Nicholas N CHIN Sep 1, 2026, 5:27 PM (15 hours ago) to Associate, Associate, Associate, SC, Associate, Associate, associate.registrar.whitbread, associate.registrar.gilich, associate.registrar.allison, associate.registrar.millman, associate.registrar.eaton, Associate
To: The Principal Registrar All Registrars of the Supreme Court of Western Australia The Honourable the Chief Justice of Western Australia From: Nicholas Ni Kok Chin Perth, Western Australia
Subject: Misapprehension of Judicial Function Under VPRA s 6(1) and s 6(5) — Request for Administrative and Judicial Clarification
1. Purpose of This Letter This letter accompanies my memorandum dated 1 September 2026. Its purpose is to respectfully identify a misapprehension of judicial function that has arisen in the series of VPRA decisions delivered by Justice Gething in:
Nicholas Ni Kok Chin [2026] WASC 40
Nicholas Ni Kok Chin [2026] WASC 90
Nicholas Ni Kok Chin [2026] WASC 157
Nicholas Ni Kok Chin [2026] WASC 369
The issue is not personal. It is structural and concerns the correct application of the VPRA and the proper scope of judicial duty under s 6(1) and s 6(5).
2. The Misapprehension of Role Under VPRA s 6(1) In WASC 369, Justice Gething stated:
“The appropriate forum for determination of that issue is by way of an appeal to the Court of Appeal, not a request for me to reconsider the issue.”
This statement reveals a fundamental misapprehension of the judge’s statutory role.
Under VPRA s 6(1):
Each application for leave is a fresh and independent judicial determination.
The judge must assess prima facie grounds on the material filed in that application.
The judge is not functus officio on any legal issue previously considered.
The judge cannot decline to reconsider a legal question merely because he previously ruled on it.
The VPRA does not create a doctrine of “issue finality” within the leave jurisdiction.
3. Misapplication of VPRA s 6(5) Justice Gething repeatedly applied a merits‑based test, not the statutory prima facie test.
The judgment states:
“They do not raise any argument … which has not already been considered and rejected by me.”
This is not the test under s 6(5).
The correct test is:
Whether the proposed proceeding discloses a prima facie ground,
Not whether the judge personally agrees with the legal argument,
And not whether the argument was previously rejected in a different VPRA application.
By treating earlier decisions as binding on subsequent applications, the judge has:
Collapsed the prima facie test into a merits test,
Foreclosed reconsideration of statutory construction,
Converted VPRA leave into a de facto permanent bar, contrary to Parliament’s intention.
4. Failure to Consider Mandatory Relevant Matters In WASC 369, the judgment does not address:
Transfer of Land Act ss 201 and 205 compensation rights,
The statutory preservation of pre‑existing quasi‑easements under s 52 PLA,
The administrative consequences for the Registrar of Titles.
These matters were squarely raised in the originating motion and affidavit.
A failure to consider mandatory relevant considerations is a jurisdictional error, not a discretionary one.
ANNEXURE A — MEMORANDUM TO THE CHIEF JUSTICE OF WESTERN AUSTRALIA Re: Mandatory Judicial Re‐Determination of the Construction of s.52 Property Law Act 1969 (WA) To: The Honourable the Chief Justice of Western Australia From: Nicholas Ni Kok Chin Perth, Western Australia Subject: Request for Judicial Re‐Determination of the Proper Construction of s.52 Property Law Act 1969 (WA) — VPRA Contains No Appeal Mechanism 1. Purpose of this Memorandum This memorandum accompanies my cover letter addressed to all Registrars of the Supreme Court of Western Australia. Its purpose is to bring to your attention a systemic legal issue arising from the interpretation of Section 52 Property Law Act 1969 (WA) (“s.52 PLA”) adopted in Nicholas Ni Kok Chin [2026] WASC 90 and [2026] WASC 369. The issue cannot be corrected through an appeal to the Court of Appeal because the Vexatious Proceedings Restriction Act 2002 (WA) (“VPRA”) provides no statutory right of appeal from a refusal of leave under s.6(1). Accordingly, the matter requires determination by another judge of the Supreme Court to prevent the entrenchment of a doctrinal error with ongoing administrative consequences. 2. No Appeal Lies to the Court of Appeal Under the VPRA The VPRA establishes a closed statutory regime governing applications for leave to commence proceedings. The Act: ● confers jurisdiction on a judge of the Supreme Court under s.6(1); ● requires the judge to determine whether a prima facie ground exists under s.6(5); ● does not provide any right of appeal from a refusal of leave; ● does not incorporate the appeal provisions of the Supreme Court Act 1935 (WA); ● does not permit a challenge to the refusal through ordinary appellate channels. Therefore:
The erroneous construction of s.52 PLA adopted in WASC 90 and WASC 369 cannot be corrected by the Court of Appeal. This creates a structural problem: a legal error of general importance has been made, but the statutory framework prevents appellate correction. 3. The Error Is Systemic and Affects the Court’s Administrative Arm The construction adopted by Justice Gething — namely, that: “s 52 does not create a statutory implied easement” is contrary to the historical doctrine codified by Parliament, including: ● Pyer v Carter (1857) ● Wheeldon v Burrows (1879) ● Pwllbach Colliery (1915) ● Wong v Beaumont (1965) and contrary to the statutory purpose of s.52 PLA. This error: ● affects all future VPRA applications involving s.52 PLA; ● affects the administrative practice of the Registrar of Titles; ● affects the integrity of the land register; ● affects the rights of landowners whose pre‐existing uses were preserved by statute; ● risks perpetuating a misunderstanding of s.52 PLA across the Court’s administrative and judicial functions. Because the VPRA prevents appellate correction, the error will remain indefinitely unless addressed by another judge. 4. Necessity for Determination by Another Judge Given: ● the absence of an appeal mechanism under the VPRA; ● the systemic nature of the legal error; ● the administrative consequences for Landgate and the Registrar of Titles; ● the doctrinal importance of s.52 PLA; ● and the need for consistency in the Court’s jurisprudence; it is necessary that: Another judge of the Supreme Court be allocated to determine the proper construction of s.52 PLA, independent of the VPRA leave regime.
