Kim v Kim [2026] VCC 7 | Case summary

County Court of Victoria|2026-01-20

This proceeding commenced its life as a claim by the plaintiff, Mr Kim, founded on an alleged floor-sanding partnership between himself and the defendant, Ms Kim.
It should be noted that Ms Kim and Mr Kim were in a marital or domestic relationship.
In essence, Mr Kim alleged that Ms Kim had failed to provide him with sufficient details surrounding a series of transactions on the partnership bank accounts totalling $153,980. He sought access to the partnership books in order to satisfy himself as to the transactions concerned and that Ms Kim account to him for the partnership assets. He sought an account of profits and equitable compensation.
Ms Kim has filed a defence and counterclaim. She admits the partnership but says that final accounts were taken between the partners and the partnership was wound up in October 2023. She says the ABN of the partnership was deregistered on 31 October 2023.
Ms Kim denies that Mr Kim has ever asked her to inspect the partnership books of account. She also says that copies of those books were held by the partnership's account, and that on about 10 October 2024 Mr Kim was provided by the accountant with seven years of the partnership's books.
Ms Kim denies that the alleged impugned transactions were used otherwise than for the purposes of the partnership business.
She also alleges that in October 2023, she and Mr Kim reached an agreement to dissolve and wind up the partnership business, as well as to divide their marital property. She says that the agreement included dividing the remaining cash in the partnership bank accounts with specified amounts to be paid to each of them, ownership of the vehicle and mobile phone that had been used in the partnership, and that the partners would not otherwise sue each other in respect of the dissolution of the partnership business or the division of their marital property.
When the claim was commenced, Mr Kim was represented by lawyers. Those lawyers ceased to act on 28 November 2024. Since that time Mr Kim has taken no steps to advance this litigation. Neither has he responded to any communications sent by Ms Kim to him.

(a) Mr Kim was ordered to file any reply and defence to counterclaim by 20 December 2024. He did not do so;

(b) the proceeding was set down for trial on 18 November 2025. Mr Kim, as plaintiff, was ordered to pay the setting down for trial fee by 16 September 2025. He did not do so;

(c) as a consequence, on 8 October 2025, the Court's Commercial Registry wrote to the parties to advise that due to the non-payment of the setting down for trial fee, the trial listed on 18 November 2025 had been vacated and the matter was set down for an administrative mention on 5 November 2025;

(d) Mr Kim did not provide his position to the Court for the administrative mention.

In this context, Ms Kim has now filed two summonses:

(a) in the first, filed 5 November 2025, Ms Kim seeks to have Mr Kim's claim dismissed for want of prosecution;

(b) in the second, filed 5 January 2026, Ms Kim seeks judgment on her counterclaim in default of Mr Kim having filed a defence. In discussion with counsel this morning, counsel for Ms Kim advised that, rather than pursuing the relief sought in the second summons, his client would seek an order that her counterclaim be discontinued with no orders to costs. I will make an order that the counterclaim be dismissed with no order as to costs.

Ms Kim relies on two affidavits of her solicitor, Mr Bae, in support of her first summons.
I should also say that, although it is apparent that Mr Kim has been served with the documents in respect of these applications, particularly via a chat app called Kakaotalk, has not appeared today. He was called outside the Court and there was no appearance.
Under the circumstances, I am prepared to continue with the hearing of the application, as it is apparent that he has been properly served.

Ms Kim seeks dismissal of Mr Kim's claim for want of prosecution under r24.05 of the County Court Civil Procedure Rules 2018 (Vic) ("Rules"), the Court's inherent jurisdiction to control its own processes and the Civil Procedure Act 2010 (Vic) ("CP Act").
Ms Kim relies on the following statement of principles set out by the Victorian Court of Appeal in Sullivan v Greyfriars Pty Ltd:[1]

"The inherent jurisdiction to dismiss a proceeding (including an appeal or an application for leave to appeal) for want of prosecution is well-established4 and is recognised in r 24.05 of the Supreme Court (General Civil Procedure) Rules 2005 ('the Rules'). It has been held that the power is to be exercised very sparingly and that it must be shown that there has been inordinate and inexcusable delay in complying with the Rules, and that the defendant or respondent is likely to be seriously prejudiced as a result. > > However, the principles which are described above do not appear to us to be sufficient to deal with the present case, for three reasons. First, the matter being one in the discretion of the Court, the principles cannot in any event be treated as determinative or exhaustive... Thirdly, and most significantly, the Court is now subject, including when exercising its inherent jurisdiction, to the statutory obligation in s 8 of the Civil Procedure Act 2010 to seek to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. > > Section 8 casts a new light on the inherent jurisdiction. It gives statutory emphasis to the importance of the timely resolution of proceedings, which in turn underscores the importance of compliance with orders of the Court for the management of a proceeding. But it also widens the range of matters to which consideration must be given. Even in cases where inordinate, inexcusable and prejudicial delay are not established, failure to comply with the orders of the Court may therefore none the less warrant summary dismissal. In light of s 8, the merits of the proceeding that is sought to be dismissed may bear on the exercise of the Court's discretion. That is especially so in this case because the Court is dealing with an application for leave to appeal rather than an appeal brought as of right."

Ms Kim also relies on the following statement of Beach JA in Efektiv Pty Ltd v Madgwicks[2] as being particularly apposite as to the facts of this case.

"Ordinarily, when one contemplates whether a proceeding should be dismissed for want of prosecution, one considers whether there have been intentional and contumelious failures to comply with court orders or specified time limits, or inordinate and inexcusable delay (giving rise to prejudice) on the part of the plaintiff/applicant. The present case, however, is not of that kind. It is more akin to a case of the kind described by Johnson J in Udowenko and Ors v Chief Executive Officer & Board of Directors of St Georges Bank - a Division of Westpac Banking Corporation and Ors [No 2]: namely, a proceeding that has, at best, barely moved to first base, let alone beyond it. What is plain is that the parties (or those who are entitled to progress the proceeding) have no intention of taking any further step in the proceeding - the proceeding having been allowed to lie dormant for in excess of two years."

Based on the evidence before me, it is plain that Mr Kim has no intention to advance this litigation. Other than initiating the claim, he has taken no active step in the proceeding at all. He has terminated the services of his lawyers. He has not filed a defence to the counterclaim. He has not paid the setting down for trial fee, which has resulted in the trial being vacated. He has not responded to communications from the Court or from Ms Kim's solicitors. He has also not responded to communications sent to him by Ms Kim via the messaging app Kakaotalk, even though it is apparent he has received and opened these messages.
Mr Kim was given the opportunity to file material on this application and has not done so.
I am satisfied that Mr Kim has barely progressed this claim beyond his initial filing and I infer he has no intention to do so in a timely and efficient manner, consistent with his obligations under the CP Act. Under those circumstances, It is appropriate that his claim be dismissed.

I certify that these 6 pages are a true copy of the judgment of His Honour Judge Wise delivered on 20 January 2026.

[1] [2015] VSCA 196 at paragraphs [21]-[23]

[2] [2022] VSCA 72 at paragraph [17]

Court (General Civil Procedure) Rules 2005

Kim v Kim

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Judgment (13 paragraphs)

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