Supreme Court New South Wales Medium Neutral Citation: O'Neill v Kwon [2016] NSWSC 1706 Hearing dates: 12 October 2016 Date of orders: 07 December 2016 Decision date: 07 December 2016 Jurisdiction: Common Law Before: Davies J Decision: (1) Pursuant to s 8(7)(b) Vexatious Proceedings Act 2008 Ki Bun Kwon is prohibited from instituting proceedings in New South Wales against Peter Charles O'Neill without the leave of an appropriate court under that Act. (2) The Defendant Ki Bun Kwon is prohibited from lodging or seeking to lodge caveats against properties in Folio Identifiers 2/523340, 22/6867, 2/SP18039, 1/SP56343, 2/SP56343, 3/SP56343, 5/SP56343 and 6/26171 without the leave of this Court. Catchwords: PROCEDURE – application for vexatious proceedings order pursuant to s 8 Vexatious Proceedings Act 2008 – order sought by private citizen – defendant files multiple proceedings claiming relief from same facts – earlier proceedings dismissed – multiple appeals all unsuccessful – proceedings commenced without reasonable basis - later proceedings an abuse of process – defendant lodges repeated caveats over plaintiff's land – whether injunction should be granted to prevent lodgement of caveats – vexatious proceedings order made – injunction granted REAL PROPERTY – Torrens title – caveats – litigant lodges repeated caveats claiming interest from same facts – proceedings to extend caveats all unsuccessful – whether injunction should be granted Legislation Cited: Conveyancing Act 1919 (NSW) Limitation Act 1969 (NSW) Real Property Act 1900 (NSW) Vexatious Proceedings Act 2008 (NSW) Cases Cited: Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192 Kwon v O'Neil [2002] NSWCA 116 Kwon v O'Neill [2014] NSWSC 1221 Kwon v Cha; Kwon v O'Neill [2015] NSWCA 111 Lethbridge v Mitchell (1887) 8 LR (NSW) 249 Stocks and Holdings (Imperial Arcade) Ltd v Fink (1965) 82 WN (Part 1) (NSW) 386 Taylor v Commonwealth Development Bank of Australia (1992) ANZ ConvR 161 Verebes v Verebes (1995) 7 BPR 14,408 Category: Principal judgment Parties: Peter Charles O'Neill (Plaintiff) Ki Bun Kwon (Defendant) Representation: Counsel: J Forster (Plaintiff) In person (Defendant) Solicitors: Forsters Solicitors (Plaintiff) Self-represented (Defendant) File Number(s): 2016/271489 Judgment 1. The Plaintiff seeks orders to restrain the Defendant from commencing further proceedings against him and to stay those that have already been instituted pursuant to the Vexatious Proceedings Act 2008 (NSW)(the Act). He also seeks an order that the Defendant be restrained from lodging caveats on land owned by him or by companies associated with him. Background to the proceedings 1. The Plaintiff, Mr O'Neill, is a solicitor admitted to practice by this Court in 1977. He practised in partnership in Manly with Robert Kaufmann as Kaufmann and O'Neill. He retired from legal practice in 2007. Mr O'Neill says that no successful complaints were made against him in 30 years of practice. 2. Mr O'Neill says that the only professional contact he has had with the Defendant, Ms Kwon, was a short conference that occurred, to the best of his recollection and belief, sometime during 1990 at the offices of Kaufmann and O'Neill in Manly. He said he was consulted by Ms Kwon about certain legal matters. He recalls that she was talking fast and was not listening to what he was saying. After the conference he decided that he was not able to assist her. He returned the documents to her that she had left with him. After that initial conference he has had no further professional contact with Ms Kwon or any members of her family. 3. In proceedings instituted subsequently by Ms Kwon, and as the basis for a number of caveats lodged against properties associated with Mr O'Neill, is a claim by Ms Kwon that Mr O'Neill owes her money because her brother is supposed to have paid to Mr O'Neill money as advance payment of legal costs many years ago. Mr O'Neill says that he has never met any of Ms Kwon's family and has never met Ms Kwon's brother who he understands died some years ago. 4. A sense of what is being claimed by Ms Kwon can be discerned from a letter she wrote to Mr O'Neill on 27 August 2012. The letter reads as follows: Dear Mr Peter O'Neil, How are you? I am Miss Ki Bun, Kwon. I would like get my Younger Brother's Money back. It which was, he paid to you for the Advance Lawyer's Costs/Fees, as Contract Money. He wants I Collection that Refund as soon as Possible. And I buy one House, it under the both name, the Title is, my name and his name. And the rest money is, I bring back to Korea, buy his own House too. He doesn't has own home now. Those he paid to you, that money was "He sold it likely 3 his own with 2 Story Houses" and he sold his own Car Sedan, as well his business all Capital Monies. It even he got the Bank Loans etc.. In the many years I saw that "He got a very Suffering life, he was nearly die." After that, it taken more than 23 year now, his wife is so