64 . Notice of originating motion (O. 54 r. 5)
IN THE SUPREME COURT OF WESTERN AUSTRALIA
HELD AT PERTH
In the matters of:
1.
CIV 2157 of 2011 or GANNAWAY -v- CHIN
[2011] WASC 252;
2.
CACV107 OF 2008: JOINT APPLICATION IN AN APPEAL
PURSUANT TO R.44 OF SUPREME COURT (COURT OF APPEAL) RULES 2005 DATED 25.7.2011
IN 44 PAGES;
3.
CIV 1877 of 2010 or RE HALL; EX PARTE CHIN
[2] [2011] WASC 155;
4.
CACV 107 of 2008 (No.2) or CHIN -v- HALL [No 2]
[2011] WASCA 96;
5.
P l of 2010 or Chin v Hall & Ors [2010] HCASL
104 (26 May 2010);
6.
CACV 107 of 2008 or CHIN -v- HALL
[2009] WASCA 216;
7.
CIV 1775 of 2008 or AUDREY FRANCIS HALL as executrix of
the estate of KENNETH DUNCAN HALL -v- CHIN [2008] WASC 255;
And
In the matters of:
8.
CIV 2509 of 202 or LAW -v- GANNAWAY as administrator of
the estate of NANCY CLOONAN HALL [No 2] [2011] WADC 195;
9.
CACV 53 of 2007 or MICHELE-MAREE GANNAWAY as
Administrator of the Estate of NANCY CLOONAN HALL v AUDREY FRANCES HALL as
Executrix of the Estate of the late KENNETH DUNCAN HALL [No.2] [2010] WASCA
173;
10.
CACV 100 of 2008 or LAW v AUDREY FRANCES HALL as
Executrix of the Estate of the Late KENNETH DUNCAN
11.
CACV 106 of 2008 or LAW v AUDREY FRANCES HALL as
Executrix of the Estate of the late KENNETH DUNCAN HALL [2008] WASCA 257;
12.
CACV 106 of 2008 or LAW v AUDREY FRANCES HALL as
Executrix of the Estate of the late KENNETH DCUNCAN HALL [2008] WASCA 257 (S);
13.
CACV 53 of 2007 OR HALL v AUDREY FRANCES HALL as
Executrix of the Estate of the late KENNETH DUNCAN HALL [2007]WASCA 94;
14. CIV
2073 OF 2003 or AUDREY FRANCES HALL As Executrix of the Will of KENNETH DUNCAN
HALL (DEC) v HALL [2007] WASC 34;
15. CIV
2509 of 2002 or MAURICE FREDERICK LAW,
CHERYL LAW AND SPUNTER PTY LTD -v- HALL [2005] WADC 75;
And
In the matter of an Ex-parte Application in CIV 2157
of 2011 for the Removal of the Errors Apparent on Court Records, pursuant to RSC O 59 r 3 and subs 25(6), 33, 43
and 59 of the Supreme Court Act,
1935 for declarative orders of the jurisdictional errors,
the cancellation of the technical errors,
review the areas of dispute and the new trials of particular areas of dispute
(the Removal of Errors of Law Apparent on the Court Records).
BETWEEN
NICHOLAS NI KOK CHIN FIRST APPLICANT
MAURICE FREDERICK LAW SECOND APPLICANT
And
MICHELE-MAREE GANNAWAY As the Administrator of
The Estate of the late NANCY CLOONAN HALL FIRST RESPONDENT
AUDREY FRANCES HALL AS the Executrix of the
late KENNETH DUNCAN HALL SECOND RESPONDENT
EX-PARTE: NICHOLAS NI KOK CHIN
EX-PARTE: MAURICE FREDERICK LAW
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NOTICE OF ORIGINATING MOTION FOR LEAVE
PURUSANT TO RSC O 67 R.5 APPLICABLE FIRST APPLICANT AS PER ORDERS OF MURRAY J
IN CIV 1689 OF 2011 DELIVERED 11.1.2011.
