Lee v Surry Hills Mutual Loan Club

Lee v Surry Hills Mutual Loan Club - [2007] NSWSC 650 - NSWSC 2007 case summary — Zoe

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JUDGMENT (Appeal decisions of Local Court Magistrate - description of plaintiff) 1 HER HONOUR: This is the second time that this matter has been appealed to this Court. By amended summons filed 26 February 2007 the plaintiff seeks to appeal two decisions of His Honour Acting Magistrate Mr T G Forbes made firstly, on 17 November 2006; and secondly, on 1 February 2007. The plaintiff relied on three affidavits of Philip Yang dated 25 January 2007, 18 May 2007 and 25 May 2007. 2 By notice of motion filed 25 May 2007, Mr Lee sought an order that the solicitors on the record for the first defendant, being the persons listed in Schedule A to this notice of motion trading as Dibbs Abbott Stillman, be joined to the proceedings as second defendants. This motion initially came before Associate Justice Malpass on 5 June 2007. His Honour gave liberty to Mr Lee to renew his application at this hearing and reserved costs. Mr Lee renewed his costs application. The solicitors opposed the application on the basis that it was futile. 3 Mr Lee had sought orders in the Local Court that the solicitors pay the costs of the Local Court proceedings on an indemnity basis. The Magistrate declined to make this order because in his view the proceedings in the Local Court were competent. I heard one argument as to whether the solicitors should be joined at the outset of the hearing. I was unable to come to the view that the relief sought should not be granted because it was futile. 4 The critical issue raised in these appeals is "who is the true plaintiff in the Local Court proceedings". If the plaintiff does not exist, then the plaintiff's solicitors may have been responsible for the costs. As this issue could only be determined by hearing the merit of the appeals, in my view, it was appropriate that the solicitors be joined as the second defendants. I made such an order. 5 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 73 of the Local Courts Act 1982 (NSW) (the Act) permits a party who is dissatisfied with a judgment as being erroneous on a point of law to appeal to this Court. The onus lies on the plaintiff to demonstrate that there has been an error of law. What is a question of law (as opposed to a question of fact) was considered, inter alia, in Allen v Kerr & Anor (1995) Aust Torts Reports 81-354; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156; Carr v Neill [1999] NSWSC 1263 and R L & D Investments Pty Ltd v Bisby (2002) 37 MVR 479; [2002] NSWSC 1082. The judicial officer cannot act on evidence inconsistent with facts incontrovertibly established by the evidence - see Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588. 6 Section 75 of the Act provides that the Court may determine an appeal either (a) by varying the terms of the judgment or order, or (b) by setting aside the judgment or order, or (c) by setting aside the judgment or order and remitting the matter to the Local Court for determination in accordance with the Supreme Court's directions, or (d) by dismissing the appeal. Additionally, reference was made to Rule 50.16 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) which gives this Court the power of amendment, drawing of inferences and the making of findings of fact, and the assessment of damages and other money sums. This Court, being the higher Court, may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made. 7 Both parties urged this Court to do justice. Mr Lee's Counsel referred to s 56 of the Civil Procedure Act 2005 (NSW) (CPA).

