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[2026] NSWSC 1076
Supreme Court of NSW
2026-09-01
Kunc J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: YD Company Pty Limited v Daesungtas Pty Limited [2026] NSWSC 1076
Hearing dates: 01 September 2026
Date of orders: 01 September 2026
Decision date: 01 September 2026
Jurisdiction: Equity
Before: Kunc J
Decision: Registrar’s decision set aside on review; proceedings transferred to District Court
Catchwords: CIVIL PROCEDURE — Pleadings — Amendment — Whether subject matter of amendment raised by or depending on current proceedings
Legislation Cited: Civil Procedure Act 205 (NSW)
Cases Cited: Tomko v Palasty (No 2) (2008) 71 NSWLR 61; [2007] NSWCA 369
Category: Consequential orders
Parties: YD Company Pty Ltd (1st Plaintiff)
Dong Keun Yoon (2nd Plaintiff)
Daesungtas Pty Ltd (1st Defendant)
Yong Jung (2nd Defendant)
Representation: Counsel: S Lee (Solicitor) (1st and 2nd Plaintiffs/Respondents)
R Notley (1st and 2nd Defendants/Applicants)
Solicitors: SR Law Office (1st and 2nd Plaintiffs/Respondents)
KWL Lawyers (1st and 2nd Defendants/Applicants)
File Number(s): 2025/00140522
Publication restriction: N/A
By notice of motion filed on 2 June 2026, the defendant applicants seek a review of a decision of Registrar Czerwinski made on 6 May 2026. That decision was to grant leave to the first plaintiff, Company Pty Ltd, to file an amended statement of claim. The effect of the amendment was to join the second plaintiff, Dong Keun , as a party to these proceedings and to seek relief in relation to the proper construction of a made on 21 December 2022 insofar as clause 7.1 of that deed contained releases of various rights between the parties to the deed.
There is no dispute as to the relevant principles governing a review of a decision of a registrar. They are conveniently set out in the decisions of Hodgson JA and Basten JA (with both of whom Ipp JA agreed) in Tomko v Palasty (No 2) (2008) 71 NSWLR 61; [2007] NSWCA 369 at [5]-[10] and [52].
There was, accordingly, no dispute between Counsel for the defendant applicants, Mr R Notley, and Mr S Lee, Solicitor, for the respondent plaintiffs, that the effect of Tomko was that the Court is not required to find error before interfering with the decision of the registrar. A review of a registrar’s decision is, in substance, a de novo hearing.
However, I have also taken into account Mr Lee's submissions that in matters of practice and procedure, including where the decision below does not bring proceedings to an end, the Court will be less inclined than it might otherwise be to interfere with a decision of the registrar. That approach is, with respect, a sensible one. Many decisions of practice and procedure are for reasons of efficiency and costs committed to registrars, who are well versed in such matters, and the Court will not encourage a situation where those decisions are regularly or lightly called into question.
Notwithstanding the respect to be accorded to decisions of registrars in matters of practice and procedure, in this case I am satisfied that the learned registrar fell into error by failing properly to apply s 64(2) of the Civil Procedure Act 2005 (NSW) in relation to amendments that the Court was to allow: “All necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings”. Those “real questions” may be matters of law or fact, or both.
In her reasons, the learned registrar said:
“…I am looking at whether the proposed amendment to the statement of claim being insertion of the relief 1(b) is a reasonable cause of action. In considering s 64 of the Civil Procedure Act and UCR 19.1, I have to consider whether the amendment determines the real questions raised in the proceedings.”
In my respectful opinion, the learned registrar erred by focussing on whether the amendment raised a reasonable cause of action rather than identifying “the real questions raised by or otherwise depending on the proceedings”. It is not enough that the proposed amendment raises “a real question”. It must be a real question “raised by or otherwise depending on the proceedings” as they are before the proposed amendment.
To appreciate the applicability of this analysis to the present case, it is necessary to appreciate this distinction:
These proceedings are a claim by the plaintiff for money alleged to be payable under the deed;
Proceedings have been commenced in the Federal Court where the issues will include whether the pre-condition to the operation of the releases in the deed have been satisfied and, if so, whether the Federal Court proceedings are barred by the deed.
The proceedings constituted by the statement of claim in this Court are a claim for a $100,000 debt under the deed. While there may previously have been some doubt or an issue between the parties as to whether or not the defendants admitted that the deed was presently binding and enforceable according to its terms, that was clarified some months ago by correspondence from the defendants’ solicitors. That correspondence was to the effect that there is no issue in the proceedings that the deed is valid and enforceable according to its terms.
The proceedings in this Court do not raise any questions about whether the release in the deed has been enlivened to the benefit of YD and Mr Yoon and, if so, the true construction of the scope of the release. However, the proposed amendment did raise those questions. It did so by adding a declaration 1(b) that “clause 7.1 of the Agreement [the releases] took effect immediately upon execution of the agreement”. The consequential factual amendments include allegations about the fact of, and the issues in, the Federal Court proceedings.
Whether the plaintiffs are entitled to the benefit of the releases in clause 7.1 of the deed may on its face disclose a cause of action. However, it is completely irrelevant to the issues raised in these proceedings, namely YD is owed $100,000 under the deed and the validity of the defences raised (which have nothing to do with clause 7.1 of the deed).
As it happens, the applicability of clause 7.1 of the deed has now been raised in the proceedings commenced between substantially the same (but not identical) parties in the Federal Court. In those proceedings, the deed has been pleaded in bar to proceedings brought by Mr Yoon, who is sought to be joined as a plaintiff in these proceedings.
The only reason that Mr Yoon would be necessary as a plaintiff in these proceedings is if the Court were to permit these proceedings to continue and raise the question of the proper construction and effect of clause 7.1 of the deed. Mr Lee, with respect quite correctly, accepted that if the proceedings continue only as a claim in debt, Mr Yoon is neither a necessary nor proper party. That is because under the deed money was payable to YD and not to Mr Yoon.
For these reasons, the amendments sought to be made by the proposed amended statement of claim are not amendments that the Court should allow for the purpose of determining the real questions raised by or otherwise depending on the proceedings in this Court. The Court will therefore set aside the learned registrar’s decision.
Two matters follow from this outcome.
First, the Court will grant leave to the defendants to file and serve an amended defence in these proceedings to make abundantly clear that they accept that the deed is valid and enforceable according to its terms. That admission will be subject to such other proper defences as are raised in the defence. As I understand the position put by Mr Notley on behalf of his clients, it must follow that if those defences are not made out, then the defendants accept that YD is entitled to the $100,000. In the traditional language of pleading, the defence is one of confession and avoidance: the deed is admitted (confessed) but other matters are pleaded by way of defence to demonstrate why the alleged debt is not owed.
The second matter arises from the quantum of these proceedings. While no doubt important to the parties, they are a debt claim for $100,000, an amount well within the jurisdictional limit of the District Court. The defences are to be allegations of variation and estoppel of a kind with which the District Court is seized in its civil jurisdiction. Assuming that there ever really was a proper reason to have commenced these proceedings in this Court, there is no reason for them to remain here. Therefore, I will also make orders transferring the proceedings to the District Court.
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YD Company Pty Limited
Daesungtas Pty Limited
(2008) 71 NSWLR 61