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Date of Document:
23rd day of January, 2012
Filed on behalf of: The First and Second Applicants in
Person.
Date of filing: 23rd day of January, 2012
Prepared by:
NICHOLAS NI KOK CHIN Phone & Facsimile: 08 92757440
387, Alexander Drive Mobile
MAURICE FREDERICK LAW Phone: 08 92961555
P.O. BOX: 399 Mobile
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TAKE NOTICE that the Supreme Court [or Court of
Appeal] will be moved at [Perth] on day the day of 2012 at the hour
of in the noon,
or so soon thereafter as counsel can be heard,
by counsel on behalf of the First Applicant Nicholas Ni Kok Chin and the Second
Applicant Maurice Frederick Law for:
1. CIV
1775 of 2008 or AUDREY FRANCIS HALL as executrix of the estate of KENNETH
DUNCAN HALL -v- CHIN [2008] WASC 255 (Master Sanderson’s
Jurisdictional error);
2. CACV 107 of 2008 or CHIN -v- HALL [2009] WASCA 216 (Justice Owen’s
Jurisdictional Error);
3. CIV 2157 of 2011 or GANNAWAY -v- CHIN [2011] WASC 252 (Justice
Simmonds’ Jurisdictional Error);
4. CIV 2509 of 2002 or LAW -v- GANNAWAY as administrator of the estate of
NANCY CLOONAN HALL [No 2] [2011] WADC 195 (DCJ Sweeney’s Jurisdictional Error);
be REVIEWED
and/or be EXPUNGED from the court records by this Removal of Errors of Law Apparent
On The Court Records Application (the Judicial Review of the Jurisdictional
Errors of the Four Judges);
AND for the following declarative
reliefs:
ORDERS SOUGHT:
The Applicants are seeking Declarative Orders from a
single judge of the Supreme Court of Western Australia or of the Court of
Appeal of the Supreme Court of Western Australia,
pursuant to s.25(6) of the Act, to
make binding declarations of rights,
which cannot be open to objection,
in terms of the following:
- Master
Sanderson’s Jurisdictional Error is his determination that there is NO NEXUS
or causal connection between First Applicant’s solicitor’s works for the late
Nancy Cloonan Hall (Nancy) in CIV 1142 of 2005 and CIV 1131 of 2006 and the
removal of the Spunter Pty Ltd’s Caveats bearing Nos 1186052 and 1186053 on
parts of the estate of Nancy viz the Hazelmere and Mt. Lawley Properties on
10.2.2006 (Sanderson Error and the High Court Rationale in P1 of 2010).
- But for
the Sanderson Error
- The Discharge
of the Spunter’s Caveats would have established the causal connection or
NEXUS between the First Applicant’s solicitor’s work for
- The
Discharge of Spunter’s Caveats and the Causal Connection would have disclosed
the Sanderson Error and David Taylor’s Dereliction of his solicitor duties
to his client the Second Applicant (The Hidden Dereliction of Duties).
- The
Hidden Dereliction of Duties of David Taylor is the subject matter of the
SAT Application of the Second Applicant on behalf of Spunter Pty Ltd in
VR158 of 2011 wherein the President of SAT Justice Chaney ordered on
15.11.2011 for David Taylor to produce bank documents by the latest date
29.11.2011 to show that the court fees of $654.20 for the filing of
CIV1131 of 2006 was paid into the Supreme Court of WA Registry between the
period from 10.2.2006 and 16.2006. The document filed by David Taylor on
29.11.2011 results in David Taylor’s confirming the fact that he had perjured
himself in his Affidavit sworn filed and dated 29.3.2007 to the effect that
CIV1131 of 2006 was never filed on 10.2.2006 or on 16.2.2006 as he could
not produce the required evidence (Fiction Concocted by David Taylor).
