You, Jun Won v Oakwood Sydney Pty Ltd

[2019] NSWSC 1766

Supreme Court

New South Wales

Medium Neutral Citation:	You, Jun Won v Oakwood Sydney Pty Ltd [2019] NSWSC 1766
Hearing dates:	6 December 2019
Date of orders:	06 December 2019
Decision date:	06 December 2019
Jurisdiction:	Common Law
Before:	Cavanagh J
Decision:	(1) Pursuant to s 7 of the Foreign Judgments Act 1991 (Cth), the judgment of the court entered 11 January 2019 in favour of the plaintiff against the defendant in the sum of ₩314,188,998.72 (South Korean won) is set aside. (2)   I order that the plaintiff pay the costs of the motion.
Catchwords:	PRIVATE INTERNATIONAL LAW — foreign judgments and orders — statutory registration of judgments — setting aside registration of foreign judgments
Legislation Cited:	Foreign Judgments Act 1991 (Cth), ss 7, 9
Category:	Procedural and other rulings
Parties:	Jun Won You (Applicant/Defendant) Oakwood Sydney Pty Ltd (ACN 132 365 309) (Respondent/Plaintiff)
Representation:	Counsel: Mr J R Young (Applicant/Defendant)   Solicitors: Kim & Associates (Applicant/Defendant) DaX Legal (Respondent/Plaintiff)
File Number(s):	2018/315776
Publication restriction:	None

REVISED EX TEMPORE Judgment

1. By way of a motion filed on 5 September 2019, the defendant, Jun Won You, seeks an order that pursuant to s 7 of the Foreign Judgments Act 1991 (Cth) (“the Act”), the judgment of the Court entered on 11 January 2019 against the defendant in the sum of ₩314,188,998.72 (South Korean won) be set aside, that is, the defendant seeks an order that the registration of the foreign judgment previously entered against him is set aside.

2. The defendant appears by his counsel, Mr J R Young. Mr Cheon appears for the plaintiff.

3. The defendant relies on his own affidavit sworn 3 September 2019. Mr Cheon, on behalf of the plaintiff, did not object to that affidavit.

4. The matter has previously been before the Court on 31 July 2019 when Ierace J made orders setting aside a writ of levy on the basis that the notice of registration was not served upon the defendant. As Mr Young indicated today, that issue has been now resolved and the notice of registration has been properly served upon the defendant.

5. However, the defendant now says that the registration of the foreign judgment must be set aside under s 7(2) of the Act because:

“(1) The judgment was registered for an amount greater than the amount payable under it at the date of registration (as referred to in s 7(2)(ii) of the Act);

(2) The judgment has been reversed on appeal or otherwise set aside in the Courts of the country of the original court (as referred to in s 7(2)(vii) of the Act).”

6. As set out in s 7(1) of the Act, a party against whom a registered judgment is enforceable may seek to have the registration of the judgment set aside by duly applying to the Court in which the judgment was registered to have the registration of the judgment set aside. The defendant does that by way of the current application.

7. As set out in s 7(2) of the Act, where a judgment debtor duly applies to have the registration of the judgment set aside, the Court must set the registration of that judgment aside if it is satisfied of any of the matters referred to in s 7(2)(a).

8. The defendant has brought the application as required by s 7(1) of the Act and accordingly I must set aside the registration of the judgment if I am satisfied of any of the matters referred to in s 7(2)(a).

9. I am uncertain of the background to the dispute in South Korea, but it does not matter at this time. The dispute was the subject of a judgment in the Incheon District Court Civil Division 11 in South Korea, on 13 July 2017 for the amount of ₩246,356,502 plus some additional amount calculated at a rate of interest of 15 per cent. However, there was an appeal from that judgment to the Seoul High Court. The Seoul High Court then entered a judgment on 21 August 2018. There followed an appeal to the Supreme Court of South Korea leading to a judgment of 29 November 2018.

10. The judgment of the Seoul High Court is for a different amount than the judgment of the Incheon District Court. The judgment of the Supreme Court of South Korea appears to be that the appeal was dismissed. Some of the pages annexed to the affidavit of Mr You are in Korean. The reasons for the judgment are set out in five lines in the translated judgment.

