Monday, April 27, 2020

WHY DID THE COURTS IN WA GO WRONG?

SEE: https://www.dropbox.com/s/wk83ckxt9ewuou8/STA-PARTII-S%284%29%285%29--COURTS%20WRONG-220-42020.pdf?dl=0


Table of Contents

WHY DOES THE INVESTIGATOR MR. SEAN POPPERWELL AS THE APPOINTED LEGAL PRACTITIONER CONTINUE TO MISLEAD LAW MUTUAL:
1) THAT THE DECISION OF THE THREE-TIERED COURTS IS CORRECT, WHEN IT IS PLAINLY WRONG.
2) THAT THE CLAIMANT DO NOT HAVE EXCLUSIVITY RIGHTS TO UNIT 1/383 VIS-A-VIS THE INTEGRITY OF THE SEVEN DOCUMENTS WHICH ST. MARKS APPLIED FOR THE PLANNING APPROVAL FOR VICTORIA ROAD LUNCH BAR APPROVED ON 19.12.1997.  
3) THE SEVEN DOCUMENTS ARE NOT EVIDENCE IN WRITING PURSUANT TO S.34(1)(a) BY OPERATION OF LAW HEREUNDER.
4) THAT THE INSURED DID NOT CONVEY A “LEMON DEFECT” IN TITLE TO THE CLAIMANT ON 23.2.2000 DISCOVERABLE ONLY ON 14.2.2016.
5) WHY DID THE INVESTIGATOR EXCEEDED HIS BOUNDS AS THE APPOINTED LEGAL PRACTITIONER TO MAKE FRIVOLOUS AND VEXATIOUS ALLEGATIONS BASED ON HIS OWN ASSUMPTIONS AND NOT ON THE FACTS OF THE CASE?
6) WHY DID THE INVESTIGATOR  MAKE THE FRIVOLOUS ASSUMPTIONS THAT HE IS NOT AN INDEPENDENT LEGAL EXPERT WHEN IT IS CLEAR THAT HE OWE DUTIES OF CANDOR AND INDEPENDENCE TO BOTH THE INSURED AND THE INSURERS AND BY WAY OF EXTENSION TO THE CLAIMANT AS BENEFICIARY OF THE INSURED’S CLAIM?
7) WHY DID THE INVESTIGATOR MAKES THE FRIVOLOUS ASSUMPTIONS THAT THE CLAIMANT IS NOT THE BENEFICIARY OF THE INSURED CLAIM’S WHEN THE CLAIMANT’S CLAIMING ON BEHALF OF THE INSURED AS BENEFICIARY HAS ALREADY BEEN ACCEPTED BY LAW MUTUAL PRIOR TO HIS APPOINTMENT AS PER THE CLAIMS PROTOCOL AS OUTLINED IN THE MASTER POLICY?
8) WHY DOES THE INVESTIGATOR STATES THAT IT IS “UNFORTUNATE” FOR THE CLAIMANT TO BE CORRESPONDINGWITH THE UNDERWRITERS AND NOT WITH HIM ALONE, WHEN IT IS CLEAR THAT THE INVESTIGATOR IS NOT MAKING HEADWAY IN HIS DUTIES AS INVESTIGATOR, SANS ARBITRATOR SANS ASSESSOR?
9) WHY DOES THE INVESTIGATOR NOT COMPLY WITH HIS DUTIES TO PROVIDE HIS RECOMMENDATION TO LAW MUTUAL ON HOW BEST TO SETTLE THE CLAIMANT’S CLAIM BASING ON THE COSTS IMPLICATIONS OF NOT SETTLING EXPEDITIOUSLY AND THE MOST EFFICIENT AND COST EFFECTIVE WAY OF SETTLEMENT WITH THE CLAIMANT?
10) . WHY DOES THE INVESTIGATOR REJECTED AN ACCREDITED SOLICITOR MR. JOHN MELIS WHO HAD INVESTIGATED ALL RELEVANT FILES  AND CAME TO THE FOREGONE CONCLUSION THAT THE CLAIMANT IS ENTITLED TO MAKE THE CLAIM FROM THE INSURED THROUGH LAW MUTUAL?
11) WHY THERE IS NO LEGAL PRACTITIONER AVAILABLE IN WA WILLING TO TAKE UP THIS CASE FOR THE CLAIMANT?
12) WHY DOES IT TAKE A SOLICITOR FROM NSW TO DARE TO SPEAK UP FOR THE RIGHT OF THE CLAIMANT WHILST LEGAL PRACTITIONERS IN WA ARE SCURRYING FOR COVER?
13) WHY IS THE RULE OF LAW NOT BEING UPHELD IN WA?  

