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THE SUPREME COURT OF
WESTERN AUSTRALIA
2157 of 2011
MICHELE-MAREE
GANNAWAY
and
NICHOLAS NI
KOK CHIN
and
MAURICE
FREDERICK LAW
and
REGISTRAR OF
TITLES
1275 of 2012
NICHOLAS NI
KOK CHIN and
MAURICE
FREDERICK LAW
and
MICHELE-MAREE
GANNAWAY as Administrator of the Estate of NANCY CLOONAN HALL and
AUDREY
FRANCES HALL as Executor of the Estate of KENNETH DUNCAN HALL
25/7/12 138
(s&c)
MASTER SANDERSON
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON
WEDNESDAY, 25 JULY 2012, AT 9.42 AM
(In Chambers)
Continued from 5/6/12
MR N.N.K. CHIN appeared in person.
MR M.F. LAW
appeared in person.
25/7/12 139
THE
MASTER:
Now, I understand you need to sit, Mr Law?
LAW,
MR: Yes,
sir.
THE
MASTER:
Yes; well, feel free to do so.
LAW,
MR: Good;
thanks. I do have an alteration to the
medical certificate. Do you require it?
THE
MASTER: No,
that's fine.
LAW,
MR:
Okay.
THE
MASTER:
Okay; and Mr Chin?
CHIN,
MR: Yes,
sir.
THE
MASTER: All
right. Now I've received, among other
things, an application - I've just got to try and find it now - in which you
ask me to disqualify myself. Is that the
case?
LAW,
MR: Yes.
THE
MASTER:
That's the letter, yes.
LAW,
MR: Yes,
sir.
THE
MASTER:
Okay. Perhaps we had better deal
with that application first, and let me say that I've read your letter of the -
it was received on 23 July 2012, a two and a
half page letter.
CHIN,
MR: Yes,
sir.
THE
MASTER:
Yes?
CHIN,
MR: Sir, if
you do not wish to disqualify yourself you may exercise your discretion to
continue to hear this matter provided you agree to the points that we put in
the letter, the eight points about the case, because we have the apprehended
bias that you might not be doing the right thing for this case,
your Honour.
THE
MASTER:
Yes.
CHIN,
MR: If your Honour
thinks that these obstacles could be overcome, then there is no objection for
us to have you hear the case.
Your Honour, I am also seeking leave under section 6 of the
Vexatious Proceedings Act because I have been declared a vexatious litigant by
Murray J on 10 January 2012 and it's
all about this case.
THE
MASTER:
Yes.
25/7/12 CHIN, MR 140
CHIN,
MR: Is all
about Nancy Hall. When I was at the
beginning of my career as a lawyer after having become a teacher -
after having quitted as a teacher I started to become a lawyer and
Nancy Hall kept knocking on my door persistently and she was quite
incoherent sometimes and I took pity upon her because of her persistence to
help her only in one case and I put my name down for that case, CIV 1142,
and this issue of the 1142 having been decided wrongly or the issue that has
never been decided; that is, the issue that the law is very clear, the error of
law that has been made by this court - and I'm coming back to this court again
on a non res judicata issue that the issue has never been decided before and
that issue is that of Spunter Pty Ltd never having any caveatable interest
because the error of law is that a caveatable interest must be grounded on a
proprietary interest.
That
is a sine qua non of caveatable interest because I was misled all this while by
the learned Registrar Boyle, who in her article in the Modern Law Journal where
I was a student as well - and we have the belief that a caveatable interest
need not have a proprietary interest.
That is wrong and this has been decided long ago and in fact
Justice Pritchard herself also said that the caveatable interest must be
based on proprietary interest, otherwise there is no caveatable interest.
If
Spunter did not have a caveatable interest it means that I am the salvor for
the Nancy Hall estate, the two properties of Nancy Hall. It means that I would have won the case as
the salvor and it means that I am the continuing salvor under conditions of
necessity. Although I'm not entitled to
practise at the moment, I am the continuing salvor and I'm a nonparty to the
suit because I am the continuing salvor and solicitor for Nancy Hall
in the continuing pursuit of this right, of my right.
THE
MASTER: So
what you want to do, as I understand it, is you want leave to issue further
proceedings in relation to the caveat issue.
CHIN,
MR: We have
already appealed and we believe that the appeal, for which we have not got the
number for the appeal yet because ‑ ‑ ‑
THE
MASTER: But
that's against the decision of Simmonds J, isn't it?
CHIN,
MR: Against
your Honour's decision in 1775 of 2008 and also against my appeal decision
in CACV 107 of 2008, which is an appeal from your Honour's decision
but I'm coming back to it again because this is a non res judicata issue and it
is not an abuse of process of court.
25/7/12 CHIN, MR 141
THE
MASTER: But
are you just concerned by this concerned by this application to stay the
enforcement order under the
Civil Judgments Enforcement Act or do you
want to issue fresh proceedings?
CHIN,
MR:
Mr Law has already appealed against the other case, the CIV 2509 of
District Court Sweeney's decision to stay the order and that appears in
CACV 5 of 12.
THE
MASTER: So
it is before the Court of Appeal at the moment, is it?