Angry in all the times and "He got a very hard-ship life" as well, my sister-in-law wants Divorce with my Younger Brother now. "You are getting old and you are Retired Man now." Therefore, you have to do my Brother's Money Refund to me now, please, it as soon as possible. It also, I have a serious Health Problem so I have to go to Korea do Civil-Method Treatment urgently now. Do you remember that "I had ready to sent the messages" it by a little letter and as well Mobile Phone. But now is a bit different. You have to pay me Option as below: 1. You have to Pay me $10, Million with an Aussie currency, it by a whole at once, without Court Proceedings. It only any Solicitor's a witness, but it should be rightly now. 2. If you do a Court Proceedings, "You have to pay me in my hand it for $13, Million" with an Aussie Currency and "you have to pay plus the Lawyers' Fees." Please, you have to understand me "I don't want I making any trouble with You Lose so much money" it concerning me. Please, you better get the Option Number 1. Thank you very much, and god bless you in always! And good bye. 1. A further sense of Ms Kwon's claim can be obtained from this document which forms part of a Statement of Claim filed against Mr O'Neill: Mr O Neil, Peter he is a Solicitor. He got the his own office in Manly, the address is as below: 48-50 Corso Street, Level 1st Floor in Manly 2095 NSW. As above the Address's building is His own building with partner-ship Mr. Cosman. He's a Solicitor as well. but they parted now he got.office in city some where, I know Mr. 0' Neil approxi. 8 years now. How I know him? Actually, in 1984, May when I went to Korea on the way home to Australia in side Airplane, I met one couple who living in Spring wood. They given me the Telepone number for if I have a difficult any matter contact, ask, help. The person's name is Mr. Tomas Franky, he's single man and Big Business-Millionaire man(English man). He got the his business shop 3 of in Australia one of that in Manly Balgala Rd the Japanese Car spare-part big shop. I contact him, we met then been the Friend(purely). Mr. Tomas Franky he introduced Solicitor Mr. O'Neil. Because I've got the court case it never solution by the court from my own Solicitor, Barrister. That's why? he introduced him to me. Mr. O'Neil willing to do my matter then I paid basic money for Court "Fees". It still got the $150, my credit he couldn't do any. However, after some months when he hold my matter from the that Date he suddenly give up and returned my all documents back by Mail. In my area so many happens surrounding me very often. When at that time I contacted asked him help then he said Yes made an appointment then we met in his office formally(I brought money as well). But he did not do, changed his mine in suddenly, then he said "Joke only" or angried, I came back home. Some thing like that many times or he Proposed get we Marry. He said to me Love/ marry in front of his Sex-partner, "why I mention of his sex-partner she is a little coffee shop the owner near his office we went to there often when I made formal appointment day instead of solution my matters. They combined "Ploted me", he bought a Flat for her in Mosman I think that money is from the my Money his mother she Suggestion of that, when I went to in Mountain her place. However, he taken my life time only, because if I go in Manly see him by an appointment it takes 4 hours/or realy one day return to home. The time is equality Money he has to be compasation of mv time waste. He said he got my money $870,000,but he can't give me back that money because he said that I enquiryed many times that's why! The reason's that. I all ready mentioned as above he has to be pay me, about taken my life time, he cheated me as well(may be I am going to De-scribing in future, it depend by his attitude) I've got so strong Harmed. It has been concerned him. Anyway, changed subject backleaf, Proceedings 1. In 1998 Mr O'Neill was served with a Statement of Claim filed in the District Court claiming $870,000. Mr O'Neill sought to strike out the proceedings as not disclosing any cause of action. The proceedings were struck out by Delaney DCJ on 9 June 1998 when there was no appearance by Ms Kwon. On 3 July 1998 Ms Kwon filed a Motion and affidavit to have the matter restored to the list. Judge Patten ordered Ms Kwon to file an amended Statement of Claim within 28 days. That was not done and on 23 September 1998 the Registrar struck the matter out as no amended pleadings had been filed. 