purchaser of the Mokka Café including the date of payment, the amount paid and the account in which the payment was banked;
- any such disbursements of the proceeds of sale of the Mokka Café including the date of disbursement, the amount paid, the reasons for payment and the account to which the payment was made;
3. Each Party have liberty to apply.
4. The Defendants produce on 22 October 2009 at 10 am, for inspection and copying, at the offices of the Plaintiff’s solicitors all documents intended to be relied by the Defendants at trial of this matter.
5. (By way of confirming arrangements made before the Court on 24 September 2009 but not noted in the order) the Plaintiff file and serve a book of relevant documents for the trial, indexed and paginated, and if possible with the defendants’ agreement, on 26 October 2009.
6. Costs of today’s appearance be costs in the cause.
DEPUTY REGISTRAR
Notice under rule 665 Uniform Civil Procedure Rules 1999
If you, being either YONG BUM YOUN PARK (AKA YOUN BUM YOUNG AKA MICHAEL YOUNG) (being a person required to perform an act under this Order) or alternatively any person being a person required to perform an act under this Order, do not obey this Order within the time specified, you will be liable to court proceedings to compel you to obey it and punishment for contempt."
HIS HONOUR: Paragraph 15 of the order of 18 September 2009 which was extended until today by an order of another Judge of the 24th of September 2009 was, "Until further order of this Court the first defendant is restrained from leaving Australia." The further words, "and is forthwith to surrender to the Registrar of this Court any and all passports he holds" was struck out of the draft put before his Honour.
Although the first defendant has obtained leave to read and file an affidavit affirmed by him today indicating his consent to continuance of the orders of the 18th of September 2009 up to and including the 4th of November 2009, which is the second of the two days fixed for the trial of this proceeding, I feel some unease at using the Court's authority to continue the order in paragraph 15.
There has been no opportunity to go into the questions of this Court's jurisdiction to make such an order.
...
HIS HONOUR: The general arrangement of the Uniform Civil Procedure Rules is that such strong orders are likely to be reserved to the Supreme Court. One finds that, for example, in Rule 942(2)(b) which permits the Court to require a defendant to undertake not to leave Australia. That provision is in part 8 which by Rule 333 applies only in the Supreme Court.
Mr Cook, who is counsel for the plaintiff/applicant this morning, was not in the matter on the 18th of September 2009 and has had no opportunity to prepare and present argument on this interesting aspect. I am relieved to have the undertaking set out in today's order offered by Mr Park. It has been explained to him and I am confident he understands that from his point of view the effect of the undertaking is the same as if the order of the 18th of September 2009 and paragraph 15 in particular had been extended. From my personal point of view today's is a more palatable way of achieving the same effect.
Mr Cook was present on 24 September 2009, as was Ms Laylee, representing the defendants. The order on the file, they agree, does not reflect everything that was determined on that day. That's confirmed by the Associate's endorsement in respect of the proceeding being set down for trial for two days commencing the 3rd of November 2009. There's nothing to reflect the agreement which the parties made and which the Judge endorsed - which has now been confirmed by paragraph 5 of today's order. It is convenient to have that formally recognised.
Paragraph 2 of today's order appears to be comfortably within the spirit of 24 September order which required the first, second and third defendants to make and swear to the best of their knowledge, skill and ability an affidavit setting out assets, not limited to Australian assets.
The plaintiff is in possession of information indicating that one of the Australian assets has been sold and that proceeds have been received by Mr Park or one of the companies and maybe on the significant date of 18th of September 2009, further that some of the proceeds, $60,000 being mentioned, have been disbursed.
I am prepared to make the orders set out in paragraph 2 in those circumstances. Mr Park's only comment or reservation was that in light of original order nothing happened in respect of the sale, there was nothing that went ahead, no proceeds, nothing to disburse. If that is the case then the affidavit required will presumably state as much.
It wasn’t express in the more recent order, not is it in mine, that the affidavit required of the corporate defendants is likely to be one of Mr Park who has indicated to me that he is the relevant officer.
Essentially he has presented the matter today on his own. He may have had some assistance from Ms Laylee whose firm are solicitors on the record for the defendants. Yesterday they filed an application seeking leave to withdraw. That application is listed for the 28th of October 2009.
I was receptive to the notion of granting leave to withdraw today although Ms Laylee didn't seek that, merely indicating she was here to advise the Court about that application of her firm and wouldn't be taking any active part in today's particular application.
It's been convenient to have her continued presence today, although Mr Park appears to have a good grasp of what's going on in the proceeding and sufficient facility in English to run it. The Court understands that although the defendants are effectively now self-represented Mr Park may have access to other legal advice.
One of the reasons for not dealing with the application for the present solicitors to withdraw is that the matter is so close to trial. The plaintiff's entitled to have the advantage of reliable addresses for service and the like so that it can make necessary applications. In that regard, I commented that the plaintiff may require the Court's leave to seek orders for the completion of disclosure by inspection and the like, given that the trial dates have been fixed. I had assumed a request for trial date would have been signed by the plaintiff but Mr Cook disabuses me in that regard. The Court has regarded the matter as sufficiently urgent, given the existence of the freezing orders in place, to take some trouble to find early trial dates; there has been no request for trial date signed by any party testifying that the matter is ready for trial.
The underlying proceeding arises from the plaintiff's withdrawal from broad joint venture arrangements that were entered into whereby he would be the financier of various businesses. He withdrew from those - he asserts by agreement incorporating conditions which would see a clean break made, including not only refunding of monies he had put in, which appears to have occurred, according to the statement of claim, but also effective release from obligations to third parties which his involvement in the business led to. It is to get issues of that kind resolved to his satisfaction that Mr Lee has commenced this proceeding and pursued it.
Both protagonists hail from Korea and there appears to be some debate going on as to the strength of the ties of the two of them to this country; it is concerning the plaintiff at the least that Mr Park may decamp. He denies any intention to do that. Indeed, he tells the Court that the information that may have been given to this point regarding his own status
incorrectly describes it, that he does indeed have Australian citizenship and an entitlement to be here permanently.
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