Supreme Court New South Wales Medium Neutral Citation: KR & C Co Ltd v Soon Ok Hwang (No 3) [2022] NSWSC 292 Hearing dates: 10 December 2021 Date of orders: 17 March 2022 Decision date: 17 March 2022 Jurisdiction: Common Law Before: Rothman J Decision: (1) The defendant's Motion of 26 February 2021, seeking to set aside the registration of Korean Judgments by the Court on 8 December 2020, is dismissed; (2) The defendant shall pay the plaintiff's costs of and incidental to the proceedings. Catchwords: PRIVATE INTERNATIONAL LAW – Foreign Judgments Act – Registration – Motion to set aside – defendant not served with initiating process in foreign country – defendant appeal in foreign on merits – motion dismissed. Legislation Cited: Foreign Judgments Act 1991(Cth), ss 6(1), 7(2) Cases Cited: Bao v Qu; Tian (No 2) (2020) 102 NSWLR 435; [2020] NSWSC 588 Benefit Strategies Group Inc v Prider (2005) 91 SASR 544; [2005] SASC 194 Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 Kok v Resorts World at Sentosa Pte Ltd (2017) 323 FLR 95; [2017] WASCA 150 KR & C Co Ltd v Soon Ok Hwang [2021] NSWSC 164 KR & C Co Ltd v Soon Ok Hwang [2021] NSWSC 551 KR & C Co., Ltd v Soon Ok Hwang (Seoul Central District Court (Korea), 11 November 2011, unrep) Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Sunland Group Limited v Gold Coast City Council (2021) 95 ALJR 922; [2021] HCA 35 Category: Principal judgment Parties: KR & C Co Ltd (Plaintiff/Respondent) Soon Ok Hwang (Defendant/Applicant) Representation: Counsel: V Cha – Solicitor (Plaintiff/Respondent) P Berg (Defendant/Applicant) Solicitors: H & H Lawyers (Plaintiff/Respondent) Cambridge Lawyers (Defendant/Applicant) File Number(s): 2020/267016 Judgment 1. HIS HONOUR: On 7 December 2020, the Court made orders (hereinafter "the Registration Judgment") registering a foreign judgment of the Supreme Court of Korea dated 9 April 2020 and of the Seoul Central District Court dated 26 November 2019. The Registration Judgment orders the defendant in the proceedings to pay an amount of over KRW 100 million. 2. The defendant, by Motion notice of which was filed on 26 February 2021, seeks to have the Registration Judgment set aside and its enforcement stayed. The Motion also seeks that the plaintiff pay the defendant's costs. 3. It is necessary to trace some of the procedural history that has given rise to the motion because it informs the Court's jurisdiction and, to the extent that there is jurisdiction, the exercise of any discretion. The parties have filed a joint chronology of events and the facts cited in that chronology are sufficient to understand the issues between the parties. I summarise the most relevant aspects of that chronology. 4. On 22 January 1997, the defendant issued a promissory note (hereinafter "the first promissory note") with a value of KRW 65 million (approximately $78,000 (AUD)), which was payable on 13 May 1997. 5. On 7 May 1997, the defendant issued a further promissory note (hereinafter "the second promissory note") with a value of KRW 40 million and payable on 7 July 1997. 6. A third promissory note, to the value of KRW 50 million, was issued and was payable on 29 July 1997. The original holder of the promissory notes, Woosang Construction Company, applied for a loan to Wuyang Mutual Savings and Finance Company (hereinafter "Wuyang Bank"), which became the holder of the three promissory notes. 7. On 14 November 1998, Wuyang Bank assigned the three promissory notes to Hanareum Mutual Savings and Finance Company (hereinafter "Han Bank"). 8. On 30 December 2000, Han Bank commenced proceedings against the defendant in the Daegu District Court in South Korea to seek payment of the debts under the three promissory notes in the sum of KRW 155 million. Those proceedings will hereinafter be referred to as the "2000 Proceedings". 9. On 21 April 2001, the service of the originating process for the 2000 Proceedings was effected. All the foregoing facts were alleged by the plaintiff and disputed by the defendant. As is clarified later in these reasons, I find on the basis of the Affidavits read for the plaintiff/respondent that the events occurred. 10. The remainder of the events are not disputed. On 3 July 2001, the Daegu District Court in Korea ordered the defendant to pay Han Bank the debt of KRW 155 million plus statutory interest (hereinafter "the 2001 Judgment"). The 2001 Judgment became final and enforceable on 7 August 2001. 11. On 31 December 2001, the plaintiff acquired all rights and liabilities of Han Bank, including the rights under the 2001 Judgment due to its merger with Han Bank. On 8 June 2011, the plaintiff filed an application in the Seoul Central District Court in Korea seeking to extend the time to enforce the 2001 Judgment. The originating process was served on the defendant by way of public notice, a procedure allowed in Korea. 12. On 11 November 2011, the Seoul Central District Court in Korea pronounced judgment in favour of KR & C, the plaintiff/respondent. [1] That judgment will, hereinafter, be referred to as the "2011 Judgment". On 26 November 2011, the 2011 Judgment was served on the defendant, by way of public notice. 