- The Fiction Concocted by David Taylor has since resulted in the respective Jurisdictional Errors of the following judges (the Jurisdictional Error of the Four Judges):
6.1. Master
Sanderson, heard 29.10.2008
delivered 28.10.2008,
6.2. Justice Owen
in CACV 107 of 2008 delivered 9.12.2009,
6.3. Justice
Simmonds in CIV2157 of 2011 delivered on 8 & 12.8.2011;
6.4. DCJ Sweeney in
DCCIV2509 of 2002 delivered on 8.11.2011.
- The Jurisdictional Errors of the Four Judges relate to (the issues):
7.1.
their denial of both the
Applicants procedural fairness,
7.2. identifying the wrong issues,
7.3. asking themselves the wrong questions;
7.4. ignoring relevant materials;
7.5. relying on irrelevant materials,
7.6. making erroneous findings of facts or law;
7.7. reaching mistaken conclusions of facts or law;
7.8. determination of critical facts where there is no evidence;
7.9.
making irrational and
illogical reasoning in the fact finding process;
7.10.
making purported decisions which does not render
them functus officio;
7.11.
misapprehension of the law;
- The
Four Judges have either evaded the issues either wittingly or unwittingly
and this has resulted in the Hidden Derelictions of Duties of David Taylor
and the Fiction Concocted by David Taylor (the undecided issues).
- As a
result of the undecided issues
- The
issues Before this Court relates to the following injustices that had been
caused by the Jurisdictional Errors of the Four Judges in terms of the
following (the Injustices to the Applicants):
10.1.
The First Applicant has been denied his just emoluments in the sum of
some $150k inclusive of the sum of $20k held in trust for the First Applicant
by McCallum Donovan Sweeney (The Monies held in trust for the First
Applicant).
10.2.
The Monies held in Trust for the First Applicant is the result of the
Order of Pullin JA dated 6.2.2009 in CACV 107 of 2008 that caused Mrs. Audrey
Frances Hall to provide the written undertaking to the First Applicant dated
10.2.2009 for the removal of the First Applicant Caveat J614059 (the
Undertaking).
10.3.
The Monies held in Trust for the First Applicant as a result of the
Undertaking is required to be paid to the First Applicant upon the court being
satisfied of the integrity of the Hidden Dereliction of Duties and the Fiction
Concocted by David Taylor (the Condition for the Payment).
10.4.
The Condition of the Payment has resulted in the hithereto escalation
of the legal costs to the sum of about $150k which needs to be assessed by this
court; it is necessary expenses that must be paid for from the estate of Nancy
on the ground that the solicitor’s work of the First Applicant as the Former
s.244 Salvour of Parts of the Estate of Nancy is a continuing process in CIV
1142 of 2005 and CIV 1131 of 2006 in so far as they relate to the Hidden Dereliction
of Duties and the Fiction Concocted by
David Taylor, which has been
litigated before Commissioner Sleight in CIV 1877 of 2010 or RE HALL; EX PARTE CHIN
No 2] [2011] WASC 155.
Commissioner Sleight does not have to order prerogative writ remedies
against fellow judges of the same status or ranking as himself; hence the Applicant
resort to Judicial Review of the Jurisdictional Errors of the Four Judges (the
Salvour Just Emolument);
10.5.
The Second Applicant has been denied his default judgment debts in DC
CIV 2509 of 2002 in the sum of $151, 314.59
as from 10.10.2002 plus interests as defined by paragraph 244 of the judgment
of DCJ Sweeney in DC CIV 2509 of 2002 or LAW -v- GANNAWAY as administrator of
the estate of NANCY CLOONAN HALL [No 2] [2011] WADC 195 (the Judgment Debt).
10.6.
To the extent that the Judgment Debt and the Salvour Just Emolument
have unlawfully enriched the estate of the Nancy,
both the Applicants must be reinstated
to their respective former position as if the Hidden Dereliction of Duties and
the Fiction Concocted by David Taylor never exist (the Liability for the
Judgment Debt and the Salvour’s Emolument by the Administrator of the estate of
Nancy).
10.7.
SAT VR 158 of 2011 is dealing
with the professional misconduct of David Taylor and SAT will therefore deal
with the issue of David Taylor compensating the Second Applicant for the Hidden
Duties and for the Fiction Concocted by David Taylor (the SAT VR158 of 2011
Dealings).