2. In October 1998 Ms Kwon filed a further Motion and Amended Statement of Claim to have the matter restored to the list. That Motion was heard by Downs DCJ on 13 November 1998. His Honour dismissed the Motion and ordered that no further documents were to be filed until the costs ordered to that time had been paid. 3. On 13 November 1998 Ms Kwon filed a Notice of Appeal to the Court of Appeal. The matter came before the Registrar of the Court of Appeal on 22 March 1999. It was adjourned to 12 April 1999 because there was no appearance by Ms Kwon. On 12 April 1999 when there was again no appearance by Ms Kwon that matter was struck out. 4. On 19 June 2001 Ms Kwon filed a further Motion in the Court of Appeal seeking leave to extend time. That Motion came on for hearing on 25 June 2001 when it was dismissed. On 30 July 2001 Ms Kwon filed a further Motion seeking leave to extend time. 5. In the meantime, the Registrar of the Court of Appeal had raised with Ms Kwon a number of times the need to get legal advice because she had purported to appeal from Judge Downs' judgment when she needed leave to do so. Instead of doing that, Ms Kwon filed a Summons in the Court of Appeal on 31 August 2001 seeking leave to appeal from the decision of the Registrar on 20 August 2001. In fact all that had happened on 20 August 2001 was that Ms Kwon's Notice of Motion filed 30 July 2001 had been stood over generally pending the filing of a summons seeking leave to appeal against Judge Downs' order of 13 November 1998. 6. On 29 October 2001 the Summons filed on 31 August 2001 was dismissed as incompetent by the Registrar. 7. On 1 November 2001 Ms Kwon filed a Notice of Motion to review the Registrar's decision dismissing the Summons filed 31 August 2001 as incompetent. That Motion came on for hearing before the Court of Appeal constituted by Sheller, Stein and Heydon JJA on 12 April 2002. 8. The judgment of the Court of Appeal given by Heydon JA (Kwon v O'Neil [2002] NSWCA 116) determined that the decision of the Registrar to dismiss the summons on 29 October 2001 was unquestionably correct. In those circumstances Ms Kwon's Notice of Motion filed 1 November 2001 was dismissed. 9. Ms Kwon then sought special leave to appeal to the High Court. The application was heard by Gummow and Callinan JJ and Ms Kwon was assisted by an interpreter. During the course of her oral submissions Ms Kwon said through the interpreter: I would like my brother paid. I want to get the fee back which my brother paid, the legal fees from Mr Peter O'Neill, which is a solicitor. 1. On 5 November 2002 the application for special leave was refused on the basis that the Court of Appeal's decision was plainly correct. 2. On 21 October 2013 Ms Kwon filed a Summons in the Common Law Division of this Court naming Mr O'Neill as the First Defendant and the "ANZ Mortgage Section" as the Second Defendant. The type of claim was described as follows: Application for Order "contracted advance lawyers fee/cost refund of the claim" it is 23 years ago. As well that lawyer is retired man now. 1. The orders claimed were for the ANZ to remove two mortgages and for an order for levy of two properties at "38, Gouldsbury, Mosman" (sic) and "19, Central Avenue, Many" (sic). The relief went on to say "If get at above for levy of two properties, the rest is must be by cash, from the $10, million refund, advance of contracted lawyer fees". 2. It is important to set out again what appears in the Summons: I am on invalid Pensioner now. Reasonable my brother Ki Turk, Kwon paid to the Lawyer Mr Peter 0 Neill, it was Contracted the Advance Lawyer Fees, 26 years ago. 1. Mr Peter 0' Neill is a Retired Man, now. 2. That Total Refund amount is, at that time the Value of money as now Currency, the estimate is $16, million. But he was a Lawyer, so it thinking of the Consultation. Therefore, I would like Refund that Lawyer's Fee is, about $10, million only, but as soon as possible. If I get for Levy of as above 2, Properties, it can be Deduction from $10, million, the Rest is it should be by Cash. 3. Mr O'Neill is, he didn't Act for me any, then I got the assault by my ex-husband's Step-Son, Tai Kwon Do Skill, Hand assault. It is the Method of Kills People without any injury out looking, the inside the Organs explode then Die. But I am Lucky, I had Rescued, by Korean Civil medicine, which I made once. That incident was, my ex-husband Owes me it up to $800,000, now Currency. I Lent to him my money, on Wed-lock time, he didn't pay me any money yet. If Mr O'Neill was Act it for me, I did not get any injury on 15/8/2010, 5pm. I need my Own House, and my Brother need own home too! He sold his own 2 Story house, with many times then paid to Mr O'Neill. Then my brother got a very Suffering life for since that until now. I got 1 bedroom Public unit, my 2 Adults Sons with me and depend on me, because people Snatches my Sons' all money, I can't have a my life now. Then my Grand Children, they are in Orphan house, it is very Pitiable I feel so sorry. Therefore, I need Own House it is a very Urgent now. This Summons filing fee is, it will be pay during the proceedings. These fees may including a hearing allocation fee. 1. Mr O'Neill moved by Motion filed 28 November 2013 to strike the proceedings out as not disclosing any cause of action. On 11 December 2013 Bellew J dismissed the proceedings and ordered Ms Kwon to pay Mr O'Neill the sum of $3000 by way of lump sum costs. 