This is the only lawful pathway to correct the doctrinal error and prevent its entrenchment. 5. Request I respectfully request that: 1. The issue of the proper construction of s.52 PLA be referred to another judge of the Supreme Court for determination; 2. The Court provide administrative guidance to the Registrar of Titles to ensure that statutory rights arising under s.52 PLA are correctly recorded and maintained; 3. The Court take steps to prevent the perpetuation of the erroneous construction adopted in WASC 90 and WASC 369. Yours respectfully, Nicholas Ni Kok Chin Perth, Western Australia DATED 1ST SEPTEMBER, 2026.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : NICHOLAS NI KOK CHIN [2026] WASC 369 CORAM : GETHING J HEARD : 27 AUGUST 2026 DELIVERED : 1 SEPTEMBER 2026 FILE NO/S : CIV 1628 of 2026 BETWEEN : NICHOLAS NI KOK CHIN Plaintiff
Solicitors: Plaintiff : In Person Case(s) referred to in decision(s): Nicholas Ni Kok Chin [2026] WASC 157 Nicholas Ni Kok Chin [2026] WASC 40 The Principal Registrar of the Supreme Court v Chin [2012] WASC 7
GETHING J: 1 By originating motion filed on 14 May 2026, Nicholas Ni Kok Chin (the Applicant) seeks leave to commence proceedings pursuant to Vexatious Proceedings Restriction Act 2002 (WA) (VPRA) s 6(1). Leave is required as in 2012 the Supreme Court prohibited Mr Chin from instituting proceedings in any Western Australian court or tribunal without the leave of the court.1 2 The proceedings which Mr Chin seeks leave to commence are against the State of Western Australia and the Registrar of Titles (Proposed Proceedings). The Proposed Proceedings relate to a commercial property in Malaga. The relief sought is set out in the originating motion in the following terms: A. Compensation under the Transfer of Land Act 1893 (WA) A.1 Compensation under ss 201(1) and 205(1) for deprivation of an estate or interest in land, including the loss of the 31 items of plant and equipment formerly located at Unit 1/383 and registered under PPSR No. 20170412006511.
B. Declarations concerning the statutory implied easement under s 52 Property Law Act 1969 (WA) B.1 A declaration that Unit 1 on Strata Plan 34659 (Unit 1/383) satisfies the legal requirements for creation of a statutory implied easement, including that: (i) Prior to subdivision, Lot 12 (383 Victoria Road) was held in common ownership by St Mark Investment Pty Ltd (unity of possession); (ii) During unity of possession, the portion now comprising Unit 1/383 was designated and operated as the Victoria Road Lunch Br. (iii) The lunch bar portion enjoyed continuous and apparent quasi-easement rights over adjoining parts of Lot 12; (iv) The quasi-easement was reasonably necessary for the enjoyment of Unit 1/383 at the time of subdivision;
1 The Principal Registrar of the Supreme Court v Chin [2012] WASC 7.
[2026] WASC 369
GETHING J
Page 4 (v) The easement was not expressly excluded in the instrument of subdivision; and (vi) Upon subdivision, the easement attached to Unit 1/383 as an incident of the land. C. Declarations concerning extinguishment and loss C.1 Declarations identifying the existence, scope, and purported extinguishment of the statutory implied easement, including that: (i) Any purported extinguishment was effected without lawful authority or compliance with the Transfer of Land Act 1893 (WA); (ii) Such extinguishment was invalid and of no legal effect; and (iii) The loss of the 31 items of plant and equipment was caused by enforcement of the void order made by Magistrate Ward in MC/PER/CIV 10010/2020.
D. Damages D.1 Damages for deprivation of an estate or interest in land, including consequential loss arising from removal, sale or destruction of the 31 items of plant and equipment.
