Lee v Yi

[2008] WADC 87

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   LEE & ANOR -v- YI & ANOR [2008] WADC 87

CORAM:   REGISTRAR KINGSLEY

HEARD:   11 JUNE 2008

DELIVERED          :   8 JULY 2008

FILE NO/S:   CIV 498 of 2007

BETWEEN:   SANG YUL LEE

First Plaintiff

YONG SUK LEE
Second Plaintiff

AND

WEN RONG YI
First Defendant

WAN KI YI
Second Defendant

Catchwords:

Practice - Application by plaintiffs to strike paragraphs of the defence - Application by defendants to amend the defence

Legislation:

Nil

Result:

Plaintiffs' application to strike paragraphs of the defence allowed
Defendants' application to amend defence allowed

Representation:

Counsel:

First Plaintiff                :     R Ioppolo

Second Plaintiff            :     R Ioppolo

First Defendant             :     Mr M Barrett-Lennard

Second Defendant         :     Mr M Barrett-Lennard

Solicitors:

First Plaintiff                :     Talbot & Olivier

Second Plaintiff            :     Talbot & Olivier

First Defendant             :     Barrett-Lennard & Co

Second Defendant         :     Barrett-Lennard & Co

Case(s) referred to in judgment(s):

Nil

1. REGISTRAR KINGSLEY:  The defendant has brought an application filed 21 May 2008 seeking orders that:

   (a)the amended statement of claim be struck out wholly;

   (b)the plaintiffs furnish to the defendant within 10 days full particulars of any claim in connection between the payment as claimed to be made by the plaintiff to the defendant and the plaintiffs;

   (c)the defendant have leave to further amend the amended defence in terms of the minute of proposed amended defence filed 21 May 2008;

   (d)the plaintiffs file and serve further and better discovery of documents on oath in terms of the minutes of request for further and better discovery filed 21 May 2008.

2. The plaintiffs brought an application dated 21 May 2008 seeking leave to apply to strike out pars 2(a) and 2(c) of the amended defence pursuant to Supreme Court Rules O 20 r 19(1)(a) and (c) on the basis that those paragraphs are unclear, embarrassing and do not raise a good defence.

3. The plaintiffs require leave of the Court to bring their application.  The plaintiffs' counsel submits that the need for the application to strike‑out pars 2(a) and 2(c) of the amended defence only became apparent after the defendants gave particulars on 15 April 2008.  On the plaintiffs' submission the particulars raised an issue as to the source of funds transferred.  In a letter dated 15 April 2008 the defendants' solicitors wrote to the plaintiffs' solicitors stating that the source of the funds from which the transfers to the defendants were made are matters in issue.

4. It being the case that the issue as to source of funds and the relevance of pars 2(a) and 2(c) of the defence having arisen in April 2008, it is appropriate that leave be given to the plaintiffs to bring the application.

The plaintiffs' claim

1. By its amended statement of claim dated 11 February 2008 the plaintiffs plead they paid to the defendant, by way of loans, moneys totalling $374,816.78.  Some seven payments are pleaded within the period 13 October and 7 January 2002 and the payment are particularised as being made by direct bank transfer into the bank accounts of each of the first defendant and the second defendant.  The schedule to the statement of claim further particularises the breakdown of payment to the defendants.

2. The plaintiffs go on to plead that the defendants have repaid the plaintiffs the sum of $16,640 and despite demand have not repaid the balance of the loan.

The defendants' defence

1. In the defence dated 15 June 2007 the first defendant admits the demands but denies the fact of the loan.  At par 2(c) of the defence the first defendant pleads that the first defendant never entered into any loan agreement with the plaintiffs and at par 2(d) pleads that no amount is due and payable by the first defendant to the plaintiffs pursuant to any alleged loan agreement or at all.

2. At par 2(a) the first defendant pleads that the only sum of money paid by the plaintiffs to the first defendant was the sum of $16,640 on or about 19 February 2002 which was on‑paid to the plaintiffs' daughter at the request of the plaintiffs.

