Yoon v Song [2000] NSWSC 1147

New South Wales Supreme Court

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 Foreign Judgments Act 1991 (Cth) LEGISLATION CITED : Foreign Judgments Regulations 1992 No. 321 Foreign Judgments Act 1973 (NSW) Constitution 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 CASES CITED : 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 venture company between a company partially owned and controlled by him, namely the Dong Bang Ocean Fisheries Company Ltd ("Dong Bang") and the North Korean Fisheries Authority through the intermediary of the defendant, it being agreed that if the negotiations were successful and the joint venture eventuated, the defendant would receive 10% of the profits. He further claimed that towards the end of the negotiations the defendant told him that before the North Koreans would finalise the joint venture they required the plaintiff to supply a styrofoam manufacturing machine for refrigeration purposes, and he thereupon paid the money to the defendant for him to use to purchase the machine. The negotiations came to nothing, the styrofoam manufacturing machine was never bought, the plaintiff sought the return of the money, but the defendant failed to return it. 4 The defendant on the other hand claims that the judgment was obtained by fraud by way of misrepresentations to the South Korean courts. He claims that the moneys were not paid by the plaintiff but by Dong Bang, that it was not paid to the defendant, but to Lobana Company Limited ("Lobana SK") which was a South Korean company owned by his brother, a South Korean resident, which was doing the negotiations on behalf of Dong Bang and which employed the defendant as a consultant; and that the money was not paid for the purchase of a styrofoam manufacturing machine but as recompense for services rendered and expenses incurred by the defendant on behalf of Lobana SK in the course of the negotiations. 5 During the hearing I admitted copies of the judgments of the Seoul District Court Western Branch and of the Seoul Appellate Court each with notarial certificates attached (Exs. A and B) and said I would give my reasons at a later stage. In each case there is a document apparently in the Korean language with what appear to be seals thereon and I note also that the documents contain perforations at their feet, which other evidence in the case describes, is a feature of South Korean court documents. Attached to these documents is an affidavit of Yim Kwang-Kyu in which he identifies the document as the Sentence (i.e. judgment) of the court and annexes a translation, and also attached is a notarial certificate relating to the affidavit. Having regard to s 150(1)(f) Evidence Act 1995 I am satisfied that the documents purport to contain an imprint of the seal (which includes a stamp - see Dictionary) of a body established under the law of a foreign country and it is therefore to be presumed, unless the contrary is shown, that the documents were duly sealed as they purport. In addition Mr Yim's affidavit satisfies me that he examined the originals, and s 157 accordingly makes them admissible. 6 Before dealing with the merits of the plaintiff's case it is necessary to consider the defendant's submission that the present action is not maintainable because of the operation of the Act which, except for s 21, commenced on the date it received the Royal Assent (s 2) i.e. 27 June 1991, and provides in Part 2 (ss 5-10) for the reciprocal enforcement of judgments by way of registration. 7 By virtue of s 5(1), the Regulations may provide for Part 2 to extend to a particular foreign country in which case a judgment of that foreign country may be registered in the Federal Court or a State or Territory Supreme Court, as the case may be, and enforced as if it had originally been given in the court in which it is registered (s 6); and no proceedings for the recovery of an amount payable under such a judgment other than proceedings by way of registration of the judgment are to be entertained by an Australian court (s 10). 8 Section 5(8) is as follows: "This Part does not apply to: (a) a money judgment given by a superior court of a country before the day on which the regulations extend this Part in relation to that country; or (b) a money judgment given by an inferior court before the day on which the regulations extend this Part in relation to that court; or (c) a non-money judgment of a particular kind given in a court in proceedings of a particular kind before the day on which the regulations apply this Part to non-money judgments of that kind given in that court in proceedings of that kind; unless: (d) the judgment was given by a court of New Zealand or the United Kingdom; or (e) the judgment was, immediately before that day, registrable in the Supreme Court of a State or Territory under a law of that State or Territory."