13. In March 2018, the plaintiff discovered the defendant's interest in real property in Australia and, on 20 September 2018, filed an application in the Seoul Central District Court seeking to extend the time to enforce the 2011 Judgment. On 21 November 2018, the Seoul Central District Court ordered the extension of time to enforce the 2011 Judgment (hereinafter "the 2018 Judgment"). The terms of that judgment are more detailed and will be summarised later. On 3 May 2019, the plaintiff sent a letter of demand to the defendant for the debt under the 2011 Judgment. 14. On 20 June 2019, defendant filed an appeal in respect of the 2011 Judgment and the 2018 Judgment in the Seoul Central District Court. On 26 November 2019, a Full Court of the Seoul Central District Court dismissed each of the four grounds of appeal (hereinafter referred to as "the District Court Appeal Judgment" or "First Appeal Judgment") and affirmed the 2011 Judgment and the 2018 Judgment. 15. On 12 December 2019, the defendant appealed the District Court Appeal Judgment to the Supreme Court of Korea. On 9 April 2020, the Supreme Court of Korea dismissed the defendant's appeal and affirmed the 2011 Judgment in favour of the plaintiff (hereinafter "the Korean Supreme Court Judgment"). 16. On 14 September 2020, the plaintiff commenced proceedings in this Court seeking registration of the 2011 Judgment, the District Court Appeal Judgment, and the Korean Supreme Court Judgment. On 8 December 2020, both the District Court Appeal Judgment and the Korean Supreme Court Judgment were registered in New South Wales. 17. In December 2020, the plaintiff discovered that the defendant's real property in Lidcombe had been sold on 27 November 2020. On 14 December 2020, the plaintiff served the judgment of this Court, being the Registration Judgment that registered the foreign judgments, together with the Notice of Registration on the defendant. On 18 December 2020, the defendant filed and served a Notice of Motion for Security for Costs (hereinafter "the 2020 Motion"). On 4 January 2021, the time allowed in the Registration Judgment to set aside the Registration Judgment expired. 18. On 15 January 2021, the plaintiff sent a letter of demand to the defendant for the debt under the Registration Judgment. 19. On 25 February 2021, the Court granted leave for the defendant to file an application to set aside the Registration Judgment. [2] On 26 February 2021, the defendant filed the Motion seeking to set aside the Registration Judgment (hereinafter "the 2021 Motion") with which the Court is currently dealing. 20. On 29 April 2021, the Court (Harrison AsJ) conducted the proceedings on the 2020 Motion, being the application for security for costs. As a result of those proceedings, the Court ordered that the 2020 motion be dismissed and that the defendant pay the plaintiff's costs on an ordinary basis. [3] 21. On 6 July 2021, the defendant filed, and served on the plaintiff, the written submissions for the 2021 Motion and, on 5 August 2021, the plaintiff filed, and served on the defendant, the written submissions for the 2021 Motion. The 2021 Motion, which is the matter now being dealt with by the Court, was heard on 10 December 2021. 22. At the hearing, the plaintiff was granted leave to file in Court, and rely upon, an Amended Summons dated 3 November 2020. The amendment relates to some typographical issues; the email address of the plaintiff's solicitors; and the calculation of post-judgment interest. The Summons, filed 14 September 2020 and the Amended Summons filed in Court each seeks the registration of the 2011 Judgment as affirmed in the District Court Appeal Judgment and the Korean Supreme Court Judgment. For reasons of which the Court, as presently constituted, is unaware, the Registration Judgment, which orders the defendant to pay the sums outlined, refers only to the two appeal judgments. 23. It is necessary to set out the terms of the Registration Judgment of 7 December 2020, entered on 8 December 2020. It is in the normal form associated with judgments or orders of the Court. Under the heading TERMS OF JUDGMENT/ORDER is the following statement: 24. "Judgment: 25. Soon Ok Hwang, First Defendant 26. is to pay 27. KR & C Co., Ltd, First Plaintiff 28. the sum of 29. Claim amount: $20,000,000.00 30. Interest claimed: $102,821,844.42 31. Filing fees: $3175.00 32. Service fees: $0.00 33. Solicitors [sic] fees: $0.00 34. Other costs: $0.00 35. TOTAL: $122,825,19.42" 36. Under the foregoing statement, the judgment/order is in the following terms: "THE COURTS ORDERS THAT: (1) The above Judgment is registered in this Court under the Foreign Judgments Act 1991 (Cth) in: (a) Claim amount: Korean Won (KRW) pursuant to the Judgments given in the Seoul Central District Court dated 26 November 2019 and the Supreme Court of Korea dated 9 April 2020. (2) The Defendant is to play the Plaintiff's costs of this Summons in the sum of $3,175.00 (AUD). (3) The Defendant may, within 21 days after service upon them of notice of the registration, apply to: (a) set aside the registration; and (b) stay the enforcement of the Judgment. (4) Judgment may be enforced to the full extent of the terms that are to be registered. (5) Judgment may also be enforced for the reasonable costs of and incidental to this application. THE COURT NOTES: (6) This judgment comprises of the following sums: (a) KRW 20,000,000.00 being the Principal Sum; (b) KRW 4,602,666 being the interest on the Principal Sum pre-21 April 2001; and (c) KRW 97,753,425 being the interest on the Principal Sum post-21 April 2001 and accruing thereafter at the rate of KRW 13,698.63 per day." 1. The order is signed A. Chang (L.S.), Assistant Registrar, dated 8 December 2020 and stamped with a seal of the Court. 