2014 Ghana 5295016 Unjust Enrichment

A

1. B regional housing association;

2.C

3. Stock companies D.

4.E

April 7, 2015

May 12, 2015

1. The plaintiff's claims against the defendants are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendants shall pay to each Plaintiff 75,00,000 won with 5% interest per annum from September 30, 2014 and 20% interest per annum from the next day to the day of full payment.

1. Basic facts

The following facts are not disputed between the parties:

A. Defendant B District Housing Association (hereinafter “Defendant Association”) is a housing association established to build a regional housing association of approximately KRW 7,469 square meters on a site in Dongjak-gu Seoul Metropolitan Government, and a regional housing association of approximately 42,498 square meters on a total floor area (hereinafter “the apartment of this case”) in order to sell it to its members. Defendant C is the head of the Defendant Association, Defendant D Co., Ltd. (hereinafter “Defendant Co., Ltd”) is an agent for the execution of the Defendant Association, and Defendant E is the representative director of the Defendant Company.

B. On July 7, 2011, the Defendant Cooperative obtained authorization from the head of Gangdong-gu. On November 201, 201, the Plaintiff entered into a contract for joining a regional housing association (hereinafter referred to as the “instant contract for joining the association”) with the content that the Plaintiff would sell a household with the area of 85 square meters for exclusive use by 85 square meters of the instant apartment unit to be newly established between the Defendant Cooperative and the Plaintiff around November 201, to KRW 549 million (the members’ charges are KRW 524 million, the agency expenses are KRW 25 million).

C. Pursuant to the instant agreement to join the association, the Plaintiff paid the Defendant the down payment of KRW 30 million at the time of the contract, the intermediate payment of KRW 30 million on July 25, 201 (i.e., the intermediate payment of KRW 5 million + the intermediate payment of KRW 25 million), the intermediate payment of KRW 12.5 million on September 7, 201, and the intermediate payment of KRW 2.5 million on September 8, 201.

D. Around September 25, 2014, the Defendant Union sent a peremptory notice to the Plaintiff that the Plaintiff would cancel the instant partnership’s subscription agreement if the Plaintiff did not pay the unpaid intermediate payment and late payment charges under the instant union subscription agreement by October 22, 2014, and the Defendant Union’s preparatory brief dated April 6, 2015, stating that “the instant union subscription agreement shall be terminated on the ground that the intermediate payment and late payment charges under the instant union subscription agreement are unpaid.”

2. The plaintiff's assertion

A. Claim for restitution of unjust enrichment (claim against the Defendant Union)

1) At the time of entering into the instant association, Defendant C and E were well aware that the Plaintiff was not entitled to membership in the Defendant association.

2) Defendant C and E promised to the Plaintiff that “The design, supervision, and VE of the instant apartment construction and the sales business conducted by the Defendant Cooperative will allow the Plaintiff to perform the instant apartment construction and sales business, but the business is difficult to operate, because the instant apartment is not sold in the present time, and the right to sell is pressured only formally, and deposit KRW 75 million, so that the right to sell may be redeemed through a voluntary sale after completion of the service business (design, supervision, and VE).”

3) The Plaintiff believed the above commitment with Defendant C and E and entered into the instant partnership membership agreement formally with the Defendant Union, which constitutes a false declaration of conspiracy, and thus becomes null and void.

4) Therefore, the Defendant Union is obligated to return KRW 75 million received from the Plaintiff as a member’s contribution, etc. as unjust enrichment.

B. Claim for damages due to tort (claim against the defendant)

1) Defendant C and E, by deceiving the Plaintiff, “Defendant C and E would have the Plaintiff perform the design and supervision of the instant apartment construction and sales business conducted by the Defendant Cooperative,” thereby acquiring KRW 75 million from the Plaintiff.

2) The above deception by Defendant C and E constitutes an act pertaining to the duties of the Defendant Union and the Defendant Company. As such, the Defendant Union and the Defendant Company jointly with Defendant C and E, are obliged to compensate the Plaintiff for the above KRW 75 million, which is damages caused by the tort by Defendant C and E.

3. Determination

A. Determination on unjust enrichment claims

The evidence submitted by the Plaintiff alone with regard to whether the membership agreement of the instant association member was a contract by a false declaration of conspiracy is insufficient to acknowledge it, and there is no other evidence to acknowledge it. The Plaintiff’s above assertion is without merit.

B. Determination on the claim for damages

With respect to Defendant C and E’s deception that “the design and supervision of the instant apartment construction and the sales business carried out by the Defendant Cooperative would allow the Plaintiff to carry out the business of constructing and selling the instant apartment,” there is insufficient evidence to acknowledge it, and there is no other evidence to acknowledge it. The Plaintiff’s assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Kim Jong-hee