IN THE HIGH COURT OF AUSTRALIA No. P1 of 2010
[PERTH REGISTRY]
BETWEEN:
NICHOLAS NI KOK CHIN Applicant
and
AUDREY FRANCES HALL
as Executrix of the Estate of Kenneth Duncan Hall First Respondent
SPUNTER PTY LTD Second Respondent
REGISTRAR OF TITLES Third Respondent
APPLICATION FOR SPECIAL LEAVE TO APPEAL
1. The applicant applies for [leave or] special leave to appeal from the whole of the judgment,the joint judgment of OWEN JA, McLURE P and BUSS JA of the Court of Appeal of the Supreme Court of Western Australia given on 9.12.2009 and published on the same day in CACV 107 of 2008 cited as CHIN V HALL [2009] WASCA 216.
Grounds
2. Paragraph 54 and 55 of the judgment below is wrong in both facts and law on the following grounds:
2.1. The legal practitioner Mr. David Taylor knowingly falsified the registry records of the Supreme Court of Western Australia in CIV 1131 of 2006 to the effect that he had paid the filing fees of $654.00 with a personal cheque and 20 cents in cash and had obtained two receipts for their payments on 10.2.2006 instead of the actual date of payment of the filing fees for CIV 1131 of 20006 being 16.2.2006. The former date being the timeline date for complying with time-being-the-essence Order of Justice Jenkins and the latter date being the non-compliance date, which has the legal effects of removing the Plaintiff’s Caveat in CIV 1142 of 2006 (the falsified court records).
2.2. The falsified court records is contained in the Affidavit sworn 29.3.2007 by Mr. David Taylor in CIV 1142 of 2006 and served upon the Defendant the late Ms. Nancy Cloonan Hall which is indicated as Annexure “DGT 14” being a document sourced from the Registry of the Supreme Court of WA as part of that Affidavit.
2.3. The learned Court Registrar Mr. D. Powell in his 11.6.2009 letter in reply to the Applicant dated 5.6.2009 refused to provide the extract of the bank statement of the Registry of the Supreme Court indicating that the filing fees for $654.20 was indeed paid by Mr. David Taylor on the 16.2.2006; instead he had confused the Court of Appeal that the filing fees was made in two portions in order to take advantage of the common law that a deposit was made for the purported filing of Writ of CIV 1131 of 2006 on 10.2.2006 instead of the actual filing date of 16.2.2006 under circumstances that that the whole of the filing fees of $654.20 never need to have been separately paid by Mr. Taylor in two portions (Registrar Powell’s refusal).
2.4. Registrar Powell’s refusal resulted in the willful fabrication and or suppression of public information pertaining to court records which works to the detriment of the Applicant as the former solicitor for the late Ms. Nancy Cloonan Hall; consequently it deprives him of his rights as the salvor of both her Hazelmere and Mt. Lawley Properties which the Applicant had lawfully salvaged on her behalf for her beneficiaries as her former solicitor (the Applicant as the salvor).
2.5. The Applicant as the salvor is being falsely alleged by the Legal Practitioners Complaints Committee as having made a false allegation against Mr. David Taylor for the falsified records which is before this Court in P36 of 2009.
2.6. Registrar’s Powell’s refusal is also working to the detriment of the estate of the late Ms. Nancy Cloonan Hall and the beneficiaries of her estate because the late Ms. Hall’s vulnerabilities were being exploited for the purpose of taking advantage of the well-known fact that the late Ms. Nancy Cloonan was suffering from the syndrome of psychiatric morbidity at all material times whilst she was alive.
2.7. Registrar Powell’s refusal had resulted in the Court of Appeal through Owen JA, McLure P and Buss JA inadvertently relying on the incorrect facts as contained in the letter of Registrar Powell dated 11.6.2009 to the Applicant with regard to the effects of the falsified court records as contained in paragraph 54 and 55 of the judgment below (Justice Owen’s reliance on the incorrect Registrar Powell’s evidence).
2.8. But for Justice Owen’s reliance on the incorrect Registrar’s Powell’s evidence, all the three Justices would have reversed Orders 1, 2 and 3 of the judgment below in favour of the Applicant instead of against the Applicant (the reversal). The reversal would thus have legitimatized the role of the Applicant as the salvor through his role as her former solicitor thus enabling him to receive his just remunerations for his meritorious services already rendered to his former client (who had died under unfortunate circumstances), in CIV 1142 of 2005.
