Yoon v Lee - [2017] NSWSC 1338

Supreme Court

New South Wales

Case Name:	Yoon v Lee
Medium Neutral Citation:	[2017] NSWSC 1338
Hearing Date(s):	21 September 2017
Date of Orders:	21 September 2017
Decision Date:	21 September 2017
Jurisdiction:	Equity
Before:	Darke J
Decision:	Orders made pursuant to s 98 of the Conveyancing Act 1919 (NSW).
Catchwords:	LAND LAW – mortgages – statutory redemption under Conveyancing Act 1919 (NSW), s 98 – mortgagor claims that funds secured by mortgage granted in 1995 were never advanced – mortgagee out of the jurisdiction – any claim by mortgagee for repayment statute barred – whether all amounts due under mortgage have been paid MORTGAGES AND SECURITIES – mortgages – duties, rights and remedies of mortgagor – redemption – mortgagor claims that funds secured by mortgage granted in 1995 were never advanced – mortgagee out of the jurisdiction – any claim by mortgagee for repayment statute barred – whether all amounts due under mortgage have been paid CIVIL PROCEDURE – service of originating process – service outside the jurisdiction – whether defendant personally served – whether leave to proceed should be granted where no appearance by defendant – Uniform Civil Procedure Rules 2005 (NSW), r 11.8AA – leave to proceed granted
Legislation Cited:	Conveyancing Act 1919 (NSW), s 98 Limitation Act 1969 (NSW), ss 42(1)(a), 54 Uniform Civil Procedure Rules 2005 (NSW), rr 6.3, 10.20, 10.21, 11.4, 11.7, 11.8, 11.8AA, 11.8AC, Sch 6
Cases Cited:	Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Ainsworth v Redd (1990) 19 NSWLR 78 Bulldogs Rugby League Club v Williams [2008] NSWSC 822 Nadinic v Drinkwater [2017] NSWCA 114 Re Bochenek [2011] NSWSC 435 Re Estate of Angelidis; Sotiropoulos (2004) 12 BPR 22,661; [2004] NSWSC 1184 Rossiter v Core Mining Ltd [2015] NSWSC 360
Category:	Principal judgment
Parties:	Soohan Yoon (Plaintiff) Soon Ja Lee (Defendant)
Representation:	Counsel: Mr J Leaver (Plaintiff) Solicitors: Shad Partners (Plaintiff)
File Number(s):	2017/169303
Publication Restriction:	None

Judgment – ex tempore

By a Summons filed on 6 June 2017, the plaintiff seeks declarations and orders in relation to a registered mortgage given in 1995 over a property in Croydon. The plaintiff complains that the money supposed to be advanced pursuant to the mortgage was never advanced, such that there has been a total failure of consideration. The mortgage is sought to be set aside and cancelled.
The defendant lives in South Korea. There is evidence that she has been served with the Summons, the affidavit in support of the Summons sworn by the plaintiff on 30 May 2017 (together with the exhibit to the affidavit), and a notice under Uniform Civil Procedure Rules 2005 (NSW), r 11.7.
The evidence of service is found in two affidavits sworn by the plaintiff's solicitor, Mr Shad, on 29 June 2017 and 15 August 2017, and an affidavit sworn by Mr Yunseok Lee (an accredited Korean/English translator) on 25 August 2017. Service of the documents was effected on 18 July 2017. The documents were delivered to the defendant at her…

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.

Continue reading Yoon v Lee

Details

AGLC: Yoon v Lee [2017] NSWSC 1338
Case: [2017] NSWSC 1338
Decision Date: 21 September 2017

CaseChat Overview and Summary

Yoon brought proceedings against Lee seeking a declaration that a mortgage granted in 1995 was void and unenforceable. The mortgage was granted as security for a loan of $100,000. Yoon claimed that the funds were never advanced and the mortgagee, Lee, was out of the jurisdiction. Yoon argued that any claim by Lee for repayment was statute barred and that all amounts due under the mortgage had been paid. Lee did not appear in the proceedings and it was unclear whether he had been served with the originating process. The court had to determine whether Lee had been personally served and whether leave to proceed should be granted under the Uniform Civil Procedure Rules 2005 (NSW).

The court found that there was insufficient evidence to determine whether Lee had been personally served. However, the court noted that there was evidence that Lee had been given notice of the proceedings and had an opportunity to respond. The court also considered whether leave to proceed should be granted under rule 11.8AA of the Uniform Civil Procedure Rules 2005 (NSW). The court found that there were exceptional circumstances that warranted granting leave to proceed, including the fact that Yoon had made a genuine attempt to serve Lee and that Lee had an opportunity to respond to the proceedings.

The court granted leave to proceed and found that the mortgage was void and unenforceable. The court found that the funds secured by the mortgage were never advanced and that any claim by Lee for repayment was statute barred. The court also found that all amounts due under the mortgage had been paid. The court made a declaration that the mortgage was void and unenforceable and that Yoon was entitled to have the mortgage discharged.

No further orders were made.

Orders