11. The Injustices to the
Applicants caused by the respective Jurisdictional Errors of the Four Judges
had resulted in purported judgments and purported costs orders that cannot be
enforceable resulting by those Four Judges resulting in their not becoming ex functus officio; they therefore have
the continuing obligations to put aright their purported decisions themselves
respectively so that their purported decisions do become proper judgments in
accordance with the law with their respective
errors of law removed by this Application. There are no requirements for the Applicants
to appeal to the Four Judges and to Registrar Powell as their Purported Decisions
can be corrected by the provisions of the Supreme Court Act, 1935,
namely, 25(6),
33, 43 and 59 etc (the Removal of
the Errors of Law Apparent on the Court Records).
12. The other parties involved
in the process of the Removal of the Errors of Law Apparent on the Court
Records are the following:
12.1.
Michele-Gannaway is the Administrator of the Estate of Nancy and Mr.
Chris Stoke of Messrs. Chris Stokes & Associates of Level 1 No. 459, Hay Street,
PERTH WA 6000 is her solicitor. Both
have dealt with CIV 2157 of 2011 and DCCIV 2509 of 2002.
12.2.
Ms. Chau Savas of Corser & Corser as solicitors for Spunter Pty Ltd
of Level Four,
No. 16, Irwin Chambers, Perth WA 6000 has been the solicitor for the
Second Applicant in respect of pursuing the Judgment Debt in DCCIV 2509 of 2002
but had been leading the Second Applicant on the wrong course. If she had dealt with David Taylor in respect
of Hidden Dereliction of Duties and the Fiction Concocted by David Taylor, she would have done justice to the Second Applicant
and thereby affecting beneficially the interests of the First Applicant in the
interests of justice;
12.3.
Audrey Frances Hall as the Executrix of the estate of the late Kenneth
Duncan Hall (Audrey) had fraudulently taken over the estate of Nancy
but this matter is within the purview of the Administrator of Nancy , the Administrator had solved this issue with
Audrey by paying her the sum of $702k as is evident from paragraph 8 of the
Administrator’s Affidavit sworn 9.8.2011 in CIV 2157 of 2011 (the fraud of
Audrey is solved by the Administrator).
12.4.
The Administrator must not now continue to defraud the First and Second
Applicants who are the genuine creditors of the estate of Nancy
12.5.
Mr. David Taylor of DTS Legal of Suite No.5/168,
Guildford Road, MAYLANDS WA 6051, would be liable for compensation to the Second
Applicant for his misconduct in the Hidden Dereliction of Duties and the Fiction Concocted by David
Taylor.
13. Mr. Chris Stokes of Chris
Stokes & Associates as the solicitor for the Administrator of the Estate of
Nancy in CIV 2157 of 2011 or GANNAWAY -v- CHIN [2011] WASC 252 and in DCCIV 2509 of 2002 has
been given DUE NOTICE by both the Applicants.
The Notice is to the following effects:
13.1.
Mr. Chris Stokes must not mislead
the court with regard to the Hidden Dereliction of Duties and the Fiction
Concocted by David Taylor (the Misconduct of David Taylor);
13.2.
The Integrity of the Allegations
of the Misconduct of David Taylor once finally proven in court should justify
the caveatable interests of the New caveats of the First Applicant and the
Second Applicant (the Integrity of the New Caveats);
13.3.
The integrity of the New Caveats are respectively Caveats No L550173 and
Nos. L553 573 dated 23.2.2011 which, justifies the Caveatable Interests of both the
First and the Second Applicants respectively (the Caveatable Interests);
13.4.
the Caveatable Interests warrants
that Chris Stokes should not have those New Caveats removed unless and until
both the Applicants have had their Caveatable Interests annulled by the
satisfaction of the respective debts of the both Applicants paid from the Estate
of the Nancy by the Administrator of that estate one Ms. Michele-Gannaway who
is the client of Mr. Stokes (the Purported
Misconduct of Chris Stokes);
13.5.
