Lin v CNK Global Pty Ltd - [2021] QSC 166

SUPREME COURT OF QUEENSLAND

CITATION:

Lin v CNK Global Pty Ltd & ors [2021] QSC 166

PARTIES:

ZEJIAN LIN

(Plaintiff)

v

CNK GLOBAL PTY LTD ACN 607 744 721 AS TRUSTEE FOR THE CNK FLOBAL TRUST

(First Defendant)

AND

STAR HARBOUR INVESTMENT PTY LTD ACN 613 158 777 AS TRUSTEE FOR THE STAR HARBOUR INVESTMENT TRUST

(Second Defendant)

AND

GYU SUB HWANG

(Third Defendant)

FILE NO/S:

BS 7905 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

21 July 2021

DELIVERED AT:

Brisbane

HEARING DATE:

7 June 2021

JUDGE:

Brown J

ORDER:

The order of the Court is that:

1. The request for default judgment on the counterclaim be refused.

2. There be no order as to costs.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS JURISDICTION: JURISDICTION, POWERS AND GENERALLY – OTHER MATTERS – REGISTRARS AND OTHER OFFICERS – where the third defendant made an ex parte application to the Registrar for default judgment against the plaintiff on the third defendant’s counterclaim – where the matter was referred to the court pursuant to rule 982 of the Uniform Civil Procedure Rules 1999 (Qld) – where the Registrar sought directions as to whether a plaintiff by counterclaim requires leave of the court or registrar pursuant to rule 377 of the Uniform Civil Procedure Rules 1999 (Qld) to amend the relief being sought in the counterclaim – where the Registrar sought directions as to whether a Registrar can grant default judgment against a defendant by counterclaim who is also the plaintiff to the original proceeding that has not filed and served an answer to the counterclaim – where the Registrar sought directions as to whether the Registrar could grant the request for default judgment filed against the defendant by counterclaim

Aust Investment Corp (Holdings) Ltd v Markway Holdings Pty Ltd [2002] QSC 305

Uniform Civil Procedure Rules 1999 (Qld) r 137, r 139, r 164, r 175, r 177, r 178, r 180, r 181, r 182, r 281, r 371, r 374, r 377, r 982

COUNSEL:

M J Henry for the Third Defendant

SOLICITORS:

SungDo Lawyers for the Third Defendant
Irish Bentley Lawyers for the Plaintiff

The third defendant (the plaintiff by counterclaim and the applicant) sought default judgment on his counterclaim filed on 25 May 2021. That was the second occasion on which default judgment had been requested. The first occasion was on 15 March 2021. The Registrar refused the first request for default judgment on 22 March 2021.
On 30 March 2021, the Deputy Registrar made a consent order for the third defendant to file and serve his second further amended counterclaim by 31 March 2021, and for the plaintiff to serve and file his amended answer by 17 April 2021.
While the third defendant filed his second further amended defence and second further amended counterclaim, the plaintiff did not file his amended answer by the nominated date. The plaintiff still has not filed his amended answer.
On 25 May…

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] QSC 166
Decision Date: 21 July 2021

CaseChat Overview and Summary

Lin v CNK Global Pty Ltd involved a complex procedural dispute concerning an ex parte application for default judgment on a counterclaim by the third defendant against the plaintiff, who was also the defendant by counterclaim. The matter was referred to the court under rule 982 of the Uniform Civil Procedure Rules 1999 (Qld) to seek directions on several matters, including whether the plaintiff required leave to amend the relief sought in the counterclaim and whether a default judgment could be granted against the plaintiff who had not filed an answer to the counterclaim.

The court needed to determine whether a defendant by counterclaim must obtain leave to amend the relief sought in their counterclaim and whether a Registrar could grant a default judgment against a plaintiff who is also a defendant by counterclaim and has not answered the counterclaim. Additionally, the court had to consider whether the Registrar could grant a default judgment against a defendant by counterclaim.

The court found that it was not appropriate to make specific directions in the case, as the plaintiff had not filed an amended answer to the counterclaim despite being notified of the non-compliance. The court concluded that it did not need to answer the remaining questions because the answer to the third question was no. Therefore, the request for default judgment on the counterclaim was refused, and no order was made as to costs. The court reasoned that the plaintiff, who had failed to comply with the court orders, should not be awarded costs.