2. Other aspects of the circumstances of the proceedings in Korea and the judgments registered should be noted. The 2001 Judgment was for an amount of KRW 155 million, plus interest of KRW 20 million. The 2011 Judgment gave judgment for a lesser amount as a result of the plaintiff waiving part of the original claim, for which the plaintiff applied. 3. Notwithstanding the terms of Article 5-2 of the Trial of Small Claims Act (Korea), the Korean Court determined that it was lawful and appropriate to waive that part of the judgment and made orders accordingly. [4] 4. Relevant to the issue raised by the defendant in the attempt to set aside the registration of the foreign judgment, it is necessary to deal with the aspect of service of the proceedings in Korea. It should be noted that there is no contest that the defendant issued three promissory notes, and that the monies obtained as a consequence of those promissory notes were received by the defendant and were not paid at the time they were due. 5. Under Korean law a promissory note may be assigned by a holder to another person simply by signing the back of the note. It is a negotiable instrument. Further, the promissory notes were used by the Woosang Construction Company as the basis for a loan upon which interest was paid. As a result, the promissory notes were assigned to the Wuyang Bank. 6. When the Han Bank, which had been assigned the promissory note by Wuyang Bank, initiated proceedings against the defendant in the Daegu District Court, seeking repayment of the debt involved in the repayment of the monies advanced as a consequence of the promissory notes, the Daegu District Court, as is the requirement in Korea, served a copy of the originating process on the defendant. That service was effected on 19 April 2001. [5] Service is required by Articles 176 and 178 of the Civil Procedure Act (Korea) to be by mail of a certified copy or duplicate. [6] 7. The record of proceeding confirms that service was effected on 21 April 2001. The defendant did not defend the action, nor did she appear at the hearing. On 3 July 2001, the Daegu District Court issued the orders already identified. They became final and enforceable on 7 August 2001, by the effluxion of time. The current plaintiff merged with Han Bank in or about December 2001. It is the successor in title to Han Bank. 8. As earlier stated, on 8 June 2011, the plaintiff filed an application in the Seoul Central District Court seeking to extend the time to enforce the 2001 Judgment. There were no assets of the defendant identified in Korea. 9. Because of the non-existence of assets in Korea, the plaintiff reduced its original damages claim from KRW 155 million to KRW 20 million (approximately $22,939 (AUD)). The application of 8 June 2011 was served, in accordance with the rules applicable to proceedings in the Seoul Central District Court, on the defendant, by way of public notice. This was done on 21 October 2011. The orders were then made by the Court on 11 November 2011 and the defendant did not appear. 10. Again by public notice, the judgment was served on the defendant on 26 November 2011. Ordinarily, the plaintiffs (or their predecessors) would have had 10 years in which to enforce the 2011 Judgment (or any other judgment) and this would have expired on or about 10 November 2021. During that time and up until 2019, the plaintiffs, or their predecessors, were investigating the defendant's assets and resources. 11. In or about March 2018, the plaintiff discovered that the defendant had interests in real property in Australia. On 20 September 2018, the plaintiff filed an application in the Seoul Central District Court seeking to extend the time in which it could enforce the 2011 Judgment. That extension of time was granted on 21 November 2018, at which time the Seoul Central District Court affirmed the 2011 Judgment in substance and effect. That is the judgment earlier referred to as the 2018 Judgment. 12. The defendant appealed the 2011 Judgment and the 2018 Judgment in the Seoul Central District Court. The Court heard the merits of the proceedings. 13. The appeal was allowed to be taken because the 2011 Judgment was served by way of public notice on 26 November 2019 and was dismissed on the basis that the defendant's substantive argument on the appeal had no merit. The defendant appealed again to the Supreme Court of Korea. The terms of the District Court Appeal Judgment, being a judgment of the Full Court of the Seoul Central District Court in Korean and a certified English translation are before this Court. So too are the terms of the judgment and reasons for judgment of the Supreme Court of Korea (the Korean Supreme Court Judgment). 