The Purported Misconduct of Chris Stokes would mean that if the Estate
of Nancy has already been dissipated as a result of the unwarranted removal of
the New Caveats, the former should
be held liable to the claims of both the Applicants arising from the New
Caveats being unlawfully removed in CIV 2157 of 2011 (the Liability of Chris
Stokes).
And further TAKE NOTICE that the GROUNDS
of this application for each of the above declaratory reliefs are as follows:
1. GROUNDS FOR ERRORS OF MASTER SANDERSON:
1.1. The
First Applicant performed his solicitors work for the removal of the Second
Applicant’s Caveats in CIV1142 of 2005 and appeared as Counsel for Nancy for
the hearing before Justice Jenkins on 19.1.2006;
1.2. The
First Applicant obtained the judgment of Jenkins J for which David Taylor must
comply by 10.2.2006 by filing CIV 1131 of 2006;
1.3. The
First Applicant became aware of the Hidden Dereliction of Duties and the
Fiction Concocted by David Taylor and he has since been working faithfully in
his capacity as the former s.244 LPA Salvour of part of Nancy’s estate till
today and continuing;
1.4. The
facts indicated in the preceding paragraphs 1,
2, and 3 contradicts paragraph 6 of
Master Sanderson’s judgment (the judgment) who said: “… first defendant has done nothing to preserve the property…..”
1.5. The
Second Applicant suffers the detriment of the Hidden Dereliction of his Duties
and the Fiction Concocted by David Taylor at paragraph 7 of the judgment that
no work was done by David Taylor for the Second Applicant when he said: “…this document [Affidavit] was never filed and does not form part of
the court record”.
2. GROUNDS FOR ERRORS OF OWEN JA IN CACV 107 OF 2008:
2.1. The 20 cents cover-up story by Registrar Powell in his letter
dated 11.6.2009 found at page 136 of the Yellow Appeal Book in CACV107 of 2008 is
the Fresh Evidence before Owen JA on
9.12.2009. This is because Master
Sanderson, as the primary decision
maker on 29.10.2008 did not have this evidence before him and this evidence was
not available at that time and could not have been obtained with reasonable
diligence of the First Applicant (the Fresh Evidence);
2.2. For
the Fresh Evidence to become admissible evidence for Owen JA on 9.12.2009, it (the Fresh Evidence) must have a material
effect in reversing the primary decision of Master Sanderson in accordance with
the applicable common law principle (Condition for the Admittance of the Fresh
Evidence);
2.3. The Jurisdictional Error of Owen JA is constituted by His Honor’s
refusal to comply with the Condition for the Admittance of the Fresh Evidence as
exemplified by the reason for judgment and the findings of fact by Owen JA in paragraphs
54, 55,
57 of the judgment of the Secondary Decision Maker. They therefore can
reasonably be faulted as Jurisdictional Errors warranting a Judicial Review by
this Honorable Court based upon the eleven grounds enumerated in Orders Sought
No.7: (Owen JA’s Jurisdictional Error).
3. GROUNDS FOR THE
ERRORS OF SIMMONDS J IN CIV 2157 OF 2011:
3.1. Simmonds J was required to make a
determination on the issue of the Hidden Dereliction of Duties and the Fiction
Concocted by David Taylor (the issues before Simmonds J).
3.2. If Simmonds J did not fall into Jurisdictional
Errors, he would have relied upon
the Fresh Evidence, the Condition
the Admittance of the Fresh Evidence and therefore recognize Owen JA’s
Jurisdictional Error and the eleven criteria in Orders Sought No.7 above (Simmond
J’s Jurisdictional Error).
3.3. Simmonds’ Juridictional Error would have
been corrected by the Evidence that was available before Commissioner Sleight
in CIV 1877 of 2010 which the former Judge had reference to. Despite the lack of evidence of fraud of
David Taylor, the former Judge would
have made the findings of facts made by Commissioner Sleight (Commissioner
Sleight’s findings).