2. On 24 July 2014 Ms Kwon filed a Summons in the Equity Division of this Court against Mr O'Neill seeking the following relief: The court order for permission to without the proprietor's signature, for the title transfer as below property. 1. Under the claim for relief Ms Kwon had written: Why? That the reason is, the proprietor owes to the applicant about $10, million. Therefore, that proprietor has been agreement of 38 Gouldsbury Road (sic) Mosman NSW 2088, it by $1.3, million, sold. That the agreement date was, on 14/June/2014, 11:30am in front of As above Property … 1. On 14 August 2014 Ms Kwon by Summons sought an extension of a caveat over the Gouldsbury Street property and others. 2. Mr O'Neill sought to strike out both summonses and those Motions came before White J on 26 August 2014. His Honour gave judgment on that day: Kwon v O'Neill [2014] NSWSC 1221. His Honour summarised the background as follows" [5] The summons also includes a statement to the effect that about 25 years ago the plaintiff's younger brother had paid a sum of approximately $1 million to the defendant who was then a solicitor. The payment is described in the summons as "an Advance Contracted the Lawyer's Cost and the Legal Fees for my any legal Matters". The statement subscribed to the summons states that the money was Ms Kwon's father's money and that as he had died it was also her money too. The summons in effect pleads that the defendant did not do any legal matters and the plaintiff is entitled to a refund. The statement states that the refund should be in an amount that "at that time a Value of money with now currency, it is about $16,million now." I understand that to be an allegation that the money allegedly advanced to the defendant would now be worth about $16 million. The summons then asserts that "but he was a Lawyer so it reference etc., then I'd like drops $6,million, and I want to get Refund it only $10,million by him." I understand the plaintiff to say that she is prepared to accept repayment of only $10 million, and not the $16 million she alleges she is owed. [6] The summons then states in substance that on 14 June 2014 the defendant, Mr O'Neill, and Ms Kwon had a conversation in which he agreed to transfer the property at Mosman to her for $1.3 million, apparently by way of partial forgiveness of the debt. The plaintiff says that she now is owed only $8.7 million, but is entitled to a transfer of the property by reason of the agreement said to have been made on 14 June 2014. The plaintiff says that she asked the defendant to sign a transfer, but he has refused to do so. According to the plaintiff Mr O'Neill told her to, "Ask to his Solicitor Mr John" and that his solicitor had refused to provide a signed transfer. She complains that the ANZ Bank has been given a mortgage over the property and asserts priority over the ANZ Bank to the property although the ANZ Bank has not been joined. 1. Justice White noted that the basis for seeking summary dismissal lay partly in the history of earlier litigation brought by Ms Kwon against Mr O'Neill and also upon the unenforceability of the claim made by Ms Kwon in the absence of any writing signed by Mr O'Neill to evidence the agreement upon which she relied. Justice White then summarised briefly the District Court proceedings which went to the Court of Appeal and the proceedings before Bellew J. 2. In dismissing both summonses White J said: [13] The claim now brought by Ms Kwon is brought partly upon the same facts as the previous claim that was dismissed by Bellew J on 11 December 2013, but with the additional allegation that in June 2014 Mr O'Neill had agreed to transfer the Mosman property to her in consideration of the partial forgiveness of the alleged debt of $10 million. As the dismissal of the claims brought in the District Court and in the Common Law Division of this Court were dismissed otherwise than on their merits, no cause of action estoppel or issue estoppel arises. But the claim brought yet again by Ms Kwon faces the same irremediable difficulties as the claim that was dismissed by Bellew J last year. Thus the plaintiff does not by any evidence, admissible or otherwise, show how she has title to bring any claim in respect of the alleged advance made about 25 years ago. Her own evidence is that the moneys allegedly advanced were those of her late father and that the moneys were advanced not by her, but by her younger brother. In an affidavit made today the plaintiff deposed "when that lawyer received my younger brother's money he made the trust is under my name, Ilejazz Pty Ltd ...". Whatever that might mean it is not evidence that gives the plaintiff any title to sue for the alleged debt. [14] I should add that there is no evidence that would be admissible of how the payment of approximately $1 million is said to have been made to Mr O'Neill. There is for example no evidence of the drawing of a cheque or of the clearance of such a cheque. There is no evidence of a receipt for the moneys allegedly provided. Moreover, if the moneys were paid by way of an advance, apparently for the provision of legal services which were not provided, then the claim would seem to be one which would be for restitution of the moneys paid for a consideration which had wholly failed. That claim would long ago have been statute-barred. 