In conclusion, the court issued an order refusing the request for default judgment on the counterclaim and made no order as to costs. This decision highlighted the importance of adhering to court orders and the consequences of non-compliance.

Orders

Orders of the court

The order of the Court is that:

1. The request for default judgment on the counterclaim be refused.

2. There be no order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I do not presently consider it appropriate to make any directions in relation to the matter. The plaintiff/defendant by counterclaim submitted that directions should be made for the management of the action. It raised the failure of the third defendant to provide what it contends is a proper response to the request for documents under r 222. That is disputed by the third defendant. No application has been brought in that regard and, in any event, that would not stay any order that the plaintiff provide an answer to a counterclaim. The plaintiff is on notice that it has not complied with the orders to provide an answer to the counterclaim. If it does not seek to address that non-compliance, it may be open to the third defendant to take action against the plaintiff in that regard. It is therefore not appropriate to make any particular directions in that regard.Conclusion Given my answer to question 3 of the questions asked by the Registrar is no, it is unnecessary to answer the remaining questions. I do not propose to make any directions. The Court may dispose of a matter under r 982(3) of the UCPR. Accordingly, I order that the request for default judgment on the counterclaim (Court Document 90) be refused. I do not consider any order should be made as to costs. While the third defendant was not successful, the plaintiff was notified of the hearing out of courtesy and chose to appear. In any event, the plaintiff has failed to comply with Court orders in not filing an amended answer to the counterclaim, which was not remedied or proposed to be remedied at the time of hearing. It should not get its costs in such circumstances.Orders I order that:1.The request for default judgment on the counterclaim be refused.2.There be no order as to costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Lin v CNK Global Pty Ltd & ors [2021] QSC 166
PARTIES:	ZEJIAN LIN (Plaintiff) v CNK GLOBAL PTY LTD ACN 607 744 721 AS TRUSTEE FOR THE CNK FLOBAL TRUST (First Defendant) AND STAR HARBOUR INVESTMENT PTY LTD ACN 613 158 777 AS TRUSTEE FOR THE STAR HARBOUR INVESTMENT TRUST (Second Defendant) AND GYU SUB HWANG (Third Defendant)
FILE NO/S:	BS 7905 of 2017
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	21 July 2021
DELIVERED AT:	Brisbane
HEARING DATE:	7 June 2021
JUDGE:	Brown J
ORDER:	The order of the Court is that: 1. The request for default judgment on the counterclaim be refused. 2. There be no order as to costs.
CATCHWORDS:	PROCEDURE – STATE AND TERRITORY COURTS JURISDICTION: JURISDICTION, POWERS AND GENERALLY – OTHER MATTERS – REGISTRARS AND OTHER OFFICERS – where the third defendant made an ex parte application to the Registrar for default judgment against the plaintiff on the third defendant’s counterclaim – where the matter was referred to the court pursuant to rule 982 of the Uniform Civil Procedure Rules 1999 (Qld) – where the Registrar sought directions as to whether a plaintiff by counterclaim requires leave of the court or registrar pursuant to rule 377 of the Uniform Civil Procedure Rules 1999 (Qld) to amend the relief being sought in the counterclaim – where the Registrar sought directions as to whether a Registrar can grant default judgment against a defendant by counterclaim who is also the plaintiff to the original proceeding that has not filed and served an answer to the counterclaim – where the Registrar sought directions as to whether the Registrar could grant the request for default judgment filed against the defendant by counterclaim Aust Investment Corp (Holdings) Ltd v Markway Holdings Pty Ltd [2002] QSC 305 Uniform Civil Procedure Rules 1999 (Qld) r 137, r 139, r 164, r 175, r 177, r 178, r 180, r 181, r 182, r 281, r 371, r 374, r 377, r 982
COUNSEL:	M J Henry for the Third Defendant
SOLICITORS:	SungDo Lawyers for the Third Defendant Irish Bentley Lawyers for the Plaintiff