3. By an amended statement of defence made 30 January 2008 the defendants plead at par 2:

   "(a)That the First Defendant received on the dates below stated the amounts below stated from the Second Defendant's (now deceased) father:

   (i)16^th October 2000  $18,784

   (ii)17^th October 2000  $18,946.14

   (iii)22^nd March 2001    $19,780

   (iv)5^th October 2001    $180,460, and

   (b)That the First Defendant received on the date below stated the amount below stated from the Plaintiffs:

   (i)9^th January 2002    $19,240, and

   (iii)22^nd March 2001    $19,780

   (iv)5^th October 2001    $180,460, and

   (b)That the First Defendant received on the date below stated the amount below stated from the Plaintiffs:

   (i)9^th January 2002    $19,240, and

   (c)That the Second Defendant received on the dates below stated the amounts below stated from the Second Defendant's (now deceased) father:

   (i)22^nd March 2001    $19,780

   (ii)23^rd March 2001    $39,560"

4. In a minute of further amended statement of defence filed 21 May 2008 the defendants seek to delete pars 2(b) and 2(b) (second mentioned).  The plaintiff opposes the deletion of those paragraphs on the basis the paragraphs constitute an admission.  The plaintiffs counsel submits the defendants have not laid the foundation to consider whether the admissions should be withdrawn.

Discussion

1. It is the plaintiffs' case that pursuant to four oral agreements, the plaintiffs' agreed to lend money to the first and second defendants to assist them in their business activities.  The defendants have consistently pleaded that there was no loan agreement between the defendants and the plaintiffs.  I therefore have great difficulty in understanding the relevance of pars 2(a) and 2(c) of the further amended defence to the pleaded case.  The pleadings introduced at pars 2(a) and 2(c) refer to the first defendant receiving moneys from the second defendant's (now deceased) father.  The amounts of money bear no relevance to the plaintiffs' pleaded case, and the fact the first defendant received moneys from the second defendant's (now deceased) father has no relevance to the fact that the plaintiffs allege four loan agreements and the defendants deny the loan agreements.

2. Defendants' counsel in submissions made the point that the discovery to date showed that none of the payments made were in fact made by the plaintiffs to the defendants.  Hence the defendants' counsel submits the source of the funds became an issue.

3. In my opinion pars 2(a) and 2(c) are embarrassing and irrelevant to the claim as pleaded.  The plea that the defendants received sums from the second defendant's (now deceased) father, which sums are only reasonably proximate to the alleged loan payments, and bear no relationship to the quantum of the loan payments, does not have any relevance to the pleaded claim of the plaintiffs.  The defendants have not, in pars 2(a) and (c) laid any foundation, by way of material fact, to suggest the issues raised are relevant.

The purported admission

1. The minute of proposed amended defence dated 21 May seeks to delete pars 2(b) and 2(b) as second mentioned.  In each of those paragraphs the plea is that the first defendant received certain sums from the plaintiffs.

2. The plaintiffs oppose the deletion.  The plaintiffs' case is that certain sums, by way of loans, were paid by the plaintiffs to the defendants.  The loans commenced on 13 October 2000 and concluded on 7 January 2002.  At par 2(b)(i) and 2(b)(i) second mentioned, a payment of $19,240 is alleged to have been made on 9 January 2002.  That sum could not be related back to the loan agreement as the plaintiffs plead the last loan being made on 7 January 2002.

3. The amounts referred to in par 2(b)(iii) and (iv) are on dates referred to in par 1 of the plaintiffs' statement of claim but are for different amounts.  I am not prepared to find that the first defendant has made admissions in relation to the loan agreements as pleaded by the plaintiffs.  Whilst the dates are common the amounts are not.  Further, pars 2(b) and 2(b) second mentioned must be placed into the context that par 1 the defendants deny the loan agreement.  That denial is re-stated at par 4(b) of the defence.  Accordingly, I am prepared to allow par 2(b) and par 2(b) (second mentioned) be deleted.

The striking of the amended statement of claim

1. At the conclusion of the hearing, defendants' counsel stated that this portion of the defendants' chamber summons will not be proceeded with.  Accordingly that part of the chamber summons is dismissed.

Further particulars of statement of claim and discovery

1. Both these matters are informed by the pleadings and it would appear that the pleadings have yet to be settled.  Accordingly those applications are left in abeyance.

Orders

1. The orders I propose to make are:

   1.The plaintiffs have leave to bring an application to strike‑out pars 2(a) and 2(c) of the amended defence.

   2.Par 2(a) and 2(c) of the amended defence are struck.

   3.There be leave to the defendant to strike pars 2(b) and 2(b) second mentioned in the amended defence.

   4.The defendants' application for leave to further amend the amended defence in terms of the minute of proposed amended defence filed 21 May 2008 is dismissed.

   5.The defendants' application and the plaintiffs' application will be re‑listed to hear counsel on the issue of costs, the balance of issues remaining on the defendants' application and on the issue of the defence generally.