1. UNIT 1/383 EXCLUSIVITY RIGHTS: NO NEED TO ANNOTATE IN TITLE DEEDS OF DOMINANT TENEMENT S.4(5) STA- Part II — Strata schemes and survey strata schemes

[Heading inserted: No. 58 of 1995 s. 7.]
Division 1 — Creation of lots and common property
4. Subdivision into lots and common property
(1) Land may be subdivided into lots, or lots and common property, by the registration of a strata plan or a surveystrata plan.
(1a) A strata plan is a plan that —
(a) is described as such in its title or heading; and
(b) shows the whole or any part of the land comprised in the plan as being divided into 2 or more lots; and
(c) complies with section 5,
and includes any amendment duly made to that plan.
(1b) A surveystrata plan is a plan that —
(a) is described as such in its title or heading; and
(b) shows the whole or any part of the land comprised in the plan as being divided into 2 or more lots; and
(c) complies with section 5A,
and includes any amendment duly made to that plan.
(1c) Except as otherwise allowed by the regulations, a lot can only be created in a surveystrata scheme as a cubic space lot (limited in height and depth) if the balance of the land above and below the lot is common property.
(2) Where a strata/surveystrata plan is registered under this Act, the lots comprised in the plan, or any one or more of them, may devolve or be transferred, leased, mortgaged or otherwise dealt with in the same manner and form as land held under the provisions of the Transfer of Land Act 1893.
(3) A strata/surveystrata plan shall, for the purposes of the Transfer of Land Act 1893, be deemed upon registration under this Act to be embodied in the Register; and notwithstanding the provisions of that Act, a proprietor shall hold his lot and share in the common property subject to —
(a) any interests for the time being notified on the registered strata/surveystrata plan; and
(b) any amendments to lots or common property shown on that plan.
(4) Where a strata/surveystrata plan is registered under this Act, a memorial shall be entered on the certificate of title relating to the parcel and thereupon the Registrar of Titles may create and register a separate certificate of title for each lot together with the share of common property appurtenant to that lot.
(5) Easements and restrictions as to use implied or created by this Act, other than an easement created by section 5D, shall take effect without any memorial or notification in the Register in relation to the dominant or servient tenements and without any express indication of those tenements.
(6) Subject to this section, any transfer, lease, mortgage or other dealing affecting a lot has the same effect in relation to the lot as a similar dealing affecting a lot on a plan of subdivision lodged pursuant to section 166 of the Transfer of Land Act 1893 has in relation to such a lot.
[Section 4 amended: No. 58 of 1995 s. 8 and 95; No. 61 of 1996 s. 8; No. 81 of 1996 s. 153(1).]

