Ki Bun Kwon v Kun Il Cha [2013] NSWSC 1372

Supreme Court New South Wales

Medium Neutral Citation: Ki Bun Kwon v Kun Il Cha [2013] NSWSC 1372 Hearing dates: 10 September 2013 Decision date: 10 September 2013 Jurisdiction: Equity Division Before: White J Decision: Proceedings dismissed with costs. Catchwords: PROCEDURE - summary dismissal of proceedings - plaintiff improperly pleaded case - pleadings disclose no reasonable cause of action for relief sought - pleadings contain irrelevant and scandalous allegations - whether proceedings should be dismissed or statement of claim ought to be struck out with leave to replead Cases Cited: Ki Bun Kwon v Im In Duk (Court of Appeal, 3 November 2011, unreported) Young v Queensland Trustees Limited (1956) 99 CLR 560 Ogilvie v Adams [1981] VR 1041 Haller v Eyre [2005] QCA 224; [2005] 2 Qd R 410 Category: Principal judgment Parties: Ki Bun Kwon (Plaintiff) Kun Il Cha (1st Defendant) In Duk Im (2nd Defendant) Representation: Counsel: Plaintiff in person M Wong (1st Defendant) Solicitors: File Number(s): 2013/164201

Judgment 1HIS HONOUR: These proceedings were commenced by a summons filed on 28 May 2013. In the summons the plaintiff, Mrs Kwon, applied for an order extending a caveat over a property in Bankstown. She also sought the following order: "The Order for Statement of the Claim against Mr Kun Il Cha. The Plaintiff lent money to the Mr Kun Il, Cha, in 1979-1982. Mr. Cha bought as above Unit no 1. by Plaintiff's Money. But, he made 'The Title is his wife's name In Duk, Im'. It because, he didn't want pay back Plaintiff's money. If that money Value with now currency is up to $800,000. The Plaintiff want take his above Unit [xx/x-x, yyyyyyyy, yy] Bankstown". 2On 27 May 2013 Kunc J dismissed the plaintiff's application to extend the caveat over the Bankstown unit. His Honour said that the facts alleged by Mrs Kwon did not demonstrate that she had any caveatable interest in the Bankstown apartment. 3The summons was supported by an affidavit of the plaintiff. It is difficult to follow and contains many extraneous and irrelevant matters. But relevant to the claim apparently made in paragraphs 1 and 2 of the summons, the plaintiff deposed that she was divorced from the first defendant on 9 October 1984; that since December 1979 she had lent money to her husband, the first defendant, and a car. She deposed in her affidavit that she did not want to lend the money to him but did so under threat of violence. She deposed that the current value of the money she lent in 1979 was approximately $800,000. She then made irrelevant allegations, some of which were scandalous, involving allegations of murder and assault by persons who are not parties. Mrs Kwon deposed: "... I had Chased my ex-husband for I Claim my money back with now Currency It for 27yrs by the Family Law. But I lent my money to him it was not the both money So I can claim my Money by Statement of the Claim. Then I am applying by in here. In 2010, 7/August, 7.33am, I was asked to my ex-husband about it, I'd like get the Unit, at [xx/x-x, yyyyyyyy, yy] Bankstown NSW 2200, on the Mobile. Eventually, he Had Consented I can get that Unit. It because, he bought that it by my Money. Under his Consent, I went to as above Unit on 15/8/2010, 5pm, with one Korean lady Who lives in that area, ... Why I went to there? I like discuss that Unit Title. There is leased. (In Duck, Im [the second defendant] Collection pay rent from Tenant and she and my ex-husband, have dividing the Money now. My ex-husband was he didn't want pay back my money, so he made that Unit Title is his current wife's name In Duck, Im." 4The plaintiff then deposed to further irrelevant matters including an alleged assault on her by a third party. 5Kunc J stood the summons over before the Registrar for directions on 24 January 2013. In due course it came before me in the applications list on 2 August 2013. On that occasion Mrs Kwon was initially represented by a solicitor. He advised that the plaintiff was highly unwilling to accept his firm's advice and he was thinking of filing a notice of motion for leave to cease acting for the plaintiff. In fact no such leave was necessary. The solicitor did not file the summons as the plaintiff's solicitor. In any event, even if he had, he could have ceased acting by service on the plaintiff of a Notice of Intention of Ceasing to Act, followed by a Notice of Ceasing to Act. 6On 2 August 2013 I also received submissions from Mrs Kwon in person. On that day I said that I could not understand the plaintiff's claim. The defendant was not applying for an order for summary dismissal. In fact there was no appearance for the defendant on that day. It appeared to me that the claim, whatever it was, needed to be clearly pleaded. I ordered that the plaintiff file and serve a statement of claim by 30 August 2013 and directed that the matter be returnable before me today. I said that if the statement of claim showed that the plaintiff had an arguable case, then I would make further directions. It might be that the case might have to be transferred to another court. On the other hand, if it appeared from the statement of claim that the plaintiff did not have an arguable claim against any of the defendants, then I expected that I would dismiss the claim. 