Moon v Mun

[2012] NSWCA 369

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Moon v Mun [2012] NSWCA 369

Hearing dates:

5 November 2012

Decision date:

05 November 2012

Before:

Barrett JA

Decision:

(1) Order that the judgment of the Local Court made on 7 March 2012 in proceedings 2011/00286543 be stayed until determination of the pending summons for leave to appeal filed in this Court and, if leave is granted, until the determination of the appeal or, in any case, until earlier order of this Court.

(2) Order that the respondent to the notice of motion filed on 11 October 2012, pay the applicants costs of that notice of motion.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - application for stay pending hearing of application for leave to appeal - no matter of principle

Legislation Cited:

Uniform Civil Procedure Rules, rule 17.7

Cases Cited:

Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737

Category:

Interlocutory applications

Parties:

Young Soo Moon - First Applicant
Sung Shim Lim - Second Applicant
Soon Sil Mun - Respondent

Representation:

J Hewitt - Applicants
A Chee - Respondent
Dahan Lawyers - Applicants
KDL Legal - Respondent

File Number(s):

2012/286045

 Decision under appeal 

Citation:

[2012] NSWSC 973

Date of Decision:

2012-08-24 00:00:00

Before:

Schmidt J

File Number(s):

2012/99913

Judgment

1. The applicants have filed a summons by which they seek leave to appeal from a decision of a judge of the Common Law Division dismissing an appeal from the Local Court where a money judgment of some $32,000 including interest had been given against the present applicants and in favour of the present respondent.

1. Now before me for determination is an application for an order staying the judgment of the Local Court until determination of the proceedings that have been commenced in this Court.

1. The judgment in the Local Court was given in consequence of a decision by the magistrate that the present applicants' defence should be struck out. The magistrate referred to several deficiencies in the defence and took the view that, because of those deficiencies, the defence was not viable.

1. The magistrate then immediately stated without further discussion that there would be judgment for the plaintiff, that is the present respondent. There had been earlier a brief reference by the magistrate to the allegations in the statement of claim.

1. On appeal to the Supreme Court, the primary judge said that it was not clear why the magistrate had struck out the defence, particularly as there was no application in that regard. As to the judgment in favour of the present respondent, the primary judge took the view that, although there had been no reference to relevant provisions of the Uniform Civil Procedure Rules, the case was one of judgment on admissions as contemplated by rule 17.7, noting that there were some admissions in the defence and others in submissions made before the Local Court.

1. If allowed to appeal to the Court of Appeal, the applicants will argue that the matter was never in fact approached as a case of judgment on admissions. There was no explicit application in that respect and the applicants say, in any event, that the conditions necessary to permit exercise of the discretion to allow judgment on admissions were not satisfied; also that, even on the facts including those derived from admissions, the elements essential to a cause of action in debt which is what the respondent pleaded, were not established (I would add as an aside, that there seems to me to be a distinct possibility that, if there were any valid claim, it would be a claim for unliquidated damages for breach of contract by defaulting purchasers, not a claim in debt).

1. A point is also raised as to whether the Local Court and the primary judge were correct when they said that a form of set-off that the applicants put forward or attempted to put forward (there is a question about the extent to which it was ventilated) could only be advanced by cross claim.

1. One of the matters to be considered on an application such as this is the viability of the proposed appeal. On that, it is sufficient for me to say that there are clearly arguable aspects such as to constitute prospects of success.

1. I must then consider the balance of convenience and the respective degrees of hardship.

1. On that, the most pertinent point is that the respondent has used the Local Court judgment as a basis for issuing a bankruptcy notice against both of the applicants.

1. The bankruptcy notice was received by the applicants on or about 7 September 2012 and, on 27 September 2012, they filed in the Federal Magistrates Court, an application to extend time for compliance. That application came before the Federal Magistrates Court on 9 October 2012 and was opposed by the present respondent because the applicants had not sought a stay of the Local Court judgment. Over that opposition, the court extended the time for compliance until 6 November 2012 on condition that the applicants seek a stay of the Local Court judgment. The indication was, it seems, that there would likely be a further extension if such a stay were ordered.

1. From the applicants' point of view, therefore, there is the detriment that, in order to avoid committing an act of bankruptcy, they will have to satisfy the Local Court judgment that they say should have been set aside by the Common Law Division in the proceedings in respect of which they wish to appeal to this Court. That detriment will materialise, it seems, unless the judgment is stayed. From the respondents viewpoint, the only apparent detriment arising from a stay will be delay in enforcement of their judgment by bankruptcy proceedings or otherwise and therefore a deferral of their enjoyment of the fruits of their judgment.

1. In these respects, the balance of convenience favours the applicants.

1. In addition, refusal of the stay could, it seems, lead to bankruptcy of the applicants the consequences of which upon the continued availability to them of a cause of action in this Court would be more radical than those of the possible company winding up that was influential in the decision in Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737.

1. The applicants have shown circumstances warranting the exercise in their favour of the discretion to order a stay.

1. The orders are as follows:

(1) Order that the judgment of the Local Court made on 7 March 2012 in proceedings 2011/00286543 be stayed until determination of the pending summons for leave to appeal filed in this Court and, if leave is granted, until the determination of the appeal or, in any case, until earlier order of this Court.

(2) Order that the respondent to the notice of motion filed on 11 October 2012, pay the applicants' costs of that notice of motion.

1. In conclusion I would repeat what I said in the course of submissions, namely, that this is a very small claim and that parties should be urged to consider mediation or other means of resolving their differences so as to avoid what could be substantial further costs out of all proportion to the size and shape of the case itself.

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Decision last updated: 08 November 2012