Copyright in this document is reserved to the State of Western Australia. Reproduction of this document (or part thereof, in any format) except with the prior written consent of the attorney-general is prohibited. Please note that under section 43 of the Copyright Act 1968 copyright is not infringed by anything reproduced for the purposes of a judicial proceeding or of a report of a judicial proceeding.
THE SUPREME COURT OF WESTERN AUSTRALIA
1112 of 2007
TIMOTHY ROBIN THIES
and
PAUL CHUNG KIONG CHIN
and
REGISTRAR OF TITLES
KENNETH MARTIN J
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON THURSDAY, 17 JUNE 2010, AT 9.17 AM
(In Chambers)
Continued from 13/5/10
MR D.S. ELLIS appeared for the plaintiff.
17/6/10 25
(s&c)
THE ASSOCIATE: CIV 1112 of 2007, Thies v Chin.
KENNETH MARTIN J: Yes, Mr Ellis?
ELLIS, MR: May it please the court, I appear on behalf of the plaintiff in this matter. I wonder if I might address the court from this side of the bar table as I expect I'll be back here soon.
KENNETH MARTIN J: Yes, by all means. Mr Chin, you're seeking to appear on this matter. Is that right?
CHIN, MR: Yes, your Honour. Say that again, please. I cannot hear well.
KENNETH MARTIN J: You are seeking to appear in this matter, which is the matter concerning your son?
CHIN, MR: Yes, sir.
KENNETH MARTIN J: Have you read my reasons for decision that were published in this matter?
CHIN, MR: Yes, sir. Your decision - I'm disputing that because - - -
KENNETH MARTIN J: Well, this isn't the place to dispute it, Mr Chin.
CHIN, MR: I've already explained, sir, that I am never the solicitor for my son. I'm only his father and I have got a moral and legal obligation to protect my son.
KENNETH MARTIN J: This is ancient history, Mr Chin. We've dealt with this. If you don't like my decision, you know where to go.
CHIN, MR: No, but, sir - - -
KENNETH MARTIN J: I'm not giving you leave to appear on this matter, full stop.
CHIN, MR: Please, please. Your decision does not have any orders, so I cannot appeal against that decision, and I asked you to review the decision and that you did not - your reason for judgment is deficient in that you did not address all the issues that is in the submission and therefore - - -
KENNETH MARTIN J: Well, there's a place to deal with that, Mr Chin, and that's not here. Just take a seat. I want to hear from Mr Ellis. Yes, Mr Ellis?
ELLIS, MR: I think - - -
KENNETH MARTIN J: Sit down, Mr Chin.
17/6/10 CHIN, MR 26
ELLIS, MR: When this matter was before you last, we indicated we would be back before you today for general directions.
KENNETH MARTIN J: Yes.
ELLIS, MR: The issue which your Honour raised on the last occasion was, I suppose, the continued need for the caveat over the land of the first defendant.
KENNETH MARTIN J: Yes.
ELLIS, MR: I've taken some further instructions. The circumstances which occurred were that a memorandum of consent orders was prepared and signed by the parties, as was a form of withdrawal of caveat. My instructions are that that withdrawal of caveat having been prepared and considered by Mr Thies, he was entitled to payment of the sum of $650.
KENNETH MARTIN J: Under the deed, I think.
ELLIS, MR: Under the deed, and that sum not having been paid, he was entitled to maintain the caveat.
KENNETH MARTIN J: Now, this was back in 2008, I think.
ELLIS, MR: What happened was that the caveat - sorry, the withdrawal of caveat was sent to the registrar. I'm instructed that that was in error. Mr Thies then instructed the registrar not to process the caveat.
KENNETH MARTIN J: The withdrawal of caveat?
ELLIS, MR: Yes. I'm sorry, your Honour.
KENNETH MARTIN J: That's all right.
ELLIS, MR: And that was the situation until yesterday. Although Mr Thies maintains that he is entitled to have the caveat remain on foot and he is entitled to payment of $650, he has taken the step of instructing the registrar to proceed with withdrawal of the caveat and has forwarded instructions to the registrar to that effect.
In the circumstances what we would seek to have occur in the matter now is for an order to be made in terms of the memorandum of consent order, which is on the file. There's a copy of it in Mr Chin's affidavit of 26 May in CIV 1903 of 2008. That's a convenient place to find - - -
KENNETH MARTIN J: Let me see if I can locate the original. I did find it at one point in my review of the file, Mr Ellis, so I'm familiar with the document. What's its date?