14. The basis for the Motion to set aside the registration of the foreign judgments in this Court is the public notice of 21 October 2011 purported to effect service on the defendant of the plaintiff's application of 8 June 2011 in the Seoul Central District Court. The applicant/defendant submits that the provisions of s 7(2) of the Foreign Judgments Act 1991 (Cth) (hereinafter "the Act") govern the issue and require the Court to set aside the registration of the judgment. In particular, the defendant relies upon s 7(2)(a)(v) of the Act. 15. The relevant terms of s 7 should be recited: "7 Setting aside a registered judgment (1) A party against whom a registered judgment is enforceable, or would be enforceable but for an order under section 8, may seek to have the registration of the judgment set aside by duly applying to the court in which the judgment was registered, or (where applicable) a court in which the judgment was registered under Part 6 of the Service and Execution of Process Act 1992, to have the registration of the judgment set aside. (2) Where a judgment debtor duly applies to have the registration of the judgment set aside, the court: (a) must set the registration of that judgment aside if it is satisfied: … (v) that the judgment debtor, being the defendant in the proceedings in the original court, did not (whether or not process had been duly served on the judgment debtor in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable the judgment debtor to defend the proceedings and did not appear" 1. Essentially, the defendant submits that because service of the application in 2011 was effected by way of public notice, which did not come to the attention of the defendant in sufficient time to enable her to defend the proceedings and the defendant did not appear, the terms of s 7(2)(a)(v) of the Act require the Court to set aside the registration of the judgment. 2. The evidence before the Court, which was not the subject of cross-examination, establishes that the defendant did not see the public notice in relation to the application on 8 June 2011, which gave rise to the judgment of the Seoul Central District Court on 11 November 2011, in these reasons called the 2011 Judgment. 3. It was also established, on the evidence before the Court, upon which there was also no cross-examination, that the Daegu District Court served the originating process that gave rise to the 2001 Judgment, being the judgment of the Daegu District Court of 3 July 2001. As already indicated, the extension of time for the enforcement of that 2001 Judgment was filed before the end of the 10-year limitation period otherwise applying, and gave rise to the 2011 Judgment. 4. It is also uncontested that, despite the lack of personal service of the 2011 application, the defendant in these proceedings, being the applicant on this Motion, commenced the proceedings that gave rise to the District Court Appeal Judgment and the Korean Supreme Court Judgment. The relevant court in each of those proceedings heard and determined the merits of the matters raised by the defendant on appeal, relating to the orders that ought to be made by the court against the defendant. 5. As expressed by Campbell J at the interlocutory stage of these proceedings, there is some consternation regarding the delay between the 2001 proceedings that gave rise to the 2001 Judgment and the enforcement of the debt and the registration of the judgment in Australia. The Court, as a result of the evidence adduced in these proceedings, is satisfied that the delay has been occasioned by the absence of assets of the defendant in Korea and the investigation process that ultimately led, in 2018, to the discovery that the defendant possessed assets, including real property, in Australia. 6. Essentially, relying on the terms of s 7(2) of the Act, the applicant/defendant submits that she was the defendant in the proceedings in the original court, being the proceedings that gave rise to the 2011 Judgment; that she did not receive notice of those proceedings at all, or in sufficient time to enable her to defend the proceedings, notwithstanding that public notice is service in accordance with the law of Korea; and, that she did not appear. As a consequence, the Court is required to set aside the registration of the Judgment obtained in 2011. Further, if one is having regard to the appeal proceedings, they were commenced by the defendant/applicant in these proceedings and, therefore, the Court was, again, required to set aside the judgment that had been registered because the applicant here was not the defendant in the appeal. 7. It is necessary to deal with other provisions of the Act. The provisions of s 6 of the Act allow a person who is a judgment creditor under a foreign judgment to apply to an appropriate court within six years after the date of the judgment or, where there has been proceedings by way of appeal against the judgment, six years from the date of the last judgment in those proceedings. [7] 8. Once the foreign judgment is registered, it is enforceable as a judgment of the court in which it is registered and the provisions of the Australian court, including the Service and Execution of Process Act 1992 (Cth), apply to the enforcement of the judgment. An appropriate court is relevantly defined as the Supreme Court of the State. 9. Once the applicant for registration proves the procedural matters necessary to have a judgment of the particular kind registered, the court is required to register the judgment. 10. The relevant terms of s 7 have been recited above and I do not repeat them. Nor do I need, at this stage, to summarise them. The provisions of s 10 of the Act prohibit the taking of proceedings for the recovery of an amount payable under a judgment that is registrable, other than by way of registration of the judgment. 