1. His Honour then went on to note that the summonses before him concerned an alleged agreement for the transfer of the Mosman property. However, Ms Kwon accepted that there was no note nor memorandum in writing (to comply with s 54A Conveyancing Act 1919 (NSW)) nor was there anything that could arguably give rise to any plea of part performance. In those circumstances his Honour dismissed both summonses. 2. Ms Kwon sought leave to appeal to the Court of Appeal against White J's orders dismissing the proceedings. On 22 April 2015 the Court of Appeal refused leave to Ms Kwon to appeal: Kwon v Cha; Kwon v O'Neill [2015] NSWCA 111. It did so on the basis that no error was demonstrated in White J's reasons for dismissal. 3. Ms Kwon thereafter sought special leave to appeal to the High Court from the Court of Appeal's judgment. Special leave was refused on 12 November 2015. 4. On 21 April 2016 Ms Kwon initiated proceedings in the District Court (2016/122738) against the ANZ Bank which is the mortgagee of the Gouldsbury Street property. The relief claimed is as follows: 1. An Order for Remove the Mortgages from at 38, Gouldsbury Rd (sic), Mosman NSW 2088 by ANZ Bank, that Forged public documents: AH208128M and AH208129K. Because of: (1). Mr O'Neill done the Caveat above Property by on 8 /April/2013. (2). The ANZ Bank had Mortgaged it above Property by 24th/May/2013 How it Jumped for 9, months front of that plaintiffs Caveat, it by 30h/August/2012? Also, it by Searched on 20th/December/2015, by Mr O'Neills area the ANZ Bank Manager "No any Loan Lent" to at above Property. But it got $5,450,000, now. That amount is, it from 19, Central Ave, Manly Property, it was Mortgaged by that $5,450,000. It had Sold and that Debt had moved to above Property at 38, Goulds. It is a Big Swindle it against government & breaking the Law and the Rule. 2. An Order for Filing Fee and the ink such legal expenses. 1. The affidavit filed by Ms Kwon in support of the summons again made reference to her younger brother paying money to Mr O'Neill some 28 years ago. She claimed that on present day values that money was now worth more than $20 million. On the basis that Mr O'Neill owed this money, apparently to Ms Kwon, she wanted the mortgages removed from the Gouldsbury Road and Central Avenue properties so that they could be transferred to her. 2. On 10 May 2016 the District Court determined that it had no jurisdiction to grant the relief sought in the summons. The caveats 1. On 8 April 2013 Ms Kwon lodged a caveat over the property in folio identifier 2/523340 (apparently the Gouldsbury Street property). The estate or interest claimed was as follows: Peter O'Neill was a lawyer. My younger brother paid so much money to the Peter O'Neill. It was 28 years ago. That lawyer is a retired man now. He didn't do any yet therefore, I have to get that lawyers fee refund. It as soon as possible. My brother is in overseas now. That fees for my cases, but never do/didn't and that fee is my money too. It follows my mother's will. 1. That was caveat number AH646677F. 2. On 21 July 2016 Ms Kwon lodged another caveat over the land in folio identified 2/523340. The estate or interest claimed was as follows: I claim owner of land and building. It has agreed sell and pay $1.3 million on 14/6/2014 11:30am. I it ought. The remainder of what appears in Schedule 1 of the caveat reiterated that the claim was for more than $20 million in present currency values and was an advance on lawyer's fees. The caveat was numbered AK612903Q. 1. On 21 July 2016 Ms Kwon also lodged a caveat over land in folio identifier 6/26171, a property owned by a company Ilejazz Pty Ltd at 47 The Corso, Manly. Mr O'Neill is the sole shareholder and director of that company. A copy of the caveat is not available but its number is AK612667. 2. On 12 August 2016 Ms Kwon filed a summons in the Equity Division of this Court to extend those three caveats. The affidavit sworn in support recited the same matters as had been contained in the affidavit in the District Court proceedings commenced in April 2016. 3. On 24 August 2016 Darke J dismissed Mrs Kwon's summons, holding not only that the claims in the caveats were the same as had been determined against her by Bellew J and White J (referred to above), but also that her claims had no substance. 