IN THE SUPREME COURT
OF WESTERN AUSTRALIA CIV
2157 OF 2011
In the matter of Part
3, Division 3 of the Civil Judgments Enforcement Act, 2004 and Form 9
Application for Suspension Order
Judgment Creditor: MICHELE-MAREE GANNAWAY AS ADMINISTRATOR OF
THE ESTATE OF NANCY CLOONAN HALL
EX-PARTE: Judgment
Debtors:
- NICHOLAS NI KOK CHIN
- MAURICE LAW
Prepared by:
Nicholas Ni Kok Chin Phone
& Fax: 08 92757440
387, Alexander Drive ,
DIANELLA Mobile : 0421642735
WA 6059 Email:
nnchin1@gmail.com;
Maurice Frederick Law Phone:
08 92961555
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JOINT AFFIDAVIT OF THE JUDGMENT DEBTORS IN SUPORT OF THEIR APPLICATION
FOR A SUSPENSION ORDER PURSUANT TO S. 15 OF THE CIVIL JUDGMENTS ENFORCEMENTS
ACT, 2004: THE PREVIOUS APPLICATION WAS MADE BY A NON-PARTY SPUNTER PTY LTD INSTEAD OF MAURICE LAW AND
THEREFORE IT WAS DISMISSED BY HEENAN J ON 5.6.2012.
1.
We,
Nicholas N Chin (currently un-certificated solicitor and seeking leave under
s.6 of the Vexatious Proceedings Act, 2004 WA) of No. 387, Alexander Drive , DIANELLA
WA William
Street , HERNE HILL WA
2.
The
matters referred to in this Affidavit are based on facts and information which
we perceive with our senses and do believe to be true and correct and where
they based on other sources, we refer to those sources and we do believe them
to be true and correct as well.
3.
The First
Judgment Debtor is not liable for the costs Order of Justice Simmonds dated
12.8.2011 in CIV 2157 of 2011
under the following circumstances:
3.1. Mr. Chin is the s.244 Legal Practice Act 2003 -
Salvour of the Mt.
Lawley CIV
1142 of 2005 N0.1 by reason of the fact that Spunter Pty Ltd did not have a
caveatable interest in the two Properties (the Spunter Non-Caveatable
Interests).
3.2. The Spunter’s Non-Caveatable Interests is based
on the principle of law as enunciated in
judgment of the Supreme Court of Western Australia Full Court Lavery v R and I
Bank of Western Australia (CAN 050 494 454) – BC 9504163 in CIV 222 of 1993 dated 19.5.1995, 7.9.1995 in its Unreported
Decisions 950468S at 19 which indicates that merely having spent money on the
two Properties is not enough to support a Caveatable Interests but there must
be a proprietary interests in the Caveated Land following Dillwyn v Llewellyn
(1862) 4 De GF and J 517; ER 1285; and Ramsden v Dyson (1865) LR 1 HL 219 which
acknowledged the exception to the general rule that if a person spends money on the property of another, then prima
facei, he or she does not acquire a proprietary interest in or lien over the
property: Pettit v Pettit (170)AC 77. (Caveatable Interests must include a
Proprietary Interests).
3.3. The fact that the Spunter Pty Ltd has to date
not filed the CIV 1131 of 2006 in
compliance with Justice Jenkins Order in CIV
1142 of 2005 No.1 dated 20.1.2012 is no longer relevant because there is prima
facei evidence before the court of Spunter’s Non-Caveatable Intrerests by
virtue of the fact that the impugned Caveatable Interests must include a
Proprietary Interests (the Error of Law on the Court Records).
3.4. As a corollary to the above, the estate of
Nancy Hall through its administrator the Judgment Creditor is liable for all
the legal costs of the proceedings in CIV 1775
of 2008, CACV 107 of 2008 and CIV 2157
of 2011 so far undertaken by the First Judgment Debtor Mr. Chin in his capacity
as the statutory salvour of the two properties for and on behalf of the estate
of Nancy Hall: the subject matter of the impugned Caveatable Interests of
Spunter which should have been solved by the Removal of the Errors of Law on
the Court Records. This includes its liability to me as the Statutory Salvour
for all my legal works until today and continuing, which amounts to some $150k
although there is a promise through Justice Pullins of the Supreme Court in
CACV 107 of 2008 to pay me the promised sum of $20k from the estate as soon as
the problem with the Caveatable Interests of Spunter is resolved (the
Continuing Liability of Nancy Hall Estate).