11. As a consequence of the interplay of ss 7 and 10 of the Act, as summarised above, if the judgments of the Korean courts, being registrable, about which there is no controversy, were set aside on the basis agitated by the defendant/applicant, then they could never be enforced in Australia. 12. In construing the terms of s 7 of the Act, it is necessary, on modern authority, to interpret the provisions so that they achieve harmonious goals and in a manner that achieves the purposes of the legislation. [8] The judgment in Project Blue Sky has been applied and emphasised too many times to recite. It is sufficient to reiterate that the purpose of the legislation is derived from the terms of the statute as is the legal meaning of its provisions. The High Court has said: "[24] The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, '[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute' (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision 'by reference to the language of the instrument viewed as a whole', and 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'." [9] (citations omitted) 1. From the terms of the Act, one can glean a number of objects: minimisation of multiple proceedings and duplication of proceedings; avoidance of inconsistent results to proceedings; reciprocity of enforcement of judgment; and, comity. The last-mentioned purpose seems to be the least important. 2. The efficiency of the process of litigation associated with the minimisation of multiple proceedings and the avoidance of the duplication of proceedings to any extent greater than is absolutely necessary and/or the avoidance of inconsistent results seems to be the most important aspect and they serve the administration of justice. It would be inconsistent with those purposes if, as a result of a process that was involved in Korea and resulted in a judgment that was registrable, a person otherwise entitled to a money judgment would be forever prevented from enforcing that judgment in the only place that the debtor has assets. 3. Dealing with the specific purpose of the provisions of s 7(2)(a)(v) of the Act, its obvious purpose is to ensure that defendants against whom a judgment has issued cannot be forced to abide by that judgment in Australia, in circumstances where they have been denied natural justice. 4. Despite the superficial attraction of the submission of the defendant/applicant as to the effect of s 7(2)(a)(v) of the Act, in my view, a proper construction of the provision does not achieve the result for which she contends. 5. Before moving to analyse the terms of the Act and, in particular, s 7(2)(a)(v), it is necessary to refer to a number of definitions in s 3 of the Act. The most relevant definitions are: "country of the original court means the country in which the original court is situated", in this case South Korea; "appeal includes a proceeding by way of discharging or setting aside a judgment or an application for a new trial or a stay of execution"; "judgment" is relevantly confined to civil judgment; "judgment debtor" is a person against whom a judgment is given; "original court" means a court by which the judgment was given [noting the definite article, which refers back to a judgment to which the term "original court" relates]. 1. Next, it is necessary to note that the provisions of s 6(1)(a) of the Act provide a time limit of six years after the date of the judgment. By operation of s 6(1)(b) of the Act, where there have been proceedings by way of appeal against the judgment, the date of the last judgment in those proceedings is the date from which the 6-year limit commences. 2. The only other provision, which has not already been mentioned and requires noting, is s 7(3)(a)(ii), (iii) and (iv). Section 7(3) of the Act deals with jurisdiction of the original court, otherwise dealt with in s 7(2)(a)(iv) of the Act. 3. Nevertheless, sub-paragraphs (ii), (iii) and (iv) of s 7(3) of the Act make clear that a judgment debtor may be a defendant, but may also be a plaintiff in the proceedings in the original court. Further, the terms of s 6(1)(b) of the Act suggest that the term "proceedings", which is a term not otherwise defined, has been used in the Act in slightly different ways. 4. In dealing with the submissions of the defendant/applicant in agitating the Motion, the Court raised with the defendant/applicant the circumstance that the District Court Appeal Judgment of 26 November 2019 and the Korean Supreme Court Judgment of 9 April 2020 were registered under the order issued by the Registrar on 8 December 2020. In each of those appeals the defendant/applicant before this Court was not the defendant. The defendant/applicant in this Court was the appellant/plaintiff in each of the appeals heard and determined respectively on 26 November 2019 and 9 April 2020. 5. The defendant/applicant submitted that the proper interpretation of s 7(2)(a)(v) required that the judgment debtor be the defendant in the proceedings in the original court. Because the judgment debtor was the defendant only in relation to the 2001 Judgment (3 July 2001), the 2011 Judgment (26 November 2011) and the third first instance judgment (the 2018 Judgment), which were not registered by the orders of this Court on 8 December 2020, the registration of the District Court Appeal and Korean Supreme Court Judgments by the Court was required to be set aside. 