E. Further relief E.1 Such further or other orders as the Court considers appropriate.
3 So far this year, the Applicant has made three applications relating to the same matter, each of which have been decided by me: (a) an application by originating motion filed 27 January 2026, dismissed on 13 February 2026 (February Decision);2 (b) an application by originating motion filed 3 March 2026, dismissed on 27 March 2026 (March Decision);3 and
2 Nicholas Ni Kok Chin [2026] WASC 40. 3 Nicholas Ni Kok Chin [2026] WASC 90.
[2026] WASC 369
GETHING J
Page 5 (c) an application by originating motion filed 16 April 2026, dismissed on 4 May 2026 (May Decision).4
4 The Applicant filed affidavit sworn by him on 9 May 2026 as well as the following submissions: (a) 'Written Submissions of the Applicant' filed 16 May 2026; (b) 'Second Submission – Factual Matrix' filed 22 May 2026; (c) 'Third Full Submission of the Applicant' filed 23 May 2026; (d) 'Fourth Full Submissions of the Applicant to Correct Section 3 of the Third Submissions' filed 23 May 2026; (e) 'Consolidated Submissions for Hearing' filed 3 June 2026; (f) 'Sixth Submission' filed 4 June 2026; (g) 'Sixth Written Submission' filed 19 June 2026; (i) 'Eighth Written Submission' filed 19 June 2026; (j) 'Ninth Written Submission of the Plaintiff' filed 21 June 2026; (k) 'Oral & Written Submission (Hand-Up)' filed 22 June 2026; (l) 'Eleventh Written Submission of the Plaintiff' filed 26 June 2026; (m) 'Twelfth Written Submission' filed 27 June 2026; (n) 'Thirteenth Written Submission (Consolidated)' filed 4 July 2026; (o) 'Fourteenth Written Submission' filed 5 July 2026; (p) 'Fifteenth Written Submission of the Plaintiff' filed 16 August 2026; (q) 'Written Submission No. 16' filed 21 August 2026; (r) 'WS16 – Written Submissions of the exparte Applicant' filed 22 August 2026;
4 Nicholas Ni Kok Chin [2026] WASC 157.
[2026] WASC 369
GETHING J
Page 6 (s) 'MUCC Consideration Notification', handed up at the hearing on 27 August 2026; (t) 'Oral Script for Justice Gething', handed up at the hearing on 27 August 2026; (u) '17th Written Submissions', handed up at the hearing on 27 August 2026; and (v) 'Contingent WS16', handed up at the hearing on 27 August 2026.
5 I have read each set of submissions. They do not raise any argument relevant to the grant of leave to commence the Proposed Proceedings which has not already been considered and rejected by me in the February Decision, March Decision or May Decision. Nor did his oral submissions. The foundational legal premise of the Proposed Proceedings is that Property Law Act 1969 (WA) s 52 creates a 'statutory implied easement'. As I set out in the May Decision ([9]), it does not. 6 At points in the documents I have set out at [4], and in oral argument, the Applicant asserts that I have made errors in one of my earlier decisions. The appropriate forum for determination of that issue is by way of an appeal to the Court of Appeal, not a request, in effect, for me to reconsider the issue. 7 I find that there is no prima facie ground for the Proposed Proceedings for the purposes of VPRA s 6(5). Therefore I must dismiss the application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CC Associate to the Hon Justice Gething 1 SEPTEMBER 2026
SUBMISSION TO ALL REGISTRARS Application for Administrative Re‐Allocation of Judge Matter: CIV 1628 of 2026 Ground: Judgment of 27 August 2026 is a Nullity A. Purpose of This Submission 1. This submission accompanies the Applicant’s request that all Registrars exercise their administrative powers to re‐allocate CIV 1628 of 2026 to a different judge for reconsideration. 2. The basis is that the judgment delivered on 27 August 2026 is a nullity, arising from: 2.1 (a) failure to conduct the hearing required by statute; 2.1 (b) failure to consider mandatory relevant considerations; 2.3. (c) failure to apply the legislative intent of Division 1, Part V of the Property Law Act 1969 (WA); 2.4. (d) failure to provide proper reasons; 2.5. (e) refusal to accept submissions; (f) refusal to allow future applications (ultra vires); 2.6. (g) misapprehension of the Applicant’s case. 3. A judgment that is a nullity cannot stand, cannot be perfected, and must be administratively corrected. B. Legislative Intent of Division 1, Part V — Property Law Act 1969 (WA) 4. The WA Parliament enacted Division 1 of Part V to: (a) modernise property law by adopting English doctrines; (b) codify rights arising from unity of possession; (c) ensure continuity of quasi‐easements upon subdivision;
(d) remove technical defects in covenant formation; (e) align WA law with the UK Law of Property Act 1925; (f) guarantee that implied rights bind successors automatically; (g) prevent injustice caused by clerical omissions in the register. 5. These doctrines are mandatory considerations for any judge determining rights under the Act. C. Judicial Duty to Apply Legislative Intent 6. A judge is under a non‐discretionary legal duty to: (a) interpret the Act according to its text, context, and purpose; (b) apply the English doctrinal lineage adopted by WA Parliament; (c) consider all mandatory relevant considerations; (d) provide proper reasons explaining the legal basis for the decision; (e) conduct the hearing required by statute. 7. Failure to do so constitutes jurisdictional error. D. Consequences When a Judge Ignores Legislative Intent 8. If a judge ignores the legislative intent of Division 1, Part V: (a) the judge applies the wrong legal test; (b) the judge misconstrues the statute; (c) the judge fails to consider mandatory relevant considerations; (d) the judge denies procedural fairness; (e) the judgment becomes void ab initio. 9. A void judgment is treated as if it never existed. 10. A void judgment cannot be perfected, cannot be enforced, and cannot be relied upon. E. Consequences When a Judge Fails to Provide Proper Reasons
