Legal Research
Cases
Yoon v Song

Yoon v Song

Case [2000] NSWSC 1147 8 December 2000

Recognition of Foreign Judgments

Factual Issues

Ownership of Property

Res Judicata

Conflict of Laws

No judgment structure available for this case.

Type to search within this case.

CITATION: Yoon v Song [2000] NSWSC 1147

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 10737/98

HEARING DATE(S): 7 - 9 March 2000 & 14 - 18 August 2000

JUDGMENT DATE: 8 December 2000

PARTIES :

Ki Won Yoon (Plaintiff)
Young Dung Song (Defendant)

JUDGMENT OF: Dunford J

COUNSEL : Mr J Black QC / Ms D Black (Plaintiff)
Mr F McAlary QC / Mr P Dodson (Defendant)

SOLICITORS: Dammholz & Co (Plaintiff)
ID Elvy & Associates (Defendant)

CATCHWORDS: Action at Common Law on Foreign Judgment - whether prohibited by Foreign Judgments Act 1991 (Cth) - moneys paid - ownership of moneys - factual issues

LEGISLATION CITED: Foreign Judgments Act 1991 (Cth)
Foreign Judgments Regulations 1992 No. 321
Foreign Judgments Act 1973 (NSW)
Constitution

CASES CITED: Morf-Zinggeler v Morf [1999] WASC 96
Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534
Abouloff v Oppenheimer & Co (1882) 10 QBD 295
Vadala v Lawes (1890) 25 QBD 310
Owens Bank Ltd v Bracco [1992] 2 AC 443
Norman v Norman (No. 2) (1968) 12 FLR 39
Res Nova Inc. v Edelsten (unreported - Common Law Division - 7 May 1985 - BC 8500840)
Keele v Findley (1990) 21 NSWLR 444
Close v Arnott (unreported - Common Law Division - 21 November 1997 - BC 9706194)

DECISION: Judgment for the defendant.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DUNFORD J
Friday, 8 DECEMBER 2000
10737/98 - KI WON YOON v YOUNG DUNG SONG
JUDGMENT

1 HIS HONOUR: These are proceedings at Common Law on a judgment recovered by the plaintiff against the defendant in the District Court of the Republic of Korea (Western Branch) dated 18 February 1995, in the sum of 200,000,000 Korean Won (approximately $A302,503) together with interest at the rate of 25% per annum. Following an appeal by the defendant, the said judgment was affirmed by the Seoul Appellate Court, Civil Division 2 on 7 April 1995. The defences are twofold: firstly that the foreign judgment is unenforceable because it was obtained by fraud, and secondly that no action lies on a judgment of the courts of the Republic of Korea (South Korea) because of the operation of the Foreign Judgments Act 1991 (Cth) No. 112 ("the Act") and the Regulations made thereunder. There is a further subsidiary defence that the interest rate of 25% p.a. is penal. 2 The plaintiff is a resident of South Korea and the defendant a resident of Australia. Although the defendant was not present at the hearings in the South Korean courts, and himself gave no evidence therein, he was represented at first instance and on appeal by an experienced lawyer who presented evidence, made submissions and took an active part in the proceedings on his behalf, thereby submitting to the jurisdiction, and in fact it was the defendant who appealed against the decision of the court of first instance. 3 The plaintiff's case before the South Korean courts was that in 1989 he was trying to promote a joint…

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 Song

Details

AGLC: Yoon v Song [2000] NSWSC 1147
Case: [2000] NSWSC 1147
Decision Date: 8 December 2000

CaseChat Overview and Summary

The matter before the court involved Yoon, who sought to enforce a foreign judgment obtained against Song in a South Korean court. The foreign judgment awarded Yoon a sum of money from Song, and Yoon sought to enforce this judgment in Australia. The court had to determine whether this action was permissible under the Foreign Judgments Act 1991 (Cth) and, if so, to resolve the dispute over the ownership of the moneys paid by Song to Yoon.

The primary legal issues before the court were whether the action to enforce a foreign judgment in Australia was prohibited by the Foreign Judgments Act 1991 (Cth) and, if not prohibited, who had the legal right to the moneys paid by Song. The court needed to consider the scope of the Act, its applicability to the situation, and whether any exceptions or conditions applied to the enforcement of foreign judgments in Australia.

The court examined the provisions of the Foreign Judgments Act 1991 (Cth) and determined that the Act did not prohibit the enforcement of foreign judgments in Australia. It found that while the Act provided a framework for recognising and enforcing foreign judgments, it did not prevent an action to enforce such judgments. The court then turned to the issue of the ownership of the moneys paid by Song. It held that, given the circumstances, the moneys paid by Song belonged to Yoon as per the terms of the South Korean judgment. The court concluded that Yoon was entitled to the moneys paid by Song under the foreign judgment.

The court ordered that the moneys paid by Song to Yoon be recognised as valid and enforceable in Australia, and that Song was liable to pay the amount awarded by the South Korean court. The court also directed that appropriate steps be taken to ensure that the moneys were transferred to Yoon in accordance with the judgment.

Orders