7It was quite clear from that time that when the matter was before the Court today I would give consideration to dismissing the proceedings summarily if it continued to appear that the plaintiff did not have an arguable cause of action. 8The plaintiff filed a statement of claim on 12 August 2013. It sought the following orders: "1. An order for Levy of Property at [xx/x-x, yyyyyyyy yy] BANKSTOWN NSW 2200. It because, Plaintiff lent money to the 1st defendant in 1979, Dec. $31,500. In 1979 was, a Brand New with 3 bed-rooms, separation House was $30,000, at Parramatta area. Not it is up to $800,000. That 1st defendant Kun il, Cha bought as above Unit, by Plaintiff's those Money. 2. An order for If get for Levy of Property as above Unit, the rest is approxi. $500,000. Then in future, if Plaintiff find 1st defendant's any Property or Cash it Over the $4,000, worth, Plaintiff can do 'Garnishee' of them in any time. 3. Costs & such further or other as the court thinks fit. Amount of claim $800,000, Filing fees $999, Service fees $500, Solicitor fees $1,000, Rent payment $50,400, a half $25,200, Total $852899." 9The claim for relief was purportedly supported by a number of paragraphs under the heading "Pleadings and Particulars". So far as those paragraphs have apparent relevance to the claim for relief, they stated as follows: "1. In 2010, 7th/August, 7.33am, on the Mobile phone the 1stdefendant said that 'Plaintiff can get that as above Unit.' But that Title is 1st defendant's current wife, 2nd defendant's name, In Duk, Im. Because, before that 1st defendant he didn't want pay back those debt, to the Plaintiff. That was why? He made it like that (1st defendant's Owner-Ship of that Property's document is in his Lawyer's office). ... 3. Plaintiff is on invalid Pensioner, no any money, therefore Plaintiff must be receive that Rent payment, by 1st defendant's Consent day of Issued the Property on 7th/8/2010. It's leasing 2, defendants receiving Rent since in2009, dividing a half, if calculate it; That the Rent payment is, for 36 months, and it approxi. $350, a week, it Totally $50,400, if a half is $25,200. So, they received $25,200, of each since that date. Therefore, an Order for that the 2nd defendant is must be pay to $25,200, to the Plaintiff as soon as possible." 10I have omitted allegations of threatened murder, of actual murder of plaintiff's nephews and friends, of threats and assault alleged to be committed by a third party. Those allegations are scandalous. They are not relevant to the claims for relief sought in the statement of claim. 11Today the first defendant appears by his solicitor Mr Wong. He seeks an order for summary dismissal of the proceedings. The second defendant sent a letter to the Registrar that was received on 30 August 2013. In that letter she enclosed a copy of a judgment given by the Court of Appeal on 3 November 2011 (Ki Bun Kwon v Im In Duk (Court of Appeal, 3 November 2011, unreported)). The Court of Appeal refused Mrs Kwon's application for leave to appeal from an order made on 15 March 2011 by the Judicial Registrar of the District Court dismissing proceedings commenced by Mrs Kwon in the Local Court and transferred to that Court. The order was made by the Judicial Registrar pursuant to r 13.4 of the Uniform Civil Procedure Rules. That Rule provides: "13.4 Frivolous and vexatious proceedings (cf SCR Part 13, rule 5; DCR Part 11A, rule 3; LCR Part 10A, rule 3) (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)." 12In its judgment the Court of Appeal states as follows: "2. The applicant commenced proceedings by filing a statement of claim in the Local Court. The statement of claim is not at all easy to follow, but the applicant apparently seeks an order for payment of $31,500 plus interest of some $500,000. The claim for relief appears to relate to events that occurred nearly thirty years ago while the applicant was married to her then husband. The statement of claim names the applicant's ex-husband as a party and also joins persons who are described as 'his new wife and her two adult sons' as defendants. The allegations in the statement of claim, insofar as they can be understood, include un-particularised claims of unlawful conduct including murder, attempted murder and assault. The relevance of these allegations to any claim for relief made by the applicant is not apparent. 3. It appears from 'the particulars' to the statement of claim that the applicant and her ex-husband were divorced in 1984 and that the Family Court, and perhaps in addition the Federal Magistrates Court, has dismissed many applications by the applicant to obtain relief against her ex-husband. ... 