4. On 24 May 2013 Ms Kwon lodged a caveat over the land in folio identifier 11/584154. That land was owned by a company called Togi (Number 1) Pty Ltd. The evidence does not disclose the relationship between that company and Mr O'Neill. Nor is it land identified in the Schedule to the Amended Summons. Legislative provisions 1. Relevant provisions of the Vexatious Proceedings Act 2008 (NSW) are these: 4 Meaning of "proceedings" In this Act, proceedings includes: (a) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and (b) any proceedings (including any interlocutory proceedings) taken in connection with or incidental to proceedings pending before a court or tribunal, and (c) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way. 5 Instituting proceedings (1) In this Act, institute, in relation to proceedings, includes: (a) for civil proceedings—the taking of a step or the making of an application that may be necessary before proceedings can be started against or in relation to a party, and (b) for proceedings before a tribunal—the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal, and (c) for criminal proceedings—the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender, and (d) for civil or criminal proceedings or proceedings before a tribunal—the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings. (2) A reference in this Act to instituting proceedings includes a reference to instituting: (a) proceedings generally, and (b) proceedings in relation to a particular matter, and (c) proceedings against or in relation to a particular person, and (d) proceedings in a particular court or tribunal. 6 Meaning of "vexatious proceedings" In this Act, vexatious proceedings includes: (a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground, and (d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose. … 8 Making of vexatious proceedings order (1) When orders may be made An authorised court may make an order under this section (a vexatious proceedings order) in relation to a person if the court is satisfied that: (a) the person has frequently instituted or conducted vexatious proceedings in Australia, or (b) the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia. (2) For the purposes of subsection (1), an authorised court may have regard to: (a) proceedings instituted or conducted in any Australian court or tribunal (including proceedings instituted or conducted before the commencement of this section), and (b) orders made by any Australian court or tribunal (including orders made before the commencement of this section). (3) An authorised court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard. (4) Orders may be made on court's own motion or on application An authorised court may make a vexatious proceedings order of its own motion or on the application of any of the following persons: (a) the Attorney General, (b) the Solicitor General, (c) the appropriate registrar for the court, (d) a person against or in relation to whom another person has instituted or conducted vexatious proceedings, (e) a person who, in the opinion of the court, has a sufficient interest in the matter. (5) An application for a vexatious proceedings order may be made by a person referred to in subsection (4) (e) only with the leave of the authorised court. (6) A judicial officer, member or registrar of a court or tribunal may make a recommendation to the Attorney General that he or she consider making an application for a vexatious proceedings order in relation to a specified person. (7) Orders that may be made by Supreme Court The Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person: (a) an order staying all or part of any proceedings in New South Wales already instituted by the person, (b) an order prohibiting the person from instituting proceedings in New South Wales, (c) any other order that the Court considers appropriate in relation to the person. … 1. The principles associated with making orders under the Act have been discussed in a number of cases. In Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192 I said: [7] I discussed in Attorney General of NSW v Wilson [2010] NSWSC 1008 at [9]-[17] the principles associated with the making of an order under s 8(1)(a) of the Act. Those matters may be summarised as follows: (a) the test of "frequently" is a less demanding test than was required under s 84 Supreme Court Act 1970; (b) the term "frequently" is a relative term and must be looked at in the context of the litigation being considered; (c) the number of proceedings considered may be small if the proceedings are an attempt to re-litigate an issue already determined against the person; (d) regard may be had to applications made by the person in proceedings commenced against that person; (e) regard may be had to the way the person has behaved and conducted himself or herself in the proceedings before the Court; (f) regard may be had to proceedings in any Australian court or tribunal; (g) regard may be had to the findings and result in the proceedings under consideration. [8] In these proceedings, reference has been made to the judgment of Perram J