11. The High Court has repeatedly held that failure to give proper reasons is itself an error of law. 12. A judge must: (a) identify the issues; (b) state the applicable law; (c) explain the reasoning process; (d) address the parties’ submissions; (e) explain why the statutory purpose was accepted or rejected. 13. Failure to do so: (a) constitutes jurisdictional error; (b) renders the judgment appellable; (c) invalidates the judgment; (d) requires administrative correction. F. Consequences When a Judge Refuses to Conduct the Hearing Required by Statute
14. Section 6(8) of the VPRA requires the judge to conduct a hearing. 15. Failure to conduct the hearing: (a) is a breach of statutory duty; (b) is a denial of procedural fairness; (c) is jurisdictional error; (d) renders the judgment a nullity. 16. A nullity must be administratively corrected. G. Consequences When a Judge Refuses to Accept Submissions or Evidence 17. A judge who refuses to accept submissions: (a) denies procedural fairness; (b) fails to consider mandatory relevant considerations; (c) commits jurisdictional error; (d) renders the judgment void. H. Consequences When a Judge Refuses to Allow Future Applications (Ultra Vires) 18. A judge has no power to prohibit future applications. 19. Such a refusal is: (a) beyond jurisdiction; (b) legally ineffective; (c) itself jurisdictional error; (d) a ground for nullity. I. Why CIV 1628 of 2026 Must Be Re‐Allocated 20. The judgment of 27 August 2026 is a nullity because: (a) the judge refused to conduct the hearing; (b) the judge refused to consider the Addendum; (c) the judge refused to consider submissions filed before the hearing; (d) the judge misapprehended the Applicant’s case; (e) the judge refused to allow future applications; (f) the judge failed to provide proper reasons; (g) the judge ignored the legislative intent of Division 1, Part V. 21. A nullity cannot be corrected by appeal because there is no appeal mechanism. 22. Only administrative re‐allocation can correct the defect. 23. The matter must be re‐listed before a different judge. J. Relief Sought 24. The Applicant respectfully requests that all Registrars:
Subject: Timeline of Communications and Confirmation of Compliance
Dear Associate / Supreme Court Registry,
I write to provide a short, factual timeline of the communications sent on 1 and 2 September 2026. This is for clarity only and to confirm that I have complied fully with His Honour Justice Gething’s directions regarding the proper communication protocol.
Please find the timeline below:
1 September 2026 — 4:54 PM Email sent to all Registrars and the Chief Justice regarding the jurisdictional issue arising from the s.6(1) VPRA application and requesting administrative re‑allocation. I acknowledge that this communication did not follow protocol.
2 September 2026 — 9:30 AM Email received from the Associate to Justice Gething advising that broadcast emails are inappropriate and directing that all future correspondence be sent only to His Honour’s chambers or the SC Central Office.
2 September 2026 — 10:59 AM Apology and new submission sent to the Associate to Justice Gething, confirming compliance with His Honour’s instructions.
2 September 2026 — 11:00 AM New submission and apology sent to the Supreme Court Registry. Acknowledgment received at 11:01 AM confirming receipt and advising that a response will be provided within five working days.
I apologise again for the earlier broadcast communication and confirm that I am now proceeding strictly in accordance with His Honour’s directions.
Nicholas N CHIN Attachments 10:59 AM (2 hours ago) to Associate
Thank you for your reply. Dear Associate
Thank you for your email received this morning. I acknowledge His Honour’s direction that further correspondence must be sent only to Justice Gething’s chambers or to the SC Central Office. I will comply fully with that instruction from this point forward.
I also wish to apologise for the broadcast emails that were sent previously. What has been done cannot now be undone, and I regret that those communications did not follow the proper protocol. My intention was only to ensure that the Court was aware of the jurisdictional difficulty arising from the s.6(1) VPRA application, which has no appeal mechanism. I now understand that all communication must remain within the channels His Honour has specified.
For completeness, I attach again ONLY my written submission, TO BE READ together with the memorandum addressed to the Chief Justice and the earlier email to the Registrars concerning judge allocation. These documents were sent in good faith to clarify the procedural position and to ensure that the Court understood the statutory context of the matter.
I confirm that I will now proceed strictly in accordance with His Honour’s instructions received today.