2. STRATA TITLES ACT 1985 - SECT 5- STRATA PLAN REQUIREMENTS:  

(a)         consist of a location plan and a floor plan in respect of the parcel; and
(aa)         where section 3(2)(a) or 3AB applies, contain a statement in the prescribed form describing all of the boundaries of a lot, or part of a lot, on the plan that are fixed by reference to a building or part of a building; and
(b)         bear a statement containing such particulars as may be necessary to identify the title to the parcel; and
(c)         be accompanied by a schedule specifying, in a whole number, the proposed unit entitlement in respect of each lot into which the parcel is to be subdivided and specifying also the proposed aggregate unit entitlement; and
(d)         have endorsed on it the name of the scheme; and
(e)         have endorsed on it the address of the parcel; and
(f)         contain such other features as may be prescribed.
[(2)         deleted]
[Section 5 amended: No. 84 of 1994 s. 46; No. 58 of 1995 s. 9; No. 61 of 1996 s. 9.]
STRATA TITLES ACT 1985 - SECT 5D (NOT APPLICABLE)
        (1)         A survey-strata plan lodged for registration may, in accordance with this section, provide for easements that will have effect on registration of the plan.
        (2)         An easement that may be provided for under this section on a survey-strata plan is an easement —
            (a)         of a kind prescribed by the regulations made for the purposes of section 5H; and
            (b)         having effect in favour of a lot (the dominant lot ), and against another lot (the servient lot ), in the scheme to which the plan relates.
        (3)         An easement under this section is created on the registration of the plan if there are noted on the plan —
            (a)         the location of the easement; and
            (b)         the dominant and servient lots; and
            (c)         a specification of the easement by use of the short form description prescribed by the regulations for that kind of easement.
        (4)         A notation under subsection (3)(a) or (b) is to be in accordance with the regulations.
        (5)         This section is in addition to any other method by which an easement may be created in respect of lots in a survey-strata scheme.
        [Section 5D inserted: No. 61 of 1996 s. 11.]

3. STRATA TITLES ACT 1985 - SECT 5H  NOT APPLICABLE

(1)         The regulations may prescribe —
(a)         the terms, conditions and provisions of and relating to easements that may be created under section 5D; and
(b)         a short form description by which each kind of easement may be referred to and which is to be deemed to be a reference to the full terms, conditions and provisions of an easement of that kind.
(2)         Regulations made for the purposes of subsection (1)(a) may make provision for and in relation to —
 (a)         liability for the costs of the upkeep of an area over which an easement is created; and
(b)         a proprietor’s right of access to an area over which an easement is created to inspect any thing or carry out work; and
(c)         the proprietor of the dominant lot keeping the proprietor of the servient lot indemnified in respect of liability arising from the use of, or the activities undertaken in, an area by the first-mentioned proprietor; and
(d)         the circumstances in which an easement is terminated where a building to which it relates is destroyed.
(3)         Regulations made for the purposes of subsection (1) may provide that —
(a)         in specified circumstances a proprietor of a lot is to be taken to have agreed to undertake any positive obligation specified in the regulations in connection with an easement; and
(b)         any such obligation runs with the land and is binding on a succeeding proprietor of the lot.
(4)         If the regulations prescribe any easement for access or use of light or air, section 121 of the Property Law Act 1969 does not apply to the creation of any such easement under section 5D.
        [Section 5H inserted: No. 61 of 1996 s. 11.]

4. NO NEED TO REGISTER EXCLUSIVITY RIGHTS ON TITLE DEEDS OF EITHER DOMINANT LAND UNIT 1/383 AND THE NINETEEN SERVANT LANDS IN TLA UNLESS DIRECTED BY REGISTRAR IN SUBS: 136C(6) IN TLA: 