17/6/10 ELLIS, MR 27
ELLIS, MR: It was delivered to the Supreme Court on 1 May 2008 by Mr Chin senior. It's dated 1 May 2008.
KENNETH MARTIN J: 1 May 2008. All right, I've got it.
ELLIS, MR: And so we would seek orders but in terms of the memorandum.
KENNETH MARTIN J: Yes.
ELLIS, MR: I have a copy of Mr Thies's fax to the registrar of titles, if that would assist.
17/6/10 ELLIS, MR 28
KENNETH MARTIN J: Yes. I will receive that, Mr Ellis. Thank you.
ELLIS, MR: The other documents are, I think, the background correspondence.
KENNETH MARTIN J: So who is actually paying the fee associated with the withdrawal of caveat?
ELLIS, MR: I don't have instructions about that point, your Honour.
KENNETH MARTIN J: Would I be right in thinking by reference to how bureaucracies operate that if the fee is not paid then it won't be processed?
ELLIS, MR: That’s might be right but I wouldn't be surprised if the fee has already been paid since the withdrawal of caveat is in the hands of the registrar.
KENNETH MARTIN J: Yes.
ELLIS, MR: I don't know how much it is, your Honour.
KENNETH MARTIN J: I seem to recall a figure of about $600 being mentioned at some point.
ELLIS, MR: The price of bureaucracy has gone up.
KENNETH MARTIN J: All right. I don't have any difficulty as a matter of principle with the withdrawal of caveat being processed by the registrar. The orders of course of Templeman J back in February 2007 were that the caveat K17968 be extended until further order and what I speculated about with you last time was that the court had the capacity under order 1 of Templeman J's orders to essentially bring that extension to an end.
ELLIS, MR: Yes.
KENNETH MARTIN J: If that is not necessary then of course the withdrawal of caveat can operate on its own terms and I am very happy to see that done. The other components of the orders though, as were proposed by the consent that was submitted back in May 2008, were that the action be dismissed and that there be no order as to costs.
ELLIS, MR: Yes, your Honour.
KENNETH MARTIN J: Now, although I am not hearing from Mr Chin because it seems to me that he can't appear and be heard today that's not to say that someone at some later point, properly instructed, who doesn't have a conflict might wish to say something about that on behalf of Paul Chin.
17/6/10 ELLIS, MR 29
9.23
ELLIS, MR: Your Honour, we say that the consent orders are made pursuant to an agreement between the parties but I take your point.
KENNETH MARTIN J: The difficulty is that - let me just assess this document. There was a deficiency - it was submitted to Master Sanderson for approval. The master could not approve it because there was an issue about noncompliance with order 42 rule 8, the difficulty being that I think the plaintiff in person was one thing, he being a solicitor. The first defendant, Paul Chin, appears to have signed it. The difficulty
ELLIS, MR: In the circumstances perhaps the appropriate thing might be simply to adjourn CIV1112 sine die.
KENNETH MARTIN J: Yes.
ELLIS, MR: I mean, so that there is an obligation on Mr Paul Chin to do all things necessary to procure orders in those terms but that's not the matter that we are in a position to pursue today.
KENNETH MARTIN J: No, that's true. All right. I think what I am minded to do then is to see what happens with the progression of the withdrawal of caveat that has been lodged in accordance with the instruction of Mr Thies of yesterday. I will adjourn the matter and if of course the caveat is in fact withdrawn pursuant to that withdrawal then there is probably very little left in that action. I am not minded at the moment to completely dismiss it bearing in mind the consideration that I mentioned, Mr Ellis, which is that at some point somebody properly instructed, without a conflict, might wish to make a submission to me about that issue.
So I will receive the facsimile of 16 June and I will make no orders other than to adjourn CIV1112 of 2007. I think I should adjourn that to a review date so it doesn't fall into a black hole. I will adjourn it to my CMC list on Thursday, 5 August.
CHIN, MR: Can I be away, sir, if I - I want to be away maybe for July and August.
KENNETH MARTIN J: Mr Chin, you are not appearing on this matter so it doesn't concern you.
CHIN, MR: Okay.
KENNETH MARTIN J: So I will bring the matter back at 9.15 on 5/8/2010 just to review what has occurred in respect of the withdrawal of the caveat, Mr Ellis.
17/6/10 ELLIS, MR 30
ELLIS, MR: Thank you.
AT 9.30 AM THE MATTER WAS ADJOURNED UNTIL
THURSDAY, 5 AUGUST 2010
17/6/10 ELLIS, MR 31
No comments:
Post a Comment