SUPREME COURT OF WESTERN AUSTRALIA COURT OF APPEAL — CIVIL JURISDICTION NOTICE OF APPEAL (EX PARTE) JURISDICTION: Supreme Court of Western Australia CITATION OF DECISION APPEALED: Nicholas Ni Kok Chin [2026] WASC 369 CORAM: Gething J HEARD: 27 August 2026 DELIVERED: 1 September 2026 FILE NO.: CIV 1628 of 2026 BETWEEN: NICHOLAS NI KOK CHIN Plaintiff / Applicant below Appellant (Ex Parte) 1. NATURE OF APPEAL This is an ex parte appeal from the decision of the Honourable Justice Gething delivered on 1 September 2026 in CIV 1628 of 2026, reported as Nicholas Ni Kok Chin [2026] WASC 369, refusing the Appellant leave under s 6(1) of the Vexatious Proceedings Restriction Act 2002 (WA) (“VPRA”) to commence proceedings against the proposed defendant, the City of Swan (amended from the State of Western Australia). The Appellant has been subject to VPRA restrictions since 2012. The proposed defendant is not a party to this appeal. The ex parte nature of this appeal is mandated by: VPRA s 6(1) CACV 88 of 2018 (Chin — Ex Parte) Chin ex parte [2019] HCASL 382, which (although concerning Paul Chung Kiong Chin) illustrates that VPRA applications and appeals are dealt with ex parte, on the material filed by the applicant alone. 2. DECISION APPEALED The Appellant appeals against the whole of the decision and orders of Gething J delivered on 1 September 2026, including: The dismissal of the Appellant’s VPRA s 6(1) application. The finding that the Appellant had “no prima facie ground” under VPRA s 6(5). The refusal of leave to commence proceedings. 3. ORDERS SOUGHT ON APPEAL The Appellant seeks orders that: The appeal be allowed. The decision of Gething J in Nicholas Ni Kok Chin [2026] WASC 369 be set aside. The Appellant be granted leave under VPRA s 6(1) to commence proceedings against the City of Swan, alleging: statutory compensation under Transfer of Land Act 1893 ss 201 and 205; statutory breach under Property Law Act 1969 s 52. Alternatively, the matter be remitted to a different judge for reconsideration according to law, specifically on the issue of irremediable injustice, of which both the Principal Registrar and the Chief Justice were already on notice. No order as to costs (ex parte appeal; no respondent). Any further orders the Court considers appropriate. 4. GROUNDS OF APPEAL (Compliant with SCR r 32 — numbered, concise, identifying errors of law.) Ground 1 — Misapplication of VPRA s 6(5) His Honour applied a merits‑based test instead of the statutory prima facie threshold required by VPRA s 6(5). His Honour’s statement that the Appellant “raises no argument not already rejected” is not the statutory test. Ground 2 — Failure to exercise jurisdiction under VPRA s 6(1) His Honour treated himself as functus officio and declined to reconsider the Appellant’s application, stating that the arguments should be raised “on appeal”. This constitutes failure to exercise the jurisdiction conferred by VPRA s 6(1).
Ground 3 — Failure to consider mandatory statutory provisions (TLA ss 201 & 205) His Honour failed to consider the Appellant’s proposed statutory compensation claims under Transfer of Land Act 1893 ss 201 and 205. His Honour also failed to consider the Registrar’s statutory duties under: TLA s 52(2) — subsisting easements deemed part of the estate; TLA s 56 — duty to register restrictive covenants; TLA s 69(2) — duty to encumber future titles; TLA s 129A(1)–(6) — lawful creation of estates without deed; registration obligations. These provisions were central to the Appellant’s statutory compensation claim and constituted mandatory relevant considerations. Ground 4 — Failure to consider PLA s 52 (misleading conduct in relation to land) His Honour failed to consider the Appellant’s proposed statutory claim under Property Law Act 1969 s 52. His Honour also failed to consider: PLA s 34(1)(a) — creation of interests by parol; PLA Part V (ss 45–52) — statutory protection of easements and covenants; The legislative intent in the Property Law Bill 1969 permitting creation of easements without deed. This omission constitutes failure to consider mandatory relevant considerations. Ground 5 — Error of principle: treating prior decisions as determinative His Honour relied on earlier decisions involving the Appellant and treated them as binding, instead of conducting the fresh statutory assessment required by VPRA s 6. This is an error of principle. Ground 6 — Denial of procedural fairness His Honour failed to engage with the Appellant’s written submissions, statutory extracts, and authorities, including: Hermansen’s expert material on quasi‑easements; Halsbury’s Laws of England Vol 14 para 62; Statutory extracts from TLA ss 52, 56, 69, 129A and PLA ss 34, 52; Documentary evidence from CIV 2074 of 2018 and CACV 88 of 2018. This constitutes denial of procedural fairness. Ground 7 — Failure to consider relevant Court of Appeal material (CACV 88 of 2018) The Appellant directed His Honour to specific pages of the CACV 88/2018 appeal book. His Honour did not address those pages or their relevance to the prima facie threshold. Ground 8 — Failure to consider evidence of irremediable injustice arising from prior appellate error His Honour failed to consider the Appellant’s submissions and documentary evidence demonstrating irremediable injustice arising from the Court of Appeal’s handling of CACV 88 of 2018, including procedural unfairness, systemic failure, and absence of available remedies. This evidence was directly relevant to whether the Appellant had established a prima facie ground under VPRA s 6(5). Failure to consider this material constitutes an error of law.