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(1) The Local Court proceedings 8 The starting point is the initial Local Court proceedings. Leaving aside for the moment the identity of the true plaintiff, the plaintiffs in the Local Court proceedings were the members of a traditional form of mutual self help or loan club popular with members of the Korean community. Such clubs are known as gehs. On about 5 October 2001, about 33 Korean nationals living in Sydney (orally) formed a mutual loan club at Surry Hills. Yoo Keun Lee was one of the members. Two of the members took up double membership, meaning that there were in effect 35 members in all. The club operated as follows: 9 (a) every month, each member would contribute $1,500 making the total monthly contributions by the 35 members, $52,500; 10 (b) each month thereafter, the members would take it in turns to receive a distribution of the money contributed by the other 34 members during the preceding month. The members in effect took it in turns to receive $51,000 throughout the 35 week term of the club; 11 (c) after each member received his or her distribution, they would continue making monthly contributions of $2,010, being the regular monthly contribution of $1,500 plus $510 reflecting the interest payable to the club on that member's $51,000 distribution; 12 (d) the club would have come to an end by the normal passage of time in September 2004 when the last member received his or her $51,000 distribution. 13 Mr Lee's participation in the Surry Hills Mutual Loan Club is not controversial. He made $1,500 monthly contributions to the club each month up until November 2001, when it was his turn to receive the monthly $51,000 distribution. He received that payment and was thereafter required to contribute $2,010 to the club until September 2004. Mr Lee continued paying his monthly contributions of $2,010 up until April 2003. Thereafter he stopped making his monthly contributions. After April 2003 the club continued without Mr Lee's participation. Mr Lee's unpaid monthly contributions amounted to $32,160 (16 instalments of $2,010). 14 On 28 January 2005, by Statement of Liquidated Claim the plaintiff (in the Local Court) claimed damages of $32,160 for breach of a loan agreement. Schedule A contained the names of 28 individuals described as "Surry Hills Mutual Loan Club" consisting of the parties referred to in Schedule A. Paragraphs (1) and (2) of the Statement of Claim read: "1. The plaintiff herein is made up of the parties detailed in Schedule "A" attached to this statement of claim. 2. All the parties detailed in schedule A are and were at all material times members of the "Surry Hills Mutual Loan Club" ("the Club")." 15 During the Local Court proceedings, an Amended Statement of Claim (ASC) was filed. Schedule "A" became Schedule "C". Four of the names that appeared on Schedule "A" were struck out. 16 Mr Lee cross-claimed in the amount of $35,747.37; an amount claimed to be payable to Mr Lee by Mr Sin Yong Yim (a member of the Club). 17 There was only one amount claimed and throughout the pleading reference was made to the plaintiff (singular). 18 On 26 September 2005, Magistrate Forbes ordered judgment against Mr Lee in favour of the plaintiffs in the sum of $32,160 plus interest.

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28 Save for the order dismissing the cross-claim, the judgment, verdict and orders made by the Magistrate on 26 September 2005 are set aside. The proceedings are remitted back to the Local Court for determination according to law. Costs are reserved." 28 It is common ground that during the hearing of this appeal neither party referred his Honour to the decision of Papaellinas v Mossop, NSWCA, unreported, 29 July 1994, BC 9402846. I shall return to discuss this judgment shortly. 29 The parties, on the appeal before me, have interpreted the decision of Malpass AsJ differently. Mr Lee's submissions at [10] read: "10. The Supreme Court made the following relevant findings about the proceedings (ignoring the cross claim): 10.1 The Amended Statement of Claim " in its present form does have discordant features ". It does not use the term " plaintiff " in a consistent way: Judgment at [22]. 10.2 However, the preponderance of material in the Amended Statement of Claim suggested that the plaintiff was Surry Hills Mutual Loan Club: id . at [21] 10.3 Surry Hills Mutual Loan Club was not a legal entity, did not have status to enforce the judgment and came to an end in August 2004: id . at [23] 10.4 The Local Court dealt with the issues about the competence of the proceedings in some respect by treating the named members as representative parties under UCP Rule 7.4: id . at [23]; see also [18]. 10.5 The pleadings did not permit the Local Court to deal with the proceedings as representative proceedings: id : at [24]" 30 According to Mr Lee's Counsel, it followed from the findings of Malpass AsJ that the proceedings were not properly constituted because if the plaintiff was Surry Hills Mutual Loan Club, it was an unincorporated association which is not a legal entity or alternatively if the plaintiff was not Surry Hills Mutual Loan Club, the proceedings were not properly constituted as representative proceedings. The result, according to Mr Lee's Counsel, is that the proceedings are incompetent and a nullity. 31 I disagree with Mr Lee's Counsel's submissions. The starting point, I think, is that Malpass AsJ did not think it necessary to dwell on the question of who was the [true] plaintiff named in the proceedings. As Malpass AsJ added, the process in its present form did have discordant features and pointed out that there was difficulty classifying the plaintiff bringing the proceedings on a representative basis because they may not have the same interest. The crux of the reason for Associate Justice Malpass setting aside the decision, on my understanding, was because judgment was entered in favour of Surry Hills Mutual Loan Club, an unincorporated association and not a legal entity. There is no dispute that the description of the plaintiff contained in the formal judgment is incorrect and cannot stand. For the description of the plaintiff to be corrected, changed or clarified, the matter was to be remitted to the Local Court for determination according to law.

