Ki Bun Kwon v Kun Il Cha [2013] NSWSC 1372

Ki Bun Kwon v Kun Il Cha [2013] NSWSC 1372

The proceedings were dismissed because the statement of claim was manifestly deficient, disclosed no reasonable cause of action for the relief sought, pleaded no facts that could arguably give the plaintiff a proprietary interest or constructive trust over the second defendant's property, failed to plead material facts or terms of any alleged loan, and contained scandalous and irrelevant allegations; in the circumstances, including a similar claim having previously been dismissed, leave to replead was not in the interests of justice.

Jurisdiction
Australia
Judgment Date
10 September 2013
Procedural Posture
Procedure Summary Dismissal of Proceedings / Hearing of First Defendant's Application for Summary Dismissal After Plaintiff Filed a Statement of Claim
Outcome
Proceedings dismissed with costs.
Legal Topics
['summary Dismissal' 'no Reasonable Cause of Action' 'deficient Pleadings' 'scandalous and Irrelevant Allegations' 'caveatable Interest' 'limitation Period for Loan Repayable on Demand']
['civil Procedure' 'equity'] ['summary Dismissal' 'no Reasonable Cause of Action' 'deficient Pleadings' 'scandalous and Irrelevant Allegations' 'caveatable Interest' 'limitation Period for Loan Repayable on Demand']

Case Brief

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Procedural Posture

Procedure Summary Dismissal of Proceedings / Hearing of First Defendant's Application for Summary Dismissal After Plaintiff Filed a Statement of Claim

Legal Issues

  1. 1 ['Whether the statement of claim disclosed a reasonable cause of action for the relief sought.' 'Whether the plaintiff pleaded material facts capable of giving her a proprietary interest in the Bankstown property owned by the second defendant.' 'Whether the statement of claim should be struck out with leave to replead or the proceedings dismissed.' 'Whether any claim for repayment of an alleged loan made between 1979 and 1982 would be statute-barred if the loan were repayable on demand.']

Ratio Decidendi

The proceedings were dismissed because the statement of claim was manifestly deficient, disclosed no reasonable cause of action for the relief sought, pleaded no facts that could arguably give the plaintiff a proprietary interest or constructive trust over the second defendant's property, failed to plead material facts or terms of any alleged loan, and contained scandalous and irrelevant allegations; in the circumstances, including a similar claim having previously been dismissed, leave to replead was not in the interests of justice.

Court Disposition

Proceedings dismissed with costs.

Orders

  • ["The plaintiff's proceedings be dismissed." "The plaintiff pay the first defendant's costs."]