in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 where his Honour eloquently expresses the principles relating to vexatious litigants at [2]-[12]. Whilst acknowledging that the test his Honour had to consider was the test under s 84 Supreme Court Act and is, as I have noted, a more demanding test than is required under the Vexatious Proceedings Act 2008, much of what his Honour sets out is relevant to the determination in the present case. [2] A comprehensive explanation of what makes a proceeding vexatious is difficult to proffer for the boundary between the persistent and over-zealous on the one hand, and the vexatious on the other, may at times be indistinct. However, the following principles are, at least, well-established. First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen's ordinary right. It is, therefore, not lightly to be made. [3] Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits. [4] Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this Court or in other Australian courts. [5] Fourthly, the qualities of vexation to which O 21 is addressed are to be found, as the terms of r 1(1) show, in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant's institution of such proceedings may fairly be said to be both habitual and persistent. [6] Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding's legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless. [7] Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters. [8] Seventhly, it is the related quality of repetition which underpins, in part, a need for the institution of the proceedings to deserve the appellations habitual and persistent. The litigant's conduct will be habitual where the commencement of proceedings occurs as a matter of course when appropriate conditions for their commencement are present as was explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492. That formulation may not wholly explain the litigant who commences proceedings on any occasion and without the presence of any conditions, whether appropriate or otherwise. In such cases, the idea of constant repetition driven by habit and symptomatic of an inability not to engage in the behaviour may be more useful. Persistence, on the other hand, generally suggests stubborn determination but, in the context of the vexatious, carries with it the capacity to endure failure beyond the point at which a rational person would abandon the field. [9] Eighthly, each of these notions – the want of reasonable grounds, habitual institution and persistent institution – are to be gauged objectively. But this does not mean that a litigant's own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct. [10] Ninthly, the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals therefrom and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto – so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth). … [12] Finally, once it is concluded that the Court's power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest – although not determine – a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant's defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant's forays into the courts have caused, pecuniary or otherwise. Consideration 1. What is clear from all of the proceedings instituted by Ms Kwon and from the submissions she made in the present proceedings is that she has a fixation or obsession about her brother having provided funds to Mr O'Neill. There is absolutely no evidence that this obsession is grounded in reality. Indeed, Mr O'Neill's evidence that he has never met any other member of her family points to the obsession being based on a delusion. 2. Even if, contrary to my view, there was an event when Ms Kwon's brother paid some legal costs to Mr O'Neill, that would not provide any basis for the claims that Ms Kwon has made. She does not, for example, demonstrate how in any way recognised by the law she has the right to make the claim against Mr O'Neill. The claim appears to be in excess of 20 years out of time and would not therefore be maintainable under the Limitation Act 1969 (NSW) even if Ms Kwon somehow had the right to bring the proceedings – see s 63(1). The amount that Ms Kwon claims is not justifiable on any material that she has put forward. The claim in relation to an agreement with Mr O'Neill that he would transfer property to her is not only denied by him but, as White J held, would be unenforceable in any event because of the lack of writing. 3. Those matters alone show that the proceedings have been instituted and pursued without reasonable ground. 4. Further, inasmuch as earlier proceedings based on the same claim have been dismissed, the subsequent institution of proceedings based on the same matters must be regarded as an abuse of the process of the Court. 