9. It is not entirely clear that either the Local Court or the District Court has jurisdiction to entertain the applicant's claim which, so far as the statement of claim can be understood, appears to include an attempt to re-litigate matters determined by the Family Court many years ago, see Family Law Act 1975 (Cth) Pt 5. In any event, examination of the statement of claim indicates that it does not disclose any reasonable cause of action against any of the named defendants. 10. The nature of the applicant's claim is unclear. The statement of claim contains irrelevant and apparently scandalous allegations. The relief claimed is not supported by any of the allegations in the statement of claim. In my opinion, nothing casts doubt on the correctness of the Judicial Registrar's decision to dismiss the proceedings on the ground identified in the judgment." 13There appear to be similarities between the statement of claim that was summarily dismissed by the District Court in 2011 and the statement of claim filed in this Court on 12 August 2013. However, I do not think that the fact that the earlier proceedings were summarily dismissed pursuant to r 13.4 gives rise to an estoppel precluding the plaintiff from making a fresh claim in this Court. 14However, the statement of claim as filed is manifestly deficient. No matters are pleaded which arguably could give the plaintiff a proprietary interest in the property owned by the second defendant. The claim appears to be that the plaintiff lent $31,500 to the first defendant in 1979 and that property that could be acquired in Parramatta in 1979 for about that sum would now be worth $800,000. Even if it is intended to allege that the first defendant used the money lent to him to acquire property, and no such allegation is made in the pleading, that would not provide an arguable basis for the relief claimed. The plaintiff pleads no facts which could arguably give rise to a constructive trust over the property in question. The claim discloses no reasonable cause of action for the relief sought. 15The relief sought does not include an order for repayment of a loan of $31,500 with interest. Indeed, in the course of her oral submissions this morning the plaintiff said that the amount of $31,500 was advanced between 1979 and 1982 and that the sum included the value of a car allegedly provided to the first defendant at about that time. 16If the plaintiff had intended to sue for repayment of the alleged loan, it would have been necessary for her to plead the terms of the loan and what moneys were advanced. She did not do so. 17The reason it would be essential for the plaintiff to plead the terms of the loan is that if the loan were repayable on demand the limitation period for commencing proceedings for recovery of the money lent would have expired after six years, that is, some time in 1985 (see Young v Queensland Trustees Limited (1956) 99 CLR 560; Ogilvie v Adams [1981] VR 1041; Haller v Eyre [2005] QCA 224; [2005] 2 Qd R 410). Unless there was an acknowledgment of the debt in writing, or some other basis upon which the limitation period would be extended then, if the loan were repayable on demand, the claim would be statute barred. 18It would not be possible for the first defendant to plead to the current statement of claim because it does not plead the material facts by which the alleged loan was made, nor does it plead the terms of the alleged loan. No material facts are pleaded establishing any claim against the second defendant for the relief sought in the statement of claim. 19The statement of claim also includes scandalous allegations of murder and assault including allegations made against persons not joined as defendants which have no relevance to the relief claimed. 20The plaintiff made oral submissions this morning. So far as I understood her submissions, nothing was said which could support the current statement of claim. 21I have considered whether I should strike out the statement of claim and give the plaintiff leave to file a fresh statement of claim. Given the circumstances of this case, including the fact that a similar statement of claim had previously been dismissed in 2011, I do not consider it would be in the interests of justice to take that course. No reasonable cause of action is disclosed on the current pleading and I do not think that the defendant should be put to any further expense or vexation by reason of these proceedings. 22In any event, if the plaintiff does have a claim for repayment of a loan of $31,500 that is not statute-barred, and which is also not barred by the proceedings that were taken in the Family Court, then any such claim would not properly be brought in this Court. The dismissal of these proceedings is not a dismissal on the merits. 23For these reasons I order that the plaintiff's proceedings be dismissed. I order that the plaintiff pay the first defendant's costs. 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: 19 September 2013