Cho v. Kim

Cho v. Kim

The Final Order was set aside because, applying the modified Miracle Feeds test, the court was not satisfied that the respondents wilfully failed to respond (Gea did not and there was doubt about Kim), the respondents responded promptly, and they advanced two defences worthy of investigation (a resulting trust claim...

Source-derived case information.

Citation
2023 BCSC 780
Parties
Claimant: Jee Hyun Cho; Respondent/defendant: Kang San Danny Kim; Respondent/attendee: Sun Hwa Gea
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
10 May 2023
Procedural Posture
Family Law Divorce and Property Division / Application to Set Aside Undefended Final Order (post Judgment)
Outcome
Final Order set aside; title to Langley Property reconveyed to Sun Hwa Gea and Kang San Danny Kim; claimant permitted to re-register certificate of pending litigation; respondents awarded costs in the cause.
Legal Topics
Setting Aside Default/undefended Final Order, Resulting Trust, Division of Family Property, Jurisdiction of Summary Trial Rule, Service of Process
Source Language
english
Family Law Property Law Trusts Civil Procedure Setting Aside Default/undefended Final Order Resulting Trust Division of Family Property Jurisdiction of Summary Trial Rule +1 more

Source-derived case record

Summary, issues, holding and outcome

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Parties

Jee Hyun Cho

Claimant

Kang San Danny Kim

Respondent/defendant

Sun Hwa Gea

Respondent/attendee

Procedural Posture

Family Law Divorce and Property Division / Application to Set Aside Undefended Final Order (post Judgment)

Legal Issues

  1. 1 Whether the Final Order obtained in the absence of the respondents should be set aside under the Miracle Feeds test
  2. 2 Whether the respondents have a meritorious defence worthy of investigation (resulting trust; significant unfairness under FLA s.95)
  3. 3 Whether the court had jurisdiction to make the Final Order under SCFR R.11-3

Ratio Decidendi

The Final Order was set aside because, applying the modified Miracle Feeds test, the court was not satisfied that the respondents wilfully failed to respond (Gea did not and there was doubt about Kim), the respondents responded promptly, and they advanced two defences worthy of investigation (a resulting trust claim and that the order effected an unequal division of family property without evidence of significant unfairness); accordingly the Final Order was vacated and the parties restored to their pre-order positions with consequential orders regarding title and costs.

Court Disposition

Final Order set aside; title to Langley Property reconveyed to Sun Hwa Gea and Kang San Danny Kim; claimant permitted to re-register certificate of pending litigation; respondents awarded costs in the cause.

Orders

  • The Final Order is set aside
  • The Registrar of Land Titles on production of a certified copy of this Order shall convey title to the Langley Property into the joint names of Sun Hwa Gea and Kang San Danny Kim