11. As the amount of the judgment in the District Court was changed by the Seoul High Court, and as the registration of the foreign judgment in this court was based on the Incheon District Court figure, it is plain that the registration is in respect of the wrong amount. The judgment that was registered was for an amount greater than the amount payable as at the date of the registration. Further, the judgment on which the plaintiff relied for registration purposes was set aside and a judgment for a different amount was entered.

12. Mr Young directed me to an affidavit dated 12 October 2018 in support of the original summons in which the deponent, Seoung Jin Goo stated that the Incheon District Court judgment had not been varied, set aside, discharged or satisfied (see paragraph 18(f) of the affidavit). The circumstances in which this statement was made is not known, but having regard to the information available to the Court on this application it appears that that statement was incorrect.

13. In the circumstances I am satisfied that the registration of the judgment must be set aside either having regard to s 7(2)(a)(ii) or s 7(2)(a)(vii) of the Act.

14. I raised with Mr Cheon, the solicitor for the plaintiff, whether he accepted that the judgment had been registered for an incorrect amount and that the amount had been varied on appeal. He agreed that that was correct but said that he requested an adjournment so that an application could be made to vary the amount of the judgment. He suggested that that might happen by way of an amendment to the summons and that it would not be efficient to have to start again.

15. The defendant opposes an adjournment of this application, noting that the motion was filed on 5 September 2019 and that the first occasion the plaintiff raised the prospect of making its own application was this morning just before the matter was called on.

16. Mr Young appropriately directed the Court’s attention to s 9 of the Act, noting at least that it is possible that the plaintiff may wish to avail itself of s 9 in any future application. As set out in s 9 of the Act, if the registration of judgment is set aside under subparagraph 7(2)(a)(ii), the court in which the judgment was registered must, on the application of the judgment creditor, order that the judgment be registered in respect to the amount payable under the judgment at the date of the application.

17. Mr Young submits that any application which might be pursued by the plaintiff under s 9(1) would not be successful because the application would not be based merely on the judgment being set aside under s 7(2)(a)(ii), that is the judgment would be set aside on both subparagraphs (ii) and (vii).

18. I raised with Mr Young whether that construction of s 9(1) of the Act is necessarily the only available construction. He submitted that it was the correct construction. It is not necessary for me to consider that issue further at this time. I can only say that it is a matter for the plaintiff whether it wished to make such an application under s 9 in all the circumstances. It has not done so.

19. Further, Mr Cheon did not indicate that it would be doing so. Rather, the effect of his submission was that the plaintiff may want to amend the summons or may want to bring some other application in the hope of not having to start again. Mr Young accepted that the plaintiff could start again, that is file a fresh summons, so any orders made today do not prevent the plaintiff from doing that if it so chooses.

20. Mr Young submits that I would not grant the adjournment, having regard to the fact that the application has been on foot since September, that there is no indication from the plaintiff as to the type of application that might be brought or that it would have any hope of success, and that no notice was received of the plaintiff’s desire to have the matter adjourned until this morning.

21. I accept the defendant’s position. The plaintiff has had ample opportunity to determine whether it wished to make some form of alternative application which could have been heard at the same time as the defendant’s application.

22. Further, whilst the Court understands that the plaintiff may not wish to start the process again, and understands that the issue is really whether the amount of the judgment which has been registered is correct rather than whether any judgment should be registered at all, the problem arises because of the plaintiff’s errors rather than any error on the part of the defendant.

23. The defendant’s application was listed for hearing today and has been listed for hearing for some considerable time. In the circumstances, I do not consider that the hearing of the defendant’s application should be adjourned so as to give the plaintiff some further opportunity to consider whether it might wish to bring some application itself.

24. Accordingly, I make the orders sought in the motion. Pursuant to s 7 of the Foreign Judgments Act 1991 (Cth), the judgment of the court entered 11 January 2019 in favour of the plaintiff against the defendant in the sum of ₩314,188,998.72 (South Korean won) is set aside.

25. I order that the plaintiff pay the costs of the motion.

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Decision last updated: 10 December 2019