Ground 9 — Failure to consider doctrine of implied easements upon division of title (quasi‑easements) His Honour failed to consider the Appellant’s submissions concerning the common‑law doctrine of implied easements, including Wheeldon v Burrows, Hermansen, and Halsbury. These authorities establish that quasi‑easements arise automatically upon division of title, attach to the dominant tenement, burden servient tenements, and do not require mention in deeds. Failure to consider this doctrine constitutes failure to consider mandatory relevant considerations and an error of law. Ground 10 — Failure to consider Registrar’s statutory duties under the TLA His Honour failed to consider the Registrar’s statutory duties under TLA ss 52(2), 56, 69(2), and 129A(1)–(6), which were central to the Appellant’s proposed statutory compensation claim. This omission constitutes failure to consider mandatory relevant considerations and an error of law. Ground 11 — Failure to consider new, uncontradicted evidence (City of Swan admission) His Honour failed to consider the new, material, and uncontradicted evidence that the City of Swan, through Rhett Walker, admitted liability for the Appellant’s loss. This evidence was not available in earlier proceedings, was uncontradicted, and was directly relevant to the prima facie threshold under VPRA s 6(5). Failure to consider it constitutes an error of law. 5. APPELLANT’S DETAILS FOR SERVICE Name: Nicholas Ni Kok Chin Address: 387 Alexander Drive, Dianella WA Telephone: 0411 930 635 Email: nnchin2@gmail.com SIGNED BY NICHOLAS NI KOK CHIN on 7th day of September, 2026.
Nicholas N CHIN
ReplyDeleteSep 1, 2026, 5:27 PM (15 hours ago)
to Associate, Associate, Associate, SC, Associate, Associate, associate.registrar.whitbread, associate.registrar.gilich, associate.registrar.allison, associate.registrar.millman, associate.registrar.eaton, Associate
To: The Principal Registrar All Registrars of the Supreme Court of Western Australia The Honourable the Chief Justice of Western Australia
From: Nicholas Ni Kok Chin Perth, Western Australia
Subject: Misapprehension of Judicial Function Under VPRA s 6(1) and s 6(5) — Request for Administrative and Judicial Clarification
1. Purpose of This Letter
This letter accompanies my memorandum dated 1 September 2026. Its purpose is to respectfully identify a misapprehension of judicial function that has arisen in the series of VPRA decisions delivered by Justice Gething in:
Nicholas Ni Kok Chin [2026] WASC 40
Nicholas Ni Kok Chin [2026] WASC 90
Nicholas Ni Kok Chin [2026] WASC 157
Nicholas Ni Kok Chin [2026] WASC 369
The issue is not personal. It is structural and concerns the correct application of the VPRA and the proper scope of judicial duty under s 6(1) and s 6(5).
2. The Misapprehension of Role Under VPRA s 6(1)
In WASC 369, Justice Gething stated:
“The appropriate forum for determination of that issue is by way of an appeal to the Court of Appeal, not a request for me to reconsider the issue.”
This statement reveals a fundamental misapprehension of the judge’s statutory role.
Under VPRA s 6(1):
Each application for leave is a fresh and independent judicial determination.
The judge must assess prima facie grounds on the material filed in that application.
The judge is not functus officio on any legal issue previously considered.
The judge cannot decline to reconsider a legal question merely because he previously ruled on it.
The VPRA does not create a doctrine of “issue finality” within the leave jurisdiction.
3. Misapplication of VPRA s 6(5)
Justice Gething repeatedly applied a merits‑based test, not the statutory prima facie test.
The judgment states:
“They do not raise any argument … which has not already been considered and rejected by me.”
This is not the test under s 6(5).
The correct test is:
Whether the proposed proceeding discloses a prima facie ground,
Not whether the judge personally agrees with the legal argument,
And not whether the argument was previously rejected in a different VPRA application.
By treating earlier decisions as binding on subsequent applications, the judge has:
Collapsed the prima facie test into a merits test,
Foreclosed reconsideration of statutory construction,
Converted VPRA leave into a de facto permanent bar, contrary to Parliament’s intention.
4. Failure to Consider Mandatory Relevant Matters
In WASC 369, the judgment does not address:
Transfer of Land Act ss 201 and 205 compensation rights,
The statutory preservation of pre‑existing quasi‑easements under s 52 PLA,
The administrative consequences for the Registrar of Titles.
These matters were squarely raised in the originating motion and affidavit.
A failure to consider mandatory relevant considerations is a jurisdictional error, not a discretionary one.