TRANSFER OF LAND ACT 1893 - SECT 136C 

136C .   Notation of easements on subdivision plans 

(1)         A proprietor of land that is a subject of a plan may note, in an approved form, on the plan the location of an easement to which the land is proposed to be subject.
(2)      An easement cannot be noted on a plan unless the land to be burdened by the easement is a subject of the plan but any land to be benefited by the easement need not be a subject of the plan.
(3)         An easement for the benefit of —
(a)         the local government in whose district the land is situated; or
(b)         a public authority,
may be noted on a plan under this section notwithstanding that the benefit of the easement would not be in respect of land.
(4)         Where an easement is noted on a plan in accordance with this section an instrument in an approved form may, but need not, be lodged in relation to the plan unless, under subsection (6), certain information is required to be specified in an instrument and where an instrument is lodged the prescribed fee shall be paid for the lodgment of the instrument.
(5)         The following information about the easement shall, subject to subsection (6), be specified in either the plan or in an instrument lodged in relation to the plan, or in both the plan and the instrument —
 (a)         the land to be burdened by the easement; and
 (b)         either —
 (i)         the land to be benefited; or
 (ii)         the name of the local government or the public authority to be benefited,
                by the easement, as the case may be; and
 (c)         a description of the easement, whether by way of a short form, a modified or supplemented short form or in another manner; and
 (d)         if the easement is for a particular term, the duration of the term; and
 (e)         any prescribed matter.
 (6)         The Registrar may issue directions to the effect that any information referred to in subsection (5) is to be specified in either the plan or in an instrument lodged in relation to the plan, or in both the plan and the instrument and any such direction shall be published in a document a copy of which is available to the public free of charge.
        [Section 136C inserted: No. 81 of 1996 s. 81; amended: No. 6 of 2003 s. 44.]

5. EXPLANATORY MEMORANDUM TO PROPERTY LAW BILL 1969 PART V: INSTRUMENTS TO EVIDENCE EXCLUSVITY RIGHTS ARE IMPLIED: PART V COVENANTS OF PLA:

Clauses 45 to 52 will obviate the need in conveyance and deeds including company charges, for many lengthy covenants and conditions to be spelt out.  They will now be implied by virtue of this Part.  The result will be to shortern many conveyancing document and save expenses.  They will bring to the State into line with other States (except Queensland) and dispense with the need for a special form for use in Western Australia when a document is to be prepared on a “all-States” basis as often occurs with charges given by companies whose operations are nation wide.   

6. THE SEVEN INSTRUMENTS OF THE EXCLUSIVITY RIGHTS REFERRED TO BY JUSTICE VAUGHAN IN PARAS. 32, 33, 34, 35, 36, 37, 38 AND 39 OF CIV 2074 OF 2018 MUST BE EVIDENCED IN WRITING AS PER S. 34(1)(a) of the PLA: 

PROPERTY LAW ACT 1969 - SECT 34 

34 .         Instruments required to be in writing 

        (1)         Subject to the provisions hereinafter contained in this Act with respect to the creation of interests in land by parol —
            (a)         no interest in land is capable of being created or disposed of except by writing signed by the person creating or conveying the interest, or by his agent thereunto lawfully authorised in writing, or by will, or by operation of law;
            (b)         a declaration of trust respecting any land or any interest therein shall be manifested and proved by writing signed by a person who is able to declare the trust or by his will;
            (c)         a disposition of an equitable interest or trust subsisting at the time of the disposition shall be in writing signed by the person disposing of the interest, or by his agent thereunto lawfully authorised in writing or by will.
        (2)         This section does not affect the creation or operation of resulting, implied or constructive trusts.

7. EXCLUSIVITY RIGHTS OF DOMINANT TENEMENT UNIT 1/383 IMPLIED BY S.45 PLA AND NEED NOT BE EXPRESSED OR ANNOTATED INTO THE TITLE DEEDS. 

