The Chief Executive Officer of SAT
Attention: Panel Members in VR87 of 2008
The Legal Profession Complaints Comittee of WA.
Dear Sirs
I refer to the above matter and would like to point your attention to my COMMENT No.2 displayed at my
blogspot http://wwwnicholasnchin.blogspot.com.au/ with regard to the point of law as pointed out by Barrister
Stephen Warne at his blogspot as indicated below (the point of law).
The point of law is with reference to item 11 and Order No.6 of SAT dated 24.4.2012 of the Table in my
Written Submission in VR87 of 2009 dated 30.5.2012 served upon SAT and LPCC on the same day. It means
that Mr. White as director of Finebeam Pty Ltd, the debtor has the right to determine how he would need to
apply the payment of the $2k to the Respondent which he did on 11.8.2005. If the debtor did not make this
appropriation, then that right belongs to the creditor. In this case, the creditor and the debtor did decide to pay
the Respondent the sum of $2k for his legal costs at the time both reached a compromise on the 11.8.2005.
There is therefore no contingency payment as the legal fees of $2k was paid at the time when work had been
performed by the Respondent for the creditor. See the email below:
---------- Forwarded message ----------
From: The Australian Professional Liability Blog <warne@vicbar.com.au>
Date: Thu, May 31, 2012 at 5:05 AM
Subject: The Australian Professional Liability Blog
To: nnchin1@gmail.com
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Posted: 30 May 2012 06:48 AM PDT
I have never known until recently what the law was in relation to a creditor’s obligations and entitlements
where a debtor makes a payment which could be applied to one of several debts. I never went to look it up,
but had I needed to, I’m not sure I would have known where to look. Then I stumbled across it while reading
a judgment. Experience teaches that allocations of payments against debts can have many ramifications,
the most obvious of which is in relation to interest. This statement was recently re-stated as good law in Victoria:
When a debtor is making a payment to his creditor he may appropriate the money as he pleases, and
the creditor must apply it accordingly. If the debtor does not make any appropriation at the time when
he makes the payment the right of application devolves on the creditor.
It is a statement of Lord McNaughten in Cory Brothers & Company v Owners of Turkish Steamship ‘Mecca’
[1897] AC 286 at 293 and Deeley v Lloyds Bank Limited [1912] AC 756, 783 is apparently to like effect.
Cheers
NICHOLAS NI KOK CHIN.
(note:THIS EMAIL IS TO BE SENT SEPARATELY BY THE RESPONDENT THROUGH THE COMMUNICATION
CHANNEL TO SAT ON THE SAME DAY by facsimile).
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