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(3) The plaintiff's notice of motion before the Magistrate 34 The plaintiff in the Local Court elected not to file a further ASC with an alternative description of plaintiff. Nor was the discrepancy with the word "plaintiff" or "plaintiffs" addressed. Instead, on 26 October 2006, the plaintiff filed a notice of motion in the Local Court which sought orders that firstly, that the order for judgment entered on 30 November 2005 in the proceedings be varied pursuant to Rule 36.17 of the UCPR in conformity with the draft order for judgment attached to the notice of motion; secondly, in the alternative that judgment be entered in the sum of "Surry Hills Mutual Loan Club comprising a number of individuals listed in schedule "C" to the Amended Statement of Liquidated Claim" for the amount set out in the order for judgment dated 30 November 2005; and thirdly, the plaintiff have leave to file forthwith in the registry any amended order for judgment made pursuant to order 1 or any amended order for judgment made pursuant to order 2. 35 On 17 November 2006, Magistrate Forbes purported to vary the name of the plaintiff under the "slip rule" (UCPR Rule 36.17). The variation sought was to change the name of the plaintiff described as "Surry Hills Mutual Loan Club" to "Surry Hills Mutual Loan Club comprising a number of individuals listed in schedule "C" to the Amended Statement of Liquidated Claim". At the hearing Mr Lee opposed the Club's application because the judgment in favour of the Club had been set aside by the 15 September 2006 Supreme Court decision. Mr Lee claimed that because the original judgment of the Local Court had been set aside by the Supreme Court, it no longer existed and it could not be varied or amended under the "slip rule" or otherwise. 36 On 17 November 2006, Acting Magistrate Forbes gave oral judgment in favour of the Club and granted the Club's application to amend the judgment. The Magistrate stated at (t 11.47-51, 17/11/2006) that he would refer to the process that was filed that included the 28 members and he would just say that his view was that they were indicating representative proceedings.

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Grounds of appeal - decision dated 17 November 2006 37 Mr Lee appeals the whole of the decision of his Honour Acting Magistrate Forbes made on 17 November 2006 on the following grounds. Firstly, that the Local Court erred in law in purporting to overrule the Supreme Court; secondly, the Local Court erred in law in holding, contrary to the holding of the Supreme Court, that the proceedings were properly constituted; thirdly, the Local Court erred in law in failing to apply the holdings of the Supreme Court; fourthly, the Local Court erred in law in failing to hold that, unless the Amended Statement of Liquidated Claim (ASC) were amended to properly constitute the proceedings, the proceedings remained incompetent; fifthly, the Local Court erred in law by taking a step in proceedings that the Supreme Court had held to be incompetent without the ASC having been amended to properly constitute the proceedings; sixthly, the Local Court erred in law by purporting, in proceedings that were incompetent, to vary the judgment made on 30 November 2005; seventhly, the Local Court erred in law by purporting to vary the judgment made on 30 November 2005, which had been set aside by the Supreme Court and no longer existed; eighthly, the Local Court erred in law by purporting to apply the "slip rule" in proceedings which were incompetent to vary a judgment which had been set aside by the Supreme Court and which no longer existed; ninthly, the Local Court erred in law by taking into account material that was not in evidence, which matter was (a) not in evidence and (b) irrelevant to whether the proceedings were properly constituted. 38 For the reasons given earlier in this judgment, it is my view that the Magistrate in purporting to apply the slip rule to a judgment that was not in existence, erred in law. 39 The Magistrate stated (t 12.5-30, 17/11/2006): "The fact that the proceedings were representative, and the inference that I would draw from the material that was filed before me in the contents of the statement of claim, that is as amended to list the members in Sch C, was that they were proceedings that related to individuals that were listed in Sch C, representative of the people listed in the original list of the loan club. As I have indicated there was an explanation of the variants between those persons and the list of people, the thirty-three people in the original list, Sch A, and that was as a result of some members leaving the loan club and their membership being taken over by others. When it is said it was erroneous to treat the proceedings as being representative proceedings, and that r 7.4 of the Civil Procedure Rules did not have application I held that they did and I read those rules, some of which were referred to in these proceedings. In my view they have application to representative proceedings and these were representative proceedings and it is not correct to say that the proceedings are incompetent because they were brought by an unincorporated association, per se, or as we have seen and heard that reference is only made as one of convenience for the purpose of proceedings. I say that is the explanation for the matters raised in para 16 of the judgment." 40 The Magistrate decided (t 14.7-20): "I THEN WILL JUST GO ON SAY THAT I GRANT THE APPLICATION THAT IS BEFORE ME, THAT IS AN APPLICATION THAT THE NOTICE OF MOTION BE IN FAVOUR OF THE PLAINTIFF AND I REFER BACK TO THE JUDGMENT I ENTERED ON 26 SEPTEMBER AND I SAY FROM THE OBSERVATIONS I HAVE MADE THAT THE JUDGMENT WOULD STAND. I am of the view that the matters I have addressed attend to the matter according to law and I say that the explanations given deal with the matters that cause concern. The proceedings returned, having been set aside and following the material I have set out today I am of the view that those slip rule amendments, having been made, the judgment was entered in accordance with the evidence and according to law and I confirm the making the order of judgment on 26 September 2005." 41 The difficulty I have with the Magistrate's decision to use the slip rule to correct the name of the plaintiff in the judgment is that there was no judgment on foot. That being so, there was no judgment in existence to which the slip rule could apply. What was done by the Magistrate could not be done. That is an error of law. 42 The purported judgment entered on 17 November 2006 is set aside.