2.9. The Applicant as the salvor would also help the Court of Appeal to set aright the just devolution of both the Hazelmere and Mt. Properties of the late Ms. Nancy Cloonan Hall to her beneficiaries in accordance with the law and fair justice thus entitling him (the Applicant) to further remunerations in continuing to act for her posthumously under conditions of necessity although he is being incapacitated by the continuing curb on his independent legal practice which forms the matter under consideration by the High Court in P36 of 2009.
Order(s) sought
3. The Applicant seeks the following judgment if special leave were granted to him and the appeal were successful including special order as to costs, in terms of the following:
3.1. Set aside the Orders of the Court of Appeal in the joint judgment of the learned Justices Owen, McLure and Buss dated 9th day of December, 2009 and the matter be remitted to the Court of Appeal for re-consideration of the following points: .
3.1.1. The Applicant as the salvor be allowed further costs for the continued proceedings in the Court of Appeal and in this appeal to the High Court to be paid for from the salvaged Hazelmere and Mt. Lawley properties.
3.1.2. Mr. David Taylor’s evidence that the CIV 1131 of 2006 was filed on 10.2.2006 is perjured evidence and is contradicted by Justice Owen’s reliance on the incorrect Registrar Powell’s evidence which should be expunged from the court records on the ground of its unreliability and lack of credibility.
3.1.3. The veracity of both Registrar Powell’s evidence and David Taylor’s evidence that the CIV 1131 of 2006 was filed on 10.2.2006 in compliance with Justice Jenkins Order in CIV 1142 of 2005 therefore lacks credibility and therefore Spunter Pty Ltd’s caveats on both the Hazelmere and the Mt Lawley Properties of the First Defendant ought to be removed or be nullified in its legal effects from as from the 10.2.2006, thus empowering the Applicant as salvor as from that date of its nullification in accordance with s.138B(2) of the Transfer of Land Act, 1893 (WA).
3.1.4. The only persuasive and authentic evidence as to the actual filing date of Writ CIV 1131 of 2006 occurred only on 16.2.2006 as being verified by the circumstantial evidence contained within the appeal records and the court records in CIV 3086 of 2009 for the unsuccessful ex-parte application of the Applicant for certiorari orders before the Honourable Chief Justice Wayne Martin Q.C. This Ex-parte Application was dismissed on the grounds, inter alia, that the Chief Justice did not have the necessary jurisdiction to grant these Certiorari Orders applied for by the Applicant.
3.1.5. Despite the dispute of the Applicant’s status of independent legal practice with the regulator of the Legal Profession in WA as contained in his appeal in P36 of 2009, the Applicant be allowed to make the necessary claim for his remuneration as a solicitor in CIV 1142 of 2005 and his expenditure of his further time and expertise in seeking to achieve a just settlement of the dispute with the Respondent in both the Court of Appeal in CACV 107 of 2008 and in this Appeal, under conditions of necessity in his capacity as a barrister and solicitor.
3.1.6. The rectification of the error of facts caused by the falsified court records, Registrar’s Powell,s refusal and Justice Owen’s reliance on the incorrect Registrar Powell’s evidence be remitted to the Court of Appeal such that Orders 1, 2 and 3 be reversed accordingly.
3.1.7. Costs of this Application and all other costs so far incurred by the Applicant on an indemnity basis be paid by the Respondent.
Amended the 4th day of January, 2010
..................(signed)..................
( Applicant or Applicant's solicitor )
To:
The First Respondent Audrey Frances Hall as executrix of the estate of the late KENNETH DUNCAL HALL through her solicitors: Mc Callum Donovan Sweeney, 2nd Floor, 16, Irwin Street, Perth WA 6000. Phone: 08 9325 9353.
The Second Respondent SPUNTER PTY LTD through its Directors Maurice Law and Cheryl Law of PO Box 399, MIDLAND WA6936 or 87, William Street, HERNE HILL WA 6056, Phone: 08 9296 1555.
The Third Respondent, REGISTRAR OF TITLES Atten: Ms. Brooke Germon, Senior Registration Officer of Complex Dealings Dept., Landgate, PO Box 2222, MIDLAND WA 6936, Phone: 08 9273 7355, Email address: Brooke.germon@landgate.wa.gov.au Ref: Caveat: J614059.
TAKE NOTICE: Before taking any step in the proceedings you must, within 14 DAYS after service of this application, enter an appearance in the office of the Registry in which the application is filed, and serve a copy on the applicant.
THE APPLICANT'S SOLICITOR IS:
NICHOLAS NI KOK CHIN – LITIGANT IN PERSON
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