6. In my view, such an interpretation would operate wholly contrary to the purpose of the legislation. If that interpretation were correct, then the 2001 judgment, the 2011 Judgment and the 2018 Judgment, each of which is a registrable judgment under the Act, either could never be registered or, if they were to be registered, would be required to be set aside. Moreover, once set aside, the judgment could never be otherwise enforced. [10] 7. Rather, the provisions of s 7(2)(a)(v), which require the Court to set aside registration, apply only in circumstances where the judgment debtor was the defendant in the proceedings in the original court. The original court, as referred to above, means the court by which the judgment was given. 8. The original court, in relation to the two judgments that are registered, is the Full Court of the Seoul Central District Court and the Korean Supreme Court in each of which proceedings the defendant/applicant was the appellant/plaintiff and was not the defendant. In those circumstances, the provisions of s 7(2)(a)(v) are not applicable to the District Court Appeal Judgment and the Korean Supreme Court Judgment and, therefore, do not operate to require the Court to set aside the registration of those judgments. 9. The construction favoured above does not prevent the Court, in circumstances where there has been a denial of procedural fairness, from setting aside the registration under s 7(2)(b) of the Act. The provisions of s 7(2)(a) of the Act require the Court to set aside the judgment, where one of those criteria apply. 10. If there were to have been a denial of natural justice in such a way that a meritorious defence to the claim for money had not been heard and determined on the merits, then it may be that the enforcement of the judgment of the original court would be "contrary to public policy" and therefore governed by the provisions of s 7(2)(b) of the Act. 11. In this case, there has been no denial of procedural fairness or natural justice. The evidence before the Court establishes that the 2001 Judgment arose out of the 2000 Proceedings, which was served, personally, on the defendant. Even if that were not the case, it being a fact disputed by the defendant, the appeal proceedings before the Full Court of the Seoul Central District Court dealt with the merits of the claim against the defendant/applicant and affirmed the 2011 Judgment. The Korean Supreme Court also dealt with the merits of the case agitated by the defendant/applicant. There has been no denial of procedural fairness. 12. If s 7(2)(a)(v) of the Act required that the judgment debtor was, in all cases, the defendant in the proceedings in the original court, then the provisions of s 7(3)(a)(ii) would be nonsensical. The provisions of s 7(2)(a)(v) operate only when the judgment debtor was the defendant in the original court of the judgment that has been registered. 13. One of the errors in the construction agitated by the defendant/applicant to the Court is that the defendant/applicant maintained that she was the defendant in the original court, being the proceedings that led to the 2001 and 2011 Judgments. However, neither the 2001 Judgment nor the 2011 Judgment have been registered. 14. The original court refers to the court by which the registered judgment was given. As neither the judgment issued in 2001 nor the judgment issued in 2011 have been registered, the term "the original court" in s 7(2)(a)(v) does not relate to those judgments. 15. It is arguable, although the defendant/applicant did not argue in this way, that the District Court Appeal Judgment, which was an appeal from the 2011 and 2018 Judgments, is a proceeding in which, initially, the defendant/applicant was the defendant in the proceedings and is the judgment debtor. In other words, if the Full Court of the Seoul Central District Court is in fact part of the same court as the Seoul Central District Court, then the defendant/applicant was the defendant in the proceedings that gave rise to the 2011 and 2018 Judgment. 16. The 2018 Judgment was a judgment to extend time to enforce the 2011 Judgment. The 2011 Judgment arose out of proceedings in which the defendant/applicant did not receive notice at all, or, relevantly, in sufficient time to enable the judgment debtor to the defend the proceedings and in which the defendant/applicant did not appear. 17. This raises two other issues which were mentioned, in passing, in relation to the 2001 Judgment by Counsel for the defendant/applicant. By operation of the provisions of s 6(1)(a) of the Act, the 2001 Judgment could not now be registered, because six years have passed from the date of judgment. Indeed, six years had passed from the date of judgment in the 2011 Judgment. 18. The 2011 Judgment, notwithstanding that it was an extension of time for enforcement, ordered the defendant to pay the plaintiff KRW 20 million together with interest and costs. [11] The order of the Seoul Central District Court on 26 November 2019 was simply that the defendant's appeal be dismissed and that the defendant bear the costs. 