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Grounds of appeal - decision dated 1 February 2007 46 The grounds of appeal are firstly, that the Local Court erred in law in purporting to overrule the Supreme Court; secondly, the Local Court erred in law in holding, contrary to the holding of the Supreme Court, that the proceedings were properly constituted; thirdly, the Local Court erred in law in failing to apply the holdings of the Supreme Court; fourthly, the Local Court erred in law in failing to hold that, unless the amended statement of liquidated claim were amended to properly constitute the proceedings, the proceedings remained incompetent; fifthly, the Local Court erred in law by failing to hold that, because the Club had not sought to amend the amended statement of claim to properly constitute the proceedings, the proceedings should be dismissed as incompetent; sixthly, the Local Court erred in law in failing to dismiss the proceedings as incompetent; seventhly, the Local Court erred in law in dismissing Mr Lee's notice of motion with costs; and eighthly, the Local Court erred in law in failing to order that the solicitors for the Club pay Mr Lee's costs on the indemnity basis of the proceedings in the Local Court up to and including 26 September 2005, and the costs of the proceedings in the Local Court on remitter from the Supreme Court. 47 In the light of Papaellinas, it is my view that the statement of claim does identify the plaintiffs as the named persons in Schedule C. The action has been brought by the members on behalf of the incorporated association, "Surry Hills Mutual Loan Club". The statement of claim is not a nullity, nor was there a procedural irregularity. The Magistrate was correct in dismissing Mr Lee's notice of motion. 48 The outstanding issue is, what should this Court do? There is, in effect, no judgment entered in favour of the plaintiff. The purported judgment entered under the slip rule is set aside. There has been multiple appeals and notices of motion. The costs and court time expended bears no relationship to the amount in dispute. Aside from the true identity of the plaintiff, Mr Lee had no defence to the pleading. The plaintiff is entitled to judgment in its favour. In accordance with Rule 50.16 of the UCPR, I propose to enter judgment in favour of Surry Hills Mutual Loan Club consisting of the parties referred to in Schedule C attached, against Yoo Keun Lee. I will hear short submissions on the amount due and the date from which judgment should take effect. Costs are also reserved for further short argument. SCHEDULE C No. Name 1 Sin Yong Yim 2 Chul Won Kang 3 Dong Suk Moon 5 Duk Keun Park 8 Kim Chang Heung 9 En Suk Hong 10 Hyang Soon Choi 11 Young Hun Park 12 Kim Jong Wook 13 Young Ja Kim 14 Han Sun Bang 16 Cecelia Noh 17 Shin II Kim 18 Kyung Ok Kim 19 You Eui Soon 20 Steven Hong 21 Hwa Yong Choi 22 Han Soon Ja 23 Myoung Soon Lee 24 In Kyong Om 25 Mi Jin You 26 Jin Ho Park 27 You Taek Bang 28 Hyun Ae Bang

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