Oakwood Sydney Pty Ltd v You

[2020] NSWSC 583

Supreme Court

New South Wales

Medium Neutral Citation:

Oakwood Sydney Pty Ltd v You [2020] NSWSC 583

Hearing dates:

13 May 2020

Date of orders:

13 May 2020

Decision date:

13 May 2020

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) An order for the foreign judgment dated 12 September 2018 of the Seoul Central District Court of the Republic of Korea, by which it was adjudged that Jun Won You, Nonghyup Bank Co., Ltd, and Hana Bank Co. Ltd jointly pay money to Oakwood Sydney Pty Ltd (ACN: 132 365 309) be registered under Part 2, s 6(2) of the Foreign Judgments Act 1991 (Cth) for:

 

(a) the sum of W133,045,513 Korean Won.

 

(2) The defendant pay the costs of and incidental to the preparation of the application for the obtaining of the order for registration of that judgment.

 (3) The plaintiff is to pay the defendant’s costs of and incidental to defence of the summons and the costs of and incidental to the preparation of written submissions and the appearance of counsel today, given the unsuccessful pressing of paragraph 1(b) in the summons.

Catchwords:

PRIVATE INTERNATIONAL LAW — foreign judgments and orders — registration of foreign judgment — registration of judgment sum — order seeking interest not pressed

  COSTS — party/party — exceptions to general rule that costs follow the event — plaintiff to pay defendant’s costs of and incidental to defence of the summons and costs of and incidental to the preparation of written submissions and the appearance of counsel today, as relief sought in summons not pressed

Legislation Cited:

Foreign Judgments Act 1991 (Cth)

Category:

Principal judgment

Parties:

Oakwood Sydney Pty Ltd (Plaintiff)
Jun Won You (Defendant)

Representation:

Counsel:
J R Young (Defendant)

  Solicitors:
D Cheon (Plaintiff)
S Kim (Defendant)

File Number(s):

2020/15927

Publication restriction:

Nil

Judgment

1. The plaintiff filed a summons on 16 January 2019 seeking an order for registration of a foreign judgment obtained by it in the Seoul Central District Court in the Republic of Korea on 12 September 2018. The relief claimed in the summons sought, firstly, registration of the judgment sum set out in the judgment, appended to the affidavit of Mr Goo, affirmed on 16 January 2020, as well as the costs of and incidental to the application for the order and of registration of the judgment.

2. However the summons sought an additional order (1(b)), which appears to be a type of ongoing claim for interest on the judgment sum after judgment was given. It is this order that was the subject of contention by the defendant.

3. The defendant appears by his counsel Mr Young today. Mr Cheon solicitor appears for the plaintiff.

4. The plaintiff relies upon two affidavits of Mr Goo, affirmed 16 January 2020 and 16 April 2020 respectively. There were orders made for the supply of written submissions in support of and in response to the plaintiff's application. I am not being critical of this, but the plaintiff's solicitor chose not to file written submissions until after those provided by Mr Young dated 8 May 2020.

5. The succinct submissions provided by Mr Young, as well as addressing the relevant legislative requirements, indicated provisional consent to the orders of substance sought in paragraphs 1(a) and 1(c) of the summons, that is the order for registration of the judgment in the specified sum in Korean won, as well as the relevant confined costs order for costs incidental to the application for registration of the judgment.

6. I am satisfied that the requirements of s 6 of the Foreign Judgments Act 1991 (Cth) have been met by the material filed in respect of the judgment sum referred to in paragraph 1(a) of the summons.

7. What Mr Young indicated his client did not consent to was the unsupported assertion of an entitlement to ongoing interest after the judgment was in fact given (including interest to that date) in September 2018.

8. In relation to that claim, the summons stated as follows:

“1(b), where by the law of the Republic of Korea and as ordered by the Seoul Central District Court of that jurisdiction, interest becomes due in the amount of 67,832,406.72 Korean won, being the interest amount from the date of judgment to the date of registration, being 16 October 2018, with interest being calculated at 15% per annum, being 101,242.40 Korean won per day."

9. Mr Young submitted there was no basis for the assertion of entitlement to interest and, indeed, it seemed to be contrary to the judgment sum specified with clarity in the judgment of the Seoul Central District Court.

10. Further to the position taken by the defendant in respect of this part of the summons, Mr Young objected to paragraph 11 of Mr Goo's affidavit of 16 January 2020, where a baseless assertion about entitlement to interest is made by Mr Goo without citing any authority for such an assertion. Mr Cheon conceded, properly, that given the form of that material in the affidavit and the lack of basis for it, he could not press that paragraph of the affidavit. That had the result that there was no material at all before me that supported the relief sought in paragraph 1(b) of the summons.

11. A practical approach was taken by Mr Cheon to the position and in the end result, the relief pressed was confined to paragraphs 1(a) and 1(c) of the summons.

12. I turn now to the question of costs. Mr Young submitted that whilst the defendant recognised that the costs of and incidental to the application for the registration of the judgment should be ordered in favour of the plaintiff, there were additional costs incurred by the defendant that were unnecessary and were caused by the pressing, up to a short while ago, of order 1(b) set out in the summons, an order to which the plaintiff was not entitled. Mr Young argued that the plaintiff ought to pay the costs of and incidental to the summons and the costs of his having to appear today and costs incidental to today's appearance on the application, because incurring of those costs was the result of the inappropriate pressing for order 1(b) of the summons.

13. Mr Cheon indicated that there was little he could say in response to that application for an additional costs order of that nature. Clearly the defendant is entitled to his costs of opposing order 1(b) and I accept would not have appeared and gone to the trouble of written submissions if order 1(b) was not sought. The defendant should have those costs.

Orders

1. An order for the foreign judgment dated 12 September 2018 of the Seoul Central District Court of the Republic of Korea, by which it was adjudged that Jun Won You, Nonghyup Bank Co., Ltd, and Hana Bank Co. Ltd jointly pay money to Oakwood Sydney Pty Ltd (ACN: 132 365 309) be registered under Part 2, s 6(2) of the Foreign Judgments Act 1991 (Cth) for:

1. the sum of W133,045,513 Korean Won.

2. The defendant to pay the costs of and incidental to the preparation of the application for the obtaining of the order for registration of that judgment.

3. The plaintiff is to pay the defendant's costs of and incidental to defence of the summons and the costs of and incidental to the preparation of written submissions and the appearance of counsel today, given the unsuccessful pressing of paragraph 1(b) in the summons.

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