Moon v Mun [2013] NSWCA 217

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Moon v Mun [2013] NSWCA 217 Hearing dates: 10 July 2013 Decision date: 10 July 2013 Before: Basten JA (at [1]); Barrett JA (at [12]); Ward JA (at [61] Decision: 1. (a) Allow the appeal. (b) Set aside the orders made by Schmidt J on 24 August 2012. (c) In place thereof: (i) allow the appeal to the Supreme Court; (ii) set aside the orders made in the Local Court on 7 March 2012; (iii) order that the application by the plaintiff in the Local Court be dismissed; (iv) order that the plaintiff pay the costs of the defendants in the Local Court. (d) Order the defendants to pay the plaintiff's costs in the Common Law Division. 2. Return the matter to the Local Court to be determined according to law. 3. Order that the respondent pay the applicants' costs in this Court. 4. Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW) with respect to the costs of the appeal to the Common Law Division and the proceedings in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - orders of the Local Court in its civil jurisdiction striking out defence and directing judgment for the plaintiff - appeal to the Supreme Court - appeal dismissed - further appeal (by leave) to the Court of Appeal - no clear explanation by the magistrate why the orders were made - the primary judge addressed the possibilities of judgment in default of defence and judgment on admissions - the primary judge rejected the first possibility and concluded that the judgment was a judgment on admissions - no sufficient basis for that conclusion - rationale for the magistrate's decision was unexplained - the defence showed that significant parts of the claim were in dispute - no occasion for judgment on admissions or any other form of judgment precluding trial on the merits - observations on the need for precise identification of the relevant question of law where appeal on a question of law only is permitted and to identify what material can properly be relied upon in answering that question. Legislation Cited: Civil Procedure Act 2005 (NSW), ss 55-60, Local Court Act 2007 (NSW), ss 39(1), 40 Supreme Court Act 1970 (NSW), ss 75A, 101(2)(r) Uniform Civil Procedure Rules 2005 (NSW), rules 16.6, 16.7, 17.7 Cases Cited: Arnold v Forsythe [2012] NSWCA 18 Ash v Hutchinson & Co (Publishers) Ltd [1936] Ch 489 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 Ellis v Allen [1914] 1 Ch 904 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Gregory's Transport Pty Ltd v Ray's Haulage Pty Ltd [2008] NSWCA 333 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Moon v Mun [2012] NSWSC 973 Re the Trade Marks Act 1955-1958 and the Registered Trade Marks "Certina" and "Certina DS" (1970) 44 ALJR 191 Termijtelen v Van Arkel [1974] 1 NSWLR 525 Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56 Category: Principal judgment Parties: Young Soo Moon - First Applicant Sung Shim Lim - Second ApplicantSoon Sil Mun - Respondent Representation: Mr J C Hewitt - Applicants Mr M W Young SC - Respondent Dahan Lawyers - Applicants KDL Legal - Respondent File Number(s): 2012/286045 Decision under appeal Citation: Moon v Mun [2012] NSWSC 973 Date of Decision: 2012-08-24 00:00:00 Before: Schmidt J File Number(s): 2012/99913