5. It is not necessary to determine if the proceedings have been conducted in a way so as to harass or annoy the Defendant, although it is clear that they do in fact harass and annoy him, because I consider that there may be mental health issues which explain Ms Kwon's behaviour in both instituting proceedings and in lodging the caveats. I base that view not only on the way she presented and spoke at the hearing (making full allowance for language difficulties) but also on an assertion made by her in a document entitled "Reply(2nd)" filed by her in these proceedings that Prince Andrew witnessed the payment of the money by her brother to Mr O'Neill. 6. I am satisfied because the proceedings have been instituted or pursued without reasonable ground and that some are an abuse of the process of the Court that all of the proceedings instituted by Ms Kwon are vexatious proceedings within the meaning of s 6. I am also satisfied that these proceedings have been frequently instituted within the meaning of s 8. I take into account in that regard the requests for re-listing and reinstatement of proceedings as well as the appeals that Ms Kwon has pursued. As the authorities have made clear the number of proceedings may be small if the proceedings are an attempt to re-litigate an issue already determined against the person. 7. As far as the lodgement of caveats is concerned, I note first that s 8(7)(c) of the Act gives to the Court the power to make any other order that the Court considers appropriate in relation to the person. A caveat is, in effect, a statutory injunction. In that way it is not unrelated to instituting proceedings. Moreover, the history in the present matter shows that whenever a lapsing notice has been given in respect of a caveat lodged by Ms Kwon she has instituted proceedings to extend the caveat. All of those proceedings have been unsuccessful. 8. Mr O'Neill should not be in the position where caveats are constantly lodged against his properties and properties of companies with which he is involved, necessitating the issuing of lapsing notices. The mere fact that a caveat is on the title to his properties is a detriment he suffers and has the potential to cause financial harm if the caveat was lodged at a crucial time when he might be endeavouring to deal with the properties. 9. In addition, s 74O of the Real Property Act 1900 (NSW) deals with lodgement of successive caveats claiming the same interest. Although that section provides that a further caveat has no effect without leave having been given by the Court for its lodgement that provision gives no certainty about whether the Registrar-General will note the caveat on the title. As Young J noted in Taylor v Commonwealth Development Bank of Australia (1992) ANZ ConvR 161, it may be difficult for the Registrar-General to gauge whether a second caveat is on the same grounds as the first especially where the caveats are differently worded. Although in a slightly different context, I note that in Verebes v Verebes (1995) 7 BPR 14,408 Young J held that there may be circumstances where a court would award an injunction against the further lodgement of a caveat. 10. Similarly, in Stocks and Holdings (Imperial Arcade) Ltd v Fink (1965) 82 WN (Part 1) (NSW) 386 McClelland CJ in Eq granted an injunction to a registered proprietor to restrain the lodgement of a caveat where the probable injury which the proprietor would have suffered from unsustainable caveats could not be remedied adequately by damages. Where the issue has previously been tried and determined it may be appropriate for the Court to issue an injunction against any further litigation or lodgement of caveats about the same matter: Lethbridge v Mitchell (1887) 8 LR (NSW) 249 at 254. 11. In my opinion, whether by the power given in s 8(7)(c) of the Vexatious Proceedings Act or in Court's inherent jurisdiction, I consider that an order should be made preventing the Defendant from lodging any further caveats on Mr O'Neill's land or on land owned by companies associated with him. Conclusion 1. The Plaintiff accepted that there were no proceedings on foot against him brought by Ms Kwon at the time of the hearing of these proceedings. Prayer 2 is not pursued. 2. I note that at the conclusion of the hearing I made interlocutory orders restraining Ms Kwon from commencing further proceedings against Mr O'Neill and from lodging caveats over land listed in the Schedule to the Amended Summons. Those orders should now be made permanent. The Plaintiff does not seek costs. 3. Accordingly, I make the following orders: (1) Pursuant to s 8(7)(b) Vexatious Proceedings Act 2008 Ki Bun Kwon is prohibited from instituting proceedings in New South Wales against Peter Charles O'Neill without the leave of an appropriate court under that Act. (2) The Defendant Ki Bun Kwon is prohibited from lodging or seeking to lodge caveats against properties in Folio Identifiers 2/523340, 22/6867, 2/SP18039, 1/SP56343, 2/SP56343, 3/SP56343, 5/SP56343 and 6/26171 without the leave of this Court. ********** 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: 07 December 2016