PROPERTY LAW ACT 1969 - SECT 45 

45 .         Covenants for title implied 

        (1)         In a conveyance there shall, in the several cases mentioned in this section, by virtue of this Act, be implied, a covenant to the effect stated in this section by the person or by each person who conveys, as far as regards the subject matter or share of subject matter expressed to be conveyed by him, with the person, if one, to whom the conveyance is made or with the persons jointly, if more than one, to whom the conveyance is made as joint tenants or with each of the persons, if more than one, to whom the conveyance is made, as tenants in common namely — 
            (a)         in a conveyance for valuable consideration, other than a mortgage, a covenant by a person who conveys and is expressed to convey as beneficial owner in the terms set out in Part I of the Third Schedule;
            (b)         in a conveyance of leasehold property for valuable consideration, other than a mortgage, a further covenant by a person who conveys and is expressed to convey as beneficial owner in the terms set out in Part II of the Third Schedule;
            (c)         in a conveyance by way of mortgage a covenant by a person who conveys and is expressed to convey as beneficial owner in the terms set out in Part III of the Third Schedule;
            (d)         in a conveyance by way of mortgage of leasehold property, a further covenant by a person who conveys and is expressed to convey as beneficial owner in the terms set out in Part IV of the Third Schedule;
            (e)         in a conveyance by way of settlement, a covenant by a person who conveys and is expressed to convey as settlor in the terms set out in Part V of the Third Schedule;
            (f)         in any conveyance, a covenant by every person who conveys and is expressed to convey as trustee or mortgagee, or as personal representative of a deceased person, or as administrator of the estate of a represented person or under an order of the Court, in the terms set out in Part VI of the Third Schedule, which covenant shall be deemed to extend to every such person’s own acts only, and may be implied in an assent by a personal representative in like manner as in a conveyance by deed.
        (2)         Where in a conveyance it is expressed that by direction of a person expressed to direct as beneficial owner another person conveys, then, for the purposes of this section, the person giving the direction, whether he conveys and is expressed to convey as beneficial owner or not, shall be deemed to convey and to be expressed to convey as beneficial owner the subject-matter so conveyed by his direction; and a covenant on his part shall be implied accordingly.
        (3)         In every conveyance subject to an encumbrance, there shall be implied a covenant by the person to whom the property is conveyed with the person making the conveyance, to pay the moneys or perform the obligations secured by the encumbrance, and to perform and observe the covenants and provisions of the encumbrance and to indemnify and keep indemnified the person making the conveyance in respect of all such moneys, obligations, covenants and provisions.
        (4)         Where in a conveyance a person conveying is not expressed to convey as beneficial owner, or as settlor, or as trustee, or as mortgagee, or as personal representative of a deceased person or as administrator of the estate of a represented person or under an order of the Court, or by direction of a person as beneficial owner, no covenant on the part of the person conveying is, by virtue of this section, implied in the conveyance.
        (5)         In this section a conveyance does not include a demise by way of lease at a rent.
        (6)         The benefit of a covenant implied by virtue of this section is annexed and incident to, and goes with, the estate or interest of the implied covenantee, and is capable of being enforced by every person in whom that estate or interest is, for the whole or any part thereof, from time to time vested.
        (7)         A covenant implied by virtue of this section may be varied or extended by a deed or an assent, and, as so varied or extended, operates, as far as may be, in the like manner, and with all the like incidents, effects and consequences, as if such variations or extensions were directed in this section to be implied.
        (8)         This section applies to conveyances made after the coming into operation of this Act.
        [Section 45 amended: No. 24 of 1990 s. 123.]

PROPERTY LAW ACT 1969 - SECT 46 

46 .         Construction of implied covenants 

                In the construction of a covenant, or other provision, implied in a deed by virtue of this Part, words importing the singular or plural number, or the masculine gender, shall be read as also importing the plural or singular number, or as extending to females, as the case may require.

8. UNIT 1/383 EXCLUSIVITY RIGHTS NEED NOT BE EXPRESSED OR ANNOTATED INTO THE TITLE DEED OF THE DOMINANT LAND: PROPERTY LAW ACT 1969 - SECT 47

47 .         Benefits of covenants relating to land 

        (1)         A covenant relating to any land of the covenantee shall be deemed to be made with the covenantee and his successors in title and the persons deriving title under him or them, and has effect as if those successors and other persons were expressed.
        (2)         For the purposes of subsection (1) in connection with covenants restrictive of the user of land, successors in title shall be deemed to include the owners and occupiers for the time being of the land of the covenantee intended to be benefited.
        (3)         This section applies only to covenants made after the coming into operation of this Act.