ANNEXURE A — MEMORANDUM TO
ReplyDeleteTHE CHIEF JUSTICE OF WESTERN
AUSTRALIA
Re: Mandatory Judicial Re‐Determination of the Construction of s.52 Property Law Act
1969 (WA)
To: The Honourable the Chief Justice of Western Australia
From: Nicholas Ni Kok Chin Perth, Western Australia
Subject: Request for Judicial Re‐Determination of the Proper Construction of s.52 Property
Law Act 1969 (WA) — VPRA Contains No Appeal Mechanism
1. Purpose of this Memorandum
This memorandum accompanies my cover letter addressed to all Registrars of the Supreme
Court of Western Australia. Its purpose is to bring to your attention a systemic legal issue
arising from the interpretation of Section 52 Property Law Act 1969 (WA) (“s.52 PLA”)
adopted in Nicholas Ni Kok Chin [2026] WASC 90 and [2026] WASC 369.
The issue cannot be corrected through an appeal to the Court of Appeal because the
Vexatious Proceedings Restriction Act 2002 (WA) (“VPRA”) provides no statutory right
of appeal from a refusal of leave under s.6(1). Accordingly, the matter requires
determination by another judge of the Supreme Court to prevent the entrenchment of a
doctrinal error with ongoing administrative consequences.
2. No Appeal Lies to the Court of Appeal Under the
VPRA
The VPRA establishes a closed statutory regime governing applications for leave to
commence proceedings. The Act:
● confers jurisdiction on a judge of the Supreme Court under s.6(1);
● requires the judge to determine whether a prima facie ground exists under s.6(5);
● does not provide any right of appeal from a refusal of leave;
● does not incorporate the appeal provisions of the Supreme Court Act 1935 (WA);
● does not permit a challenge to the refusal through ordinary appellate channels.
Therefore:
The erroneous construction of s.52 PLA adopted in WASC 90 and WASC
369 cannot be corrected by the Court of Appeal.
This creates a structural problem: a legal error of general importance has been made, but
the statutory framework prevents appellate correction.
3. The Error Is Systemic and Affects the Court’s
Administrative Arm
The construction adopted by Justice Gething — namely, that:
“s 52 does not create a statutory implied easement”
is contrary to the historical doctrine codified by Parliament, including:
● Pyer v Carter (1857)
● Wheeldon v Burrows (1879)
● Pwllbach Colliery (1915)
● Wong v Beaumont (1965)
and contrary to the statutory purpose of s.52 PLA.
This error:
● affects all future VPRA applications involving s.52 PLA;
● affects the administrative practice of the Registrar of Titles;
● affects the integrity of the land register;
● affects the rights of landowners whose pre‐existing uses were preserved by statute;
● risks perpetuating a misunderstanding of s.52 PLA across the Court’s administrative
and judicial functions.
Because the VPRA prevents appellate correction, the error will remain indefinitely unless
addressed by another judge.
4. Necessity for Determination by Another Judge
Given:
● the absence of an appeal mechanism under the VPRA;
● the systemic nature of the legal error;
● the administrative consequences for Landgate and the Registrar of Titles;
● the doctrinal importance of s.52 PLA;
● and the need for consistency in the Court’s jurisprudence;
it is necessary that:
Another judge of the Supreme Court be allocated to determine the proper
construction of s.52 PLA, independent of the VPRA leave regime.
This is the only lawful pathway to correct the doctrinal error and prevent its entrenchment.
5. Request
I respectfully request that:
1. The issue of the proper construction of s.52 PLA be referred to another judge of the
Supreme Court for determination;
2. The Court provide administrative guidance to the Registrar of Titles to ensure that
statutory rights arising under s.52 PLA are correctly recorded and maintained;
3. The Court take steps to prevent the perpetuation of the erroneous construction
adopted in WASC 90 and WASC 369.
Yours respectfully,
Nicholas Ni Kok Chin Perth, Western Australia
DATED 1ST SEPTEMBER, 2026.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
ReplyDeleteCITATION : NICHOLAS NI KOK CHIN [2026] WASC 369
CORAM : GETHING J
HEARD : 27 AUGUST 2026
DELIVERED : 1 SEPTEMBER 2026
FILE NO/S : CIV 1628 of 2026
BETWEEN : NICHOLAS NI KOK CHIN
Plaintiff
Solicitors:
ReplyDeletePlaintiff : In Person
Case(s) referred to in decision(s):
Nicholas Ni Kok Chin [2026] WASC 157
Nicholas Ni Kok Chin [2026] WASC 40
The Principal Registrar of the Supreme Court v Chin [2012] WASC 7
https://ecourts.justice.wa.gov.au/eCourtsPortal/Decisions/ViewDecision?returnUrl=%2feCourtsPortal%2fDecisions%2fFilter%2fSC%2fRecentDecisions&id=9882d22c-d291-4727-9a68-7193295ee51c
ReplyDeleteGETHING J
ReplyDeletePage 3
GETHING J:
1 By originating motion filed on 14 May 2026, Nicholas Ni Kok
Chin (the Applicant) seeks leave to commence proceedings pursuant to
Vexatious Proceedings Restriction Act 2002 (WA) (VPRA) s 6(1).
