Oakwood Sydney Pty Ltd v You

[2019] NSWSC 1047

Supreme Court

New South Wales

Medium Neutral Citation:

Oakwood Sydney Pty Ltd v You [2019] NSWSC 1047

Hearing dates:

31 July 2019

Date of orders:

31 July 2019

Decision date:

31 July 2019

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1)   Declare that the Notice of Registration was not served upon the defendant;

 

(2)   The Writ of Levy on the property of the plaintiff issued on 16 May 2019 be set aside;

 (3)   The Plaintiff/Respondent is to pay the costs of the Defendant/Applicant.

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – for irregularity – judgment of the Incheon District Court in Korea registered in the Supreme Court – currency noted incorrectly – correct currency clear from judgment as a whole – application rejected

  CIVIL PROCEDURE – service – whether effected – conceded it was not effected – writ of levy on property set aside

Category:

Procedural and other rulings

Parties:

Jun Won You (Applicant/ Defendant)
Oakwood Sydney Pty Ltd (Respondent/ Plaintiff)

Representation:

Counsel:
J Young (Applicant/ Defendant)
D Cheon (Respondent/ Plaintiff)

  Solicitors:
Kim and Associates (Applicant/ Defendant)
Dax Legal (Respondent/ Plaintiff)

File Number(s):

2018/315776

Judgment

1. HIS HONOUR: This is an application brought by Jun Won You (“the applicant/defendant”) seeking orders in relation to a judgment of the Incheon District Court in Korea dated 13 July 2017, which was registered 2019 by this Court on 11 January pursuant to the Foreign Judgments Act 1991 (Cth).

2. The applicant/defendant seeks orders that the judgment entered into on 11 January 2019 be set aside; a declaration that the notice of registration was not served upon the defendant; a declaration that the amount of the judgment is not in accordance or in the amount of judgment given in the District Court of the Republic of Korea; an order that enforcement of the judgment be stayed pending further order of the Court; an order that the writ of levy on the property of the plaintiff issued on 16 May 2019 be set aside; and finally, an order for costs.

3. On the hearing of the matter this morning the applicant pursues only orders 1 and 5, that is, that the judgment be set aside and that the writ of levy be set aside.

4. The applicant, in my view correctly, submits that there is no need for a declaration that the notice of registration was not properly served upon the applicant/defendant, and the plaintiff/respondent concedes that it was not properly served.

5. The basis of the application to set aside the judgment is that, as filed, it expresses the claimed amount and the interest claimed with a dollar symbol immediately preceding the numerals, thus indicating that those two amounts are sums of dollars. However, the judgment also includes five notes. The first note reads:

“The above judgment is in Korean won (KRW) pursuant to the judgment given in the Incheon District Court of the Republic of Korea dated 13 July 2017 and registered in this Court pursuant to the Foreign Judgments Act 1991 (Cth).”

6. Also relevant, in my view, is note 2:

“The defendant is to pay the plaintiff’s costs of this summons in the sum of $3,690 (AUD).”

7. There is an apparent conflict between the references to the amounts that appear alongside the words “total”, “claim amount” and “interest claimed” on the one hand, and on the other hand the reference in note 1 to the judgment being in Korean won.

8. It seems to me that when one reads the judgment as a whole, it is clear that the amounts alongside the words “claim amount”, “interest claimed” and “total” are intended to be amounts of Korean won, having regard to the terms of note 1 and also the fact that the amount indicated in note 2 is followed by the initials in capitals “AUD”.

9. That being so, and that being the only reason advanced or submission advanced as to why the judgment should be set aside, I decline the application for that order.

10. In view of the conclusion I have come to in respect of the judgment, it is appropriate to make the second order sought, which I do.

11. Accordingly, I make orders 2 and 5 as sought, which I will re-number as orders 1 and 2.

12. I make the following orders:

(1)   Declare that the Notice of Registration was not served upon the applicant/defendant;

(2)   The Writ of Levy on the property of the respondent/plaintiff issued on 16 May 2019 be set aside;

(3)   The respondent/plaintiff is to pay the costs of the applicant/defendant.

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Decision last updated: 15 August 2019