9. THE NINETEEN SERVANT LANDS TITLE NEED NOT BE ANNOTATED WITH THE EXCLUSIVITY RIGHTS TO BE SO BURDEN

PROPERTY LAW ACT 1969 - SECT 48 

48 .         Burden of covenants relating to land 

        (1)         Unless a contrary intention is expressed, a covenant relating to any land of a covenantor or capable of being bound by him, shall be deemed to be made by the covenantor on behalf of himself, his successors in title and the persons deriving title under him or them, and, has effect as if those successors and other persons were expressed.
        (2)         Subsection (1) extends to a covenant to do some act relating to the land, notwithstanding that the subject-matter may not be in existence when the covenant is made.
        (3)         For the purposes of this section in connection with covenants restrictive of the user of land successors in title shall be deemed to include the owners and occupiers for the time being of the land.
        (4)         This section applies only to covenants made after the coming into operation of this Act.

10. THE EXCLUSVIITY RIGHTS EXISTS PERMANENTLY OVER THE NINETEEN SERVANT LANDS UNLESS THERE IS EXPRESS ANNOTATION INTO THE TITLE DEEDS OF THE SERVANT LAND THAT IS EXPRESSLY EXCLUDED AS THE SERVANT LAND

PROPERTY LAW ACT 1969 - SECT 49 

49 .         Construction of covenants affecting land 

        (1)         It is hereby declared that when the benefit of a restriction as to the user of or the building on any land is or has been annexed or purports to be annexed by any instrument to other land the benefit shall, unless it is expressly provided to the contrary, be deemed to be and always to have been annexed to the whole and to each part of that other land capable of benefiting from the restriction.
        (2)         In this section land includes land that is under the provisions of the Transfer of Land Act 1893 .

PROPERTY LAW ACT 1969 - SECT 50 

50 .         Covenants to be joint and several 

                Where under a covenant whether express or implied under this or any other Act more persons than one are covenantors, the covenant shall unless a contrary intention is expressed be deemed to bind all the covenantors jointly and each of them severally.

PROPERTY LAW ACT 1969 - SECT 51 

51 .         Effect of covenant with 2 or more jointly 

        (1)         A covenant, and a contract under seal, and a bond or obligation under seal, made with 2 or more jointly, to pay money or to make a conveyance, or to do any other act, to them or for their benefit, shall be deemed to include, and shall, by virtue of this Part, imply, an obligation to do the act to, or for the benefit of, the survivor or survivors of them, and to, or for the benefit of, any other person to whom the right to sue on the covenant, contract, bond or obligation devolves, and if the covenant, contract, bond or obligation is made after the coming into operation of this Act it shall be construed as being made with each of them.
        (2)         This section extends to a covenant implied by virtue of this Part.
        (3)         This section applies only if and as far as a contrary intention is not expressed in the covenant, contract, bond or obligation, and has effect subject to the covenant, contract, bond or obligation, and to the provisions thereof.
        (4)         Except as otherwise expressly provided, this section applies to a covenant, contract, bond or obligation made or implied after the coming into operation of this Act.

11. THE WHEELDON V BURROWS ENACTMENT INTO THE EXCLUSIVITY RIGHTS AKA THE CREATION OF S.52PLAISQE BY ST MARKS FOR THE ORIGINAL LAND LOT 12 TO BURDEN ALL THE NINETEEN LANDS PERMNANENTLY UNLESS EXPRESS EXCLUDED AS PER THE PRINCIPLE OF UNITY OF POSSESSION

PROPERTY LAW ACT 1969 - SECT 52 

52 .         Covenants and agreements entered into by a person with himself and another or others 

        (1)         Any covenant, whether express or implied, or agreement entered into by a person with himself and one or more other persons shall be construed and be capable of being enforced in like manner as if the covenant or agreement had been entered into with the other person or persons alone.
        (2)         This section applies to covenants or agreements entered into before or after the coming into operation of this Act.



DATED THIS 22.04.2020.
BY PAUL CHUNG KIONG CHIN mob: 0401 771 984 AS CLAIMANT.
BY NICHOLAS NI KOKCHIN mob: 0421642735 AS PURCHASER/TRUSTEE FOR CLAIMANT.
.

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