3.4. The Issues before Simmonds J, Simmonds J’s Jurisdictional Error and Commissioner
Sleights Findings when complemented by the facts of the Hidden Dereliction of
Duties and the Fiction Concocted by David Taylor would have found the Caveatable
Interests of the New Caveats for both the First and Second Applicants. If this were so,
those New Caveats would not have been removed by Simonds J on 12.8.2011 but for
the purported dishonesty of Mr. Chris Stokes as solicitor for the Administrator
(the Unjustified Removal of the New Caveats).
3.5. If Mr. Chris Stokes was fair and honest as
a court officer, he would not have
misled Justice Simmonds and thereby caused the Unjustified Removal of the New
Caveats (the Purported Liability of Mr. Chris Stokes).
4. GROUNDS FOR THE
ERRORS OF DCJ SWEENEY IN DCCIV2509 OF 2002:
4.1. The Hidden Dereliction of Duties and the
Fiction Concocted by David Taylor caused the Default Judgment of DCJ Groves in
DCCIV 2509 of 2002 dated 10.10.2002 (the Default Judgment) to be left un-pursued
by David Taylor despite his having been paid legal fees for the same purpose
amounting to more than $60k by the Second Applicant (the Default of David
Taylor).
4.2. The Default of David Taylor amounted to a
criminal professional misconduct in that David Taylor was dishonest to the
Second Applicant under circumstances when he at all material times had received
legal fees and instructions from the Second Applicant since the initiation of
CIV 1142 of 2005 and CIV 1131 of 2006 together with the explicit instructions
to enforce the Default Judgment and he abandoned or neglected his duties as a
result (the Dishonesty of David Taylor).
4.3. The dishonesty of David Taylor not only
caused detriment to the interests of his client the Second Applicant but he also
caused detriment to the interests of his opposing lawyer in CIV 1142 of 2005 in
that justice to him and to his client Nancy was obstructed by David
Taylor. This had resulted in the
regulator of the legal profession in WA acting through the mala fides of the
LPCC (the subject matter of reserve judgment in VR87 of 2009 before His Honour
Judge Sharp of SAT and the decision of Murray J in the separate subject matter
of an abuse of process claim by the Principal Registrar of the Supreme Court in
CIV 1689 of 2011 against the First Applicant delivered 11.1.2011) restricting
the independent legal practice of the First Applicant (the Effects of the
Dishonesty of David Taylor).
4.4. The
Default of David Taylor, the
Dishonesty of David Taylor and the Effects of the Dishonesty of David Taylor
caused both the First and the Second Applicant to co-operate with each other in
concerted efforts to seek to prevent the Injustices caused by the
Jurisdictional Error of the Four Judges to achieve the common purpose of
vindicating their respective rights that is related to the Dereliction of
Duties of David Taylor and the Fiction Concocted by David Taylor (The Concerted
Efforts to Achieve Common Justice).
4.5. The Concerted Efforts to Achieve Common
Justice should be justified and should not be prejudiced by a wrong perception that
they are being prohibited to do so by a perceived conflicting interests which
no doubt existed at the initial stages of CIV 1142 of 2005 and CIV 1131 of 2006, which respective interests of the two Applicants
have no doubt hitherto been conflicting until 10.2.2006 but are now no longer
conflicting with each other since the Hidden Dereliction of Duties and the
Fiction Concocted by David Taylor have initially been discovered by the
Applicants (the Common Purpose of the First and Second Applicants).
4.5. The Common Purpose of the First and Second
Applicants are to seek restitution from the administrator of the estate of
Nancy for the purpose of preventing the unlawful enrichment of the said estate
of Nancy so that justice must not only be done but must be seen to be done to
the creditors of the estate of Nancy who are the First and Second Applicants
respectively (the Restitution).
Dated the 23rd day of January(Signed)
NICHOLAS NI KOK CHIN as the First Applicant
(Signed)
MAURICE FREDERICK LAW as the Second Applicant
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