CHIN,
MR: Yes,
and this matter has been appealed, Justice Simmonds' decision has been
appealed but we didn't have a CSV (sic) number yet and Mr Law has also
appealed and he also hasn't an ACV number yet (sic) and we intend ‑ ‑ ‑
THE
MASTER: But
just clarify for me; I'm just not quite sure:
what you're seeking at the moment is suspension of the judgment for
costs under the civil justice ‑ ‑ ‑
CHIN,
MR: Yes, we
seek - yes. I'm a person who is also -
have been ordered - costs ordered against me by Simmonds J and I ‑ ‑ ‑
THE
MASTER:
Just let me clarify, Mr Chin.
So far as I can see, what I have in front of me now is a document, a
form 9 under the Civil Judgments Enforcement Act and it's an application for a
suspension order and it's dated 20 June and it's supported by what appears
to be a joint affidavit of you and Mr Law.
CHIN,
MR: Yes.
THE
MASTER: So
what you're seeking to do is to have the judgment which is presently
outstanding, what you're seeking to do is suspend enforcement of that judgment.
CHIN,
MR: I seek
the suspension of that judgment, your Honour, plus your Honour gives
a written judgment in relation to all my submissions so that the matter ‑ ‑ ‑
THE
MASTER: But
just in relation to those submissions, are you seeking to commence a fresh
action?
CHIN,
MR: We
believe that the appeal is the fresh action.
THE
MASTER:
Okay.
CHIN,
MR: And we
do not have to because everything had already been decided and we just want the
non res judicata issue decided and the matters put right and the errors of law
in the court records to be removed so that justice is seen to be done.
25/7/12 CHIN, MR 142
THE
MASTER: But
that will be done if you succeed by the Court of Appeal. Is that the case?
CHIN,
MR: Yes,
but we can only succeed if your Honour writes a judgment in accordance
with the facts and the law of the case.
THE
MASTER: I
can't do that. That's a matter for the
Court of Appeal. If you have
appealed and the Court of Appeal is seized of the matter, the Court of Appeal
would take a very dim view of my putting my oar in.
CHIN,
MR:
Yes. Once your Honour has
given us the suspension, we will write to the Court of Appeal - and I'm going
away to see my son at Sydney; I'll be back by October and then we will write to the Court of
Appeal in the meantime to have the case reinstated.
THE
MASTER:
Right, but for the present what you're after is a suspension, so what
you're seeking to do is have the judgment or the enforcement of the judgment
suspended pending the outcome of the appeal.
CHIN,
MR: Yes,
your Honour.
THE
MASTER:
Right, okay.
CHIN,
MR: Because
there are two court orders. The other
one is Justice Sweeney against him and this is Justice Simmonds against both
of us.
THE
MASTER:
Yes.
CHIN,
MR: And so
all those things will be consolidated and will be part of the appeal.
THE
MASTER: I
understand.
CHIN,
MR: Thank
you very much, your Honour.
THE
MASTER:
Thank you. Mr Law, did you
want to add anything?
LAW,
MR: Yes,
sir. I need to have leave of the court
to act for my company.
THE
MASTER: Is
that - now I did see - is that ‑ ‑ ‑
LAW,
MR: I
didn't know at one stage that I had to ask every time I ‑ ‑ ‑
THE
MASTER: Is
that Spunter, S-p-u-n-t-e-r?
LAW,
MR:
Spunter; yes, sir.
25/7/12 LAW, MR 143
THE
MASTER:
Right, okay. What I intend to do
is look more closely - now that I understand just what you're after I will
provide written reasons for the conclusion that I have reached but just assume
for the moment that you get that, that leave, if I understood it correctly,
what you're seeking to do is suspend the enforcement of the judgment. That's what the form 9 application that has been
lodged is about.
LAW,
MR: Okay.
THE
MASTER: And
that appears to state - well, it does state that the judgment debtors are
Mr Chin and yourself personally rather than the company so at present
there isn't an application so far as the company is concerned.
LAW,
MR: Yes,
sir.
THE MASTER: But there is a judgment
against the company, is there?
LAW,
MR: Yes,
yes, but not against me.
THE
MASTER: But
not against you?
LAW,
MR: Sorry,
there is one against me, yes.
THE
MASTER: But
what you're seeking to do is to have suspended the enforcement against both you
and the company?
LAW,
MR: Yes,
thank you. Very good.
THE
MASTER:
Beyond the material that has been filed, do you want to add anything
else?
LAW,
MR: I would
request that the subpoenas for the evidence that I've asked for be accepted and
be able to be served.
THE
MASTER:
Right. Look, I will take all this
on board, I will provide written reasons as soon as I can - it will be probably
a week or so - and they will be mailed to you at your respective addresses,
which we have I think; that is, for you, Mr Chin, 387 Alexander Drive
and for you, Mr Law, PO Box 339, Midland.
LAW,
MR: Thank
you, sir. One other point I might add.
THE
MASTER:
Yes?
LAW,
MR: With my
medicals, the operation that was supposed to be performed last Thursday is put
off. Now they may ring me up and say -
so could the court expect two hospitalisations that might interfere with
the schedules?
25/7/12 LAW, MR 144
THE
MASTER:
Yes. If it comes down to that,
that will be taken into account.
LAW,
MR: Thank
you.
THE
MASTER:
Thanks, gentlemen. We will
adjourn.
AT 9.55 AM THE MATTER WAS ADJOURNED ACCORDINGLY
25/7/12 145