19. Interestingly, and in a manner comparable to the provisions that exist in Australia, the Full Court of the Seoul Central District Court explains that a defendant is not at fault if the defendant is not aware of the service of a judgment, and has time from the date upon which they become aware of the proceedings and judgment to argue the merits of the matter. [12] 20. The order of the Korean Supreme Court was that the appeal to it be dismissed, and the defendant bear the costs of the appeal. [13] 21. Given that each of the appeal judgments make orders, the effect of which is to dismiss the appeal and order costs, it is at least arguable that the effect of the Registration Judgment is to enforce the 2011 Judgment. I will deal, therefore, with the time limit applicable to the registration of the 2011 Judgment. 22. The appeal to the Full Court of the Seoul Central District Court resulted in a judgment on the merits as to whether the claim for the money had been fully substantiated; whether the 2011 Judgment was inconsistent with the 2001 Judgment because it sought a lesser amount; whether the 2018 Judgment inappropriately interfered with the finality of the 2001 and/or 2011 Judgments; whether there was a violation of the principle of good faith and due diligence in agitating the claims in 2011 and/or 2018; and on the calculation of interest, including default interest. Each of those matters were dealt with on the merits and the appeal was dismissed. 23. The effect of the Registration Judgment is that the defendant/applicant is required to pay the amount set out in that judgment. The Registration Judgment is an order of this Court, a superior court of record, and, until such time as the order is set aside, a party bound by the order is required to abide by it. As a consequence, the registration of the two Appeal Judgments, each of which dismiss the appeal against the 2018 Judgment and the 2011 Judgment, is that the defendant/applicant is required to pay the amounts specified in the order, plus any interest payable in accordance with the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW) from the date of the Registration Judgment, i.e., 8 December 2020. 24. If, the Court, as presently constituted, were incorrect in its conclusion that s 7(2)(a)(v) does not require a judgment debtor to be a defendant in the proceedings in the original court, or incorrect in determining that the proceedings in the original court, being the courts that determined the appeals that have been registered so that the defendant/applicant was not a defendant in those "proceedings", then, in my view, the defendant/applicant still does not succeed on the argument based upon s 7(2)(a)(v) of the Act. 25. There are two aspects that are required to be dealt with to reach that conclusion. First, the two appeals, one to the Full Court of the Seoul Central District Court and the other to the Korean Supreme Court, were each appeals from the 2011 and 2018 Judgments. The 2011 Judgment was the first instance judgment that reduced the value of the lawsuit for the principal amount from KRW 155 million to KRW 20 million. It is that lesser amount which is sought to be enforced pursuant to the Registration Judgment. 26. Ordinarily, six years having passed since 2011, the 2011 Judgment would not be able to be registered, in and of itself. However, as a result of the definition of appeal and the provisions of s 6(1)(b) of the Act, time does not run in relation to the registration of the 2011 and 2018 Judgments until the date of the judgment in the Supreme Court of Korea, being 9 April 2020. As a consequence, registration could be effected in relation to each of the 2011 and 2018 Judgments until 8 April 2026. 27. Further, even though the 2011 and 2018 Judgments were the subject of service by public notice and the defendant/applicant was unaware of the proceedings, the defendant/applicant became aware of the proceedings and received notice of those proceedings "in sufficient time to enable the judgment debtor to defend the proceedings". The judgment debtor defended the proceedings by an application on appeal, which dealt with the merits of any matter that the defendant/applicant sought to raise against the orders made in the 2011 and 2018 Judgments. 28. The term "proceedings" in the latter part of s 7(2)(a)(v) of the Act includes proceedings by way of appeal. 29. Thus, as would be the case in New South Wales, if a default judgment issued and a defendant, otherwise unaware of the proceedings in which the default judgment issued, applied to discharge or set aside the default judgment, the judgment debtor in such circumstances would be required to show a good defence. The Court, if it were not persuaded that there existed a good defence, would refuse to set aside the default judgment. This is precisely what has occurred in Korea. 30. Here, the defendant, having been bound by a judgment and having become a judgment debtor, made application, by way of appeal, to discharge or set aside or quash the default judgment (if default judgment be the appropriate term). The defendant/applicant was refused that relief because she was unable to show a basis upon which the merits would have been decided differently. 31. Such an interpretation accords with the unstrained ordinary words of the section, if that which is examined is the money Judgment in 2011 or 2018, and accords with the purpose and objects of the Act. The term "defend the proceedings" where used in s 7(2)(a)(v) refers to the whole of the proceedings, and includes a defence by a Motion to discharge, to set aside or to appeal. 