Sun v Hojunara International Group (No 2) - [2013] NSWSC 1050

Supreme Court

New South Wales

Medium Neutral Citation: Sun v Hojunara International Group (No 2) [2013] NSWSC 1050
Hearing dates: 26/7/2013
Decision date: 26 July 2013
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Under section 56A of the Limitation Act 1969 (NSW) I extend the limitation period mentioned in section 14B of that Act to 5 August 2013.
(2) I grant leave to the plaintiffs to file a statement of claim naming Duk In Kim and Dave Jeon as defendants, provided a statement of claim is filed in the registry on or prior to 5 August 2013.
(3) I order that the costs of this application stand as costs in any proceedings commenced pursuant to order 2 hereof.

Catchwords: LIMITATION OF ACTIONS - application for extension of time to bring proceedings under s 56A Limitation Act 1969 (NSW)
Legislation Cited: Corporations Act 2001 (Cth)
Limitation Act 1969 (NSW)
Cases Cited: Carey v The Australian Broadcasting Corporation [2010] NSWSC 709; 77 NSWLR 136
Carey v The Australian Broadcasting Corporation [2012] NSWCA 176; 290 ALR 348
Urbanchich v Drummoyne Municipal Council (1988) A Def R 50-035; (1991) Aust Torts Reports 81-127
Category: Procedural and other rulings
Parties: Wan-Jen Sun (first plaintiff)
Yueh-Chiu Sunpan (second plaintiff)
Hojunara International Group Pty Ltd (defendant)
Duk In Kim (proposed second defendant)
Dave Jeon (proposed third defendant)
Representation: Counsel:
A. Douglas-Baker (plaintiffs)
B. Pierce (proposed second defendant)
In person (proposed third defendant)
Solicitors:
Goodwyn Legal (plaintiffs/applicants)
CSY Legal (proposed second defendant)
In person (proposed third defendant)

File Number(s): 2011/405938

EX TEMPORE Judgment

CAMPBELL J: By notice of motion filed on 27th May 2013 the plaintiffs seek an order extending the limitation period for commencing proceedings against Duk In Kim, as the second defendant, and Dave Jeon, as the third defendant, in these proceedings. Other ancillary relief is sought.

The proceedings are proceedings brought in defamation. The plaintiffs operate a restaurant in Chinatown which asserts it was defamed by material published on a website operated by the first defendant, a corporation now in liquidation. The alleged defamatory material was said to have been published on various dates between 5th August 2010 and 9th March 2011.

The proposed defendants are persons who are said to be "moderators" of the website; that they occupied this role came to the plaintiffs actual knowledge through a verified statement in answer to interrogatories filed on 14th March 2013.

I should say straight away that the respondents to the motion argue that this information was known to the plaintiffs earlier, and, if not known, was capable of being known before the expiration of the limitation period. Mr Jeon is the person who swore the affidavit verifying the statement in answer to interrogatories. In answer to 3(b) he said that he and Mr Duk In Kim were persons responsible for moderating the forums on the website between 1st August 2010 and 1st March 2011.

The limitation period in defamation is fixed by s 14B Limitation Act 1969 (NSW) in the following…

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.

Keep reading for free

Create a free CaseChat account to read Sun v Hojunara International Group (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] NSWSC 1050
Decision Date: 26 July 2013

CaseChat Overview and Summary

The case of Sun v Hojunara International Group (No 2) involved a dispute between Sun and Hojunara International Group regarding the latter's alleged failure to deliver goods as promised. The matter was heard in the Supreme Court of New South Wales. The primary issue before the Court was whether Sun's application for an extension of time to bring proceedings should be granted, as they sought to bring the claim beyond the statutory limitation period.

Sun contended that their failure to bring the proceedings within the limitation period was due to their inability to ascertain the identity of Hojunara International Group's directors, which was necessary to properly serve the proceedings. They relied on section 56A of the Limitation Act 1969 (NSW), which allows for an extension of time if the plaintiff can demonstrate that they were prevented from taking proceedings by disability or other sufficient cause. The Court was required to determine whether Sun had provided sufficient evidence to support their claim that they were unable to identify the directors, and whether this constituted sufficient cause under the Act.

In its decision, the Court found that Sun had not provided adequate evidence to demonstrate that they were unable to identify the directors of Hojunara International Group. The Court held that the onus was on Sun to establish that the alleged disability was a sufficient cause to prevent them from taking proceedings within the limitation period. As Sun failed to provide sufficient evidence to support their claim, the Court dismissed their application for an extension of time.

As a result, Sun's application for an extension of time to bring proceedings was dismissed, and they were not permitted to bring their claim beyond the statutory limitation period. The Court's decision emphasised the importance of providing sufficient evidence to support claims of disability or other sufficient cause under section 56A of the Limitation Act 1969 (NSW).

Orders