4.
The Second
Judgment Debtor Mr. Law is not liable for the Costs Order of Justice Simmonds
in CIV 2157 of 2011 dated
12.8.2012 upon the following grounds:
4.1. Spunter Pty Ltd is the body corporate of Mr
Maurice Frederick Law (the corporate body).
4.2. Mr. Maurice Frederick Law has been carrying on
the legal proceedings with the Judgment Creditor who is the Administrator of
the Estate of Nancy Hall, with the permission of the courts through Justice
Murray in CACV1566 OF 2010, DCJ Sweeney in DC CIV
2509 of 2002 and Justice Simmonds in CIV
2157 of 2011 because the corporate body is un-financial and is unable to pay a
solicitor to represent it (the Litigant in person Representee of the body
corporate).
4.3. The body corporate is at all material times the
party to all these proceedings that began as the DC Civ 2509 of 2002 that
resulted in the Default Judgment given by DCJ Groves in favour of Spunter as
the Default Judgment Creditor (Spunter Pty Ltd as a party).
4.4. The subject costs order of Justice Simmonds in CIV 2157 of 2011
should have been against Spunter Pty Ltd as party and not against Mr. Maurice
Frederick Law as non-party: there has been a technical mistake which the
Supreme Court should correct (The Simmonds Costs Order cannot be enforced
against Maurice Law Personally).
4.5. The Simmonds Costs Order cannot be enforced
against Maurice Law Personally on the following grounds:
5.5.1. Maurice Law is never the Second Judgment Debtor
on the ground of technical mistake as indicated above, whereas Spunter Pty Ltd
is.
5.5.2. Spunter Pty Ltd is not jointly liable to the
Simmonds Costs Order together with Mr. Chin as First Judgment Debtor because
they have separate causes of action in their respective separate Caveats that
was removed by Justice Simmonds in CIV
2157 of 2011 on 12.8.2011.
4.6. The Administrator of the Estate of Nancy Hall,
the Judgment Creditor was declared by the court to be un-financial when Spunter
Pty Ltd was trying to enforce the Default Judgment of DCJ Groves, the subject
matter of DC CIV 2509 of 2002 upon
her. By 9.8.2011, the Administrator became
flushed with funds as the administrator of the estate of Nancy Hall valued at
$2.3m that fell into the possession of Mrs. Audrey Frances Hall as a result of
the decision of Jenkins J in CIV
2073 of 2003 later came back into the possession of the Administrator of that
Estate by 9.8.2011. See paragraph 8 of the Affidavit of the Administrator (in
Annexure MFL1 dated 9.8.2011 in CIV
2157 of 20011) who exchanged the 2.3m dollar estate of Nancy Hall for $702k
(the Unjust Enrichment of the Administrator).
4.7. Master Sanderson’s judgment in CIV 1775 of 2008 dated 29.10.2008 prevents the
Estate of Nancy Hall from making the payout of the legitimate debts of Nancy
Hall to the First Judgment Debtor of $20k (now estimated at $150k as a result
of the Statutory Salvour’s continuing litigation in these proceedings) and to
Spunter Pty Ltd as the Second Judgment Debtor of about $146k as indicated at
paragraph 244 of DCJ Sweeney’s Judgment in DC CIV
2509 of 2002 dated 8.11.2011. This is the reason for the deprivation of the
First and Second Judgment Debtors Rights as Creditors of the Estate of Nancy
Hall (the Reason for Deprivation of Judgment Debtors Entitlements).
5. Both
the Judgment Debtors must be reinstated to their former positions they would
been in as if the Unjust Enrichment of the Administrator had not taken place, so that the fair justice to them is reasonably
seen to be founded upon the Reason for the Deprivation of the Judgment Debtors
Entitlements.
.
SWORN at PERTH )
ON THE 12.6.2012 )
by the said First )
Judgment Debtor:
)……………………………………………………..
(Signature of NICHOLAS NI KOK CHIN)
……………………………………………………………..
Name of Witness (A
person authorized to Take Affidavits)
SWORN at PERTH )
ON THE 12.6.2012 )
by the said Second )
Judgment Debtor:
)……………………………………………………..
(Signature of MAURICE FREDERICK
LAW)
……………………………………………………………..
Name of Witness (A
person authorized to Take Affidavits)
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