32. The applicant/defendant also relies on the provisions of s 7(2)(b) and the enforcement of the judgment being contrary to public policy. Two issues are raised in that respect: the delay from 2001; and the amount and rate of interest. The defendant/applicant relies on each issue separately as well as the cumulative effect of the two. 33. The interest rate ordered by the Korean courts is a rate prescribed by legislative instrument. The rates of interest commence to apply from 1997. At one point, the rate reaches 25%, which, by current Australian standards, is extremely high. 34. However, the interest rate in Australia in 1990 was 17.5% and the Supreme Court rates would have been 21.5% for pre-judgment interest, and 23.5% for post-judgment interest. In the absence of evidence that, by Korean standards, the interest rates charged were at penalty levels, I am not prepared to draw such an inference. In Korea, the interest rates charged on judgments or amounts owing is, like in New South Wales, calculated by reference to the rate set by its central bank. 35. It is well-established that Australian courts will set aside registration of a foreign judgment only on the basis of clear evidence of an inconsistency with public policy. I have earlier mentioned issues associated with judgments obtained by fraud or by denying a judgment debtor natural justice. [14] 36. Further, the registration process, including an application to set aside, is not the occasion to review the merits of the foreign judgment registered or to be registered. Nor is the Court's task one that compares the merits of the foreign law or its courts with our own. The efficacy of the foreign judgment is to be judged by the law of the foreign country. [15] 37. The delay has been explained. The 2011 Judgment, which first ordered this amount to be paid, was appealed against, and gave rise to the District Court Appeal Judgment and the Korean Supreme Court Appeal Judgment. The time, for purposes of the Act, does not conclude until 2026. 38. Even if one were to deal with the passage of time since 2001, the delay was caused, on the evidence before the Court, by the absence of any assets of the defendant/applicant in Korea and the investigation of overseas assets. While the delay, if it were in Australia, may not have been remedied, as it was under Korean law, or at all, that is not the issue that informs whether the registration was contrary to public policy. 39. In the words of W Martin CJ: [18] "Different terminology has been used to describe the narrow and limited range of circumstances in which enforcement will be refused because it would contravene public policy. Expressions used include: violation of 'some fundamental principle of justice, some prevalent conception of good morals, some deep rooted tradition of the common weal'; • if 'enforcement were to offend some moral, social or economic principle so sacrosanct in [the forum's] eyes as to require its maintenance at all costs and without exception'; and • 'where the offence to public policy is fundamental and of a high order'." [16] (Footnotes omitted.) 1. Neither cumulatively nor separately do the issues raised by the defendant/applicant cause the Court to form the view that enforcement of the judgments would be contrary to public policy. The defendant/applicant borrowed money in exchange for promissory notes. She has had use of that money since 1997. The plaintiff/respondent has been denied its money and the ability to earn interest on it. 2. For the foregoing reasons, the Court dismisses the Motion of the defendant/applicant. The Court makes the following orders: 1. The defendant's Motion of 26 February 2021, seeking to set aside the registration of Korean Judgments by the Court on 8 December 2020, is dismissed; 2. The defendant shall pay the plaintiff's costs of and incidental to the proceedings. ********** Endnotes 1. KR & C Co., Ltd v Soon Ok Hwang (Seoul Central District Court (Korea), 11 November 2011, unrep). 2. KR & C Co Ltd v Soon Ok Hwang [2021] NSWSC 164. 3. KR & C Co Ltd v Soon Ok Hwang [2021] NSWSC 551. 4. Affidavit of Oka Cho, sworn 5 March 2021, at [23]; Court Book, p 252-271. 5. Affidavit of Hyunjin Min, affirmed 5 March 2021, at [19], Court Book, pp 186-251 and of Oka Cho of 5 March 2021 at [13] at Court Book p 255. 6. Affidavit of Oka Cho of 5 March 2021 at [9], Court Book p.255. 7. Foreign Judgments Act 1991 (Cth), s 6(1). 8. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[70] and [78] (McHugh, Gummow, Kirby and Hayne JJ). 9. Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 at [24] (French CJ and Hayne J); see also Sunland Group Limited v Gold Coast City Council (2021) 95 ALJR 922; [2021] HCA 35 at [18] (Gordon J). 10. Foreign Judgments Act, s 10, supra. 11. Certified translation of the 2011 Judgment, Court Book, pp 45-54. 12. Certified translation of the District Court Appeal Judgment, Court Book, p 65-75. 13. Certified translation of the Korean Supreme Court Judgment, Court Book, pp 88-90. 14. Bao v Qu; Tian (No 2) (2020) 102 NSWLR 435; [2020] NSWSC 588. 15. Kok v Resorts World at Sentosa Pte Ltd (2017) 323 FLR 95; [2017] WASCA 150 at [15]-[18]; Benefit Strategies Group Inc v Prider (2005) 91 SASR 544; [2005] SASC 194 at [77]. 16. Kok v Resorts World at Sentosa Pte Ltd, supra, at [18] (Martin CJ, Murphy and Beech JJA agreeing). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 March 2022