Kwon v O'Neill

Judgment 1HIS HONOUR: There are two summonses presently before me, together with a notice of motion by the defendant seeking summary dismissal of the first proceeding. Summary dismissal of the second proceeding is also sought. 2The first proceeding was commenced by the plaintiff, Ms Kwon, on 24 July 2014. The summons seeks the following relief: "The Court order for Permission to without the Proprietor's Signature, for the Title Transfer as below Property." (sic) 3It also seeks such other orders as the Court thinks fit. 4There is subscribed to the summons a statement of Ms Kwon's case. Ms Kwon is not legally represented. The summons includes the following. Under the claim for relief which is quoted above, Ms Kwon has written: "Why? That the reason is, the Proprietor Owes to the Applicant about $10, Million. Therefore, that Proprietor has been Agreement of [xxx, yy Road], MOSMAN NSW 2088, it by $1.3, million, sold. That the agreement date was, on 14/June/2014, 11.30.am in front of As above Property ... " (sic) 5The 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. 6The 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. 7In the later proceeding that was commenced by summons filed in court on 14 August 2014 the plaintiff had sought an extension of a caveat over properties, including the property in question in the first proceeding. For reasons which I then gave I refused that application, but stood the summons and the second proceeding over to today. I indicated that today I would entertain any application for summary dismissal of both proceedings. 8The defendant has applied for such dismissal. In support of the application for summary dismissal Mr O'Neill denies the effect of the conversation alleged by the plaintiff. He deposes that there was a conversation on 14 June where the plaintiff said that he owed her money, that she wanted his house in Mosman, and that he denied that he owed her the money and said there had been a number of cases about that. He deposed that the plaintiff demanded that he sign in her notebook that she proffered to him and screamed that he should sign his name and "you give me that house". According to Mr O'Neill he said, "you speak to my solicitor" and drove off. The question of what conversation took place on 14 June raises a question of fact which cannot be determined on the present application. 9Mr O'Neill also deposes that he first had contact with the plaintiff in about 1990 and that after an initial conference he returned documents to the plaintiff, having decided that he could not assist her further and has had no further professional contact with her. 10The basis for seeking the summary dismissal of the proceedings lies partly in the history of earlier litigation brought by Ms Kwon against Mr O'Neill, but 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 relies. 11As to the first basis, Mr O'Neill deposes that he was served with a statement of claim in March 1998 in which the plaintiff claimed a sum of $870,000. In June 1998 the statement of claim was struck out with costs. A notice of motion to file an amended statement of claim was filed in the District Court. The notice of motion was dismissed. Applications to the Court of Appeal in respect of orders made in the District Court were dismissed by a registrar of the Court of Appeal and an application to review the Registrar's decision was dismissed on 12 April 2002. 12A second proceeding was commenced by Ms Kwon against Mr O'Neill on 19 November 2003 by a statement of claim in the Common Law Division (2013/317024). In that statement of claim Ms Kwon claimed a sum of $10 million against Mr O'Neill. She sought an order requiring him to remove mortgages on the Mosman property and an order for levy of the property. That claim was summarily dismissed by Bellew J on 11 December 2013. His Honour concluded that on the evidence before him, no reasonable cause of action was disclosed and the claim brought by Ms Kwon was obviously untenable. 13The 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. 14I 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. 15But in any event, the present claim in the summons is not for the alleged debt. That claim was made last year and was dismissed. The present claim is for transfer of the Mosman property. The conversation upon which the plaintiff relies is denied. But whether or not the plaintiff's version of events concerning that conversation might be accepted at a final hearing does not matter. 16Section 54A(1) of the Conveyancing Act 1919 (NSW) provides: "54A Contracts for sale etc of land to be in writing (1) No action or proceedings may be brought upon any contract for the sale or other disposition of land or any interest in land, unless the agreement upon which such action or proceedings is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged or by some other person thereunto lawfully authorised by the party to be charged." 17The claim brought in the summons is an action or proceeding on an alleged contract for the sale or other disposition of land. It is a claim for specific performance of the alleged agreement. The plaintiff accepts that there is no note or memorandum in writing. There is nothing in the plaintiff's summons, nor in the affidavits read on the application that could arguably give rise to any plea of part-performance. It is clear beyond any reasonable argument that the claim for specific performance of the alleged agreement is doomed to fail. I bear in mind that summary dismissal is only appropriate in cases which are clearly doomed to fail or obviously untenable. This is such a case. 18The summons in the second proceeding sought only orders for the extension of caveats or such other order as the Court thought fit. I have already refused the application for the extension of the caveats. There is no other order which it would be appropriate to make. 19I order that in each of proceedings 2014/239373 and 2014/218723 the summons be dismissed with costs. 20The defendant's notice of motion which was filed in proceeding 2014/218723 also sought declarations pursuant to s 6 of the Vexatious Proceedings Act 2008 and a vexatious proceeding order pursuant to s 8 of that Act to prohibit the plaintiff from instituting any proceedings against the defendant without leave of the Court. I am not presently concerned with that application. There is a question as to whether or not such an application should be made by summons or statement of claim, rather than by notice of motion. I will hear Mr O'Neill on that question. [Mr O'Neill addresses.] 21After some debate with Mr O'Neill he accepts that the relief sought in paragraphs 2 and 3 of the notice of motion should not properly be sought by way of notice of motion and that an originating process, either by way of summons or statement of claim would be the appropriate process by which the relief sought in those paragraphs should be sought. 22I order that paragraphs 2 and 3 of the defendant's notice of motion filed on 25 August 2014 be dismissed without prejudice to the defendant's right to seek relief to the same substantive effect by way of summons or statement of claim as might be appropriate. 23I also dismiss paragraph 4 of the notice of motion because the application to extend caveats has already been dealt with by other orders. 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: 18 September 2014