Leave is required as in 2012 the Supreme Court prohibited Mr Chin
from instituting proceedings in any Western Australian court or tribunal
without the leave of the court.1
2 The proceedings which Mr Chin seeks leave to commence are
against the State of Western Australia and the Registrar of Titles
(Proposed Proceedings). The Proposed Proceedings relate to a
commercial property in Malaga. The relief sought is set out in the
originating motion in the following terms:
A. Compensation under the Transfer of Land Act 1893 (WA)
A.1 Compensation under ss 201(1) and 205(1) for
deprivation of an estate or interest in land, including the
loss of the 31 items of plant and equipment formerly
located at Unit 1/383 and registered under PPSR No.
20170412006511.
B. Declarations concerning the statutory implied easement
under s 52 Property Law Act 1969 (WA)
B.1 A declaration that Unit 1 on Strata Plan 34659
(Unit 1/383) satisfies the legal requirements for
creation of a statutory implied easement, including that:
(i) Prior to subdivision, Lot 12 (383 Victoria
Road) was held in common ownership by St
Mark Investment Pty Ltd (unity of
possession);
(ii) During unity of possession, the portion now
comprising Unit 1/383 was designated and
operated as the Victoria Road Lunch Br.
(iii) The lunch bar portion enjoyed continuous and
apparent quasi-easement rights over adjoining
parts of Lot 12;
(iv) The quasi-easement was reasonably necessary
for the enjoyment of Unit 1/383 at the time of
subdivision;
1 The Principal Registrar of the Supreme Court v Chin [2012] WASC 7.
[2026] WASC 369
GETHING J
Page 4
(v) The easement was not expressly excluded in
the instrument of subdivision; and
(vi) Upon subdivision, the easement attached to
Unit 1/383 as an incident of the land.
C. Declarations concerning extinguishment and loss
C.1 Declarations identifying the existence, scope, and
purported extinguishment of the statutory implied
easement, including that:
(i) Any purported extinguishment was effected
without lawful authority or compliance with
the Transfer of Land Act 1893 (WA);
(ii) Such extinguishment was invalid and of no
legal effect; and
(iii) The loss of the 31 items of plant and
equipment was caused by enforcement of the
void order made by Magistrate Ward in
MC/PER/CIV 10010/2020.
D. Damages
D.1 Damages for deprivation of an estate or interest in land,
including consequential loss arising from removal, sale
or destruction of the 31 items of plant and equipment.
E. Further relief
E.1 Such further or other orders as the Court considers
appropriate.
3 So far this year, the Applicant has made three applications relating
ReplyDeleteto the same matter, each of which have been decided by me:
(a) an application by originating motion filed 27 January 2026,
dismissed on 13 February 2026 (February Decision);2
(b) an application by originating motion filed 3 March 2026,
dismissed on 27 March 2026 (March Decision);3
and
2 Nicholas Ni Kok Chin [2026] WASC 40.
3 Nicholas Ni Kok Chin [2026] WASC 90.
[2026] WASC 369
GETHING J
Page 5
(c) an application by originating motion filed 16 April 2026,
dismissed on 4 May 2026 (May Decision).4
4 The Applicant filed affidavit sworn by him on 9 May 2026 as well
as the following submissions:
(a) 'Written Submissions of the Applicant' filed 16 May 2026;
(b) 'Second Submission – Factual Matrix' filed 22 May 2026;
(c) 'Third Full Submission of the Applicant' filed 23 May 2026;
(d) 'Fourth Full Submissions of the Applicant to Correct Section 3
of the Third Submissions' filed 23 May 2026;
(e) 'Consolidated Submissions for Hearing' filed 3 June 2026;
(f) 'Sixth Submission' filed 4 June 2026;
(g) 'Sixth Written Submission' filed 19 June 2026;
(i) 'Eighth Written Submission' filed 19 June 2026;
(j) 'Ninth Written Submission of the Plaintiff' filed 21 June 2026;
(k) 'Oral & Written Submission (Hand-Up)' filed 22 June 2026;
(l) 'Eleventh Written Submission of the Plaintiff' filed 26 June
2026;
(m) 'Twelfth Written Submission' filed 27 June 2026;
(n) 'Thirteenth Written Submission (Consolidated)' filed 4 July
2026;
(o) 'Fourteenth Written Submission' filed 5 July 2026;
(p) 'Fifteenth Written Submission of the Plaintiff' filed 16 August
2026;
(q) 'Written Submission No. 16' filed 21 August 2026;
(r) 'WS16 – Written Submissions of the exparte Applicant' filed
22 August 2026;
4 Nicholas Ni Kok Chin [2026] WASC 157.
[2026] WASC 369
GETHING J
Page 6
(s) 'MUCC Consideration Notification', handed up at the hearing
on 27 August 2026;
(t) 'Oral Script for Justice Gething', handed up at the hearing on
27 August 2026;
(u) '17th Written Submissions', handed up at the hearing on
27 August 2026; and
(v) 'Contingent WS16', handed up at the hearing on 27 August
2026.
5 I have read each set of submissions. They do not raise any
argument relevant to the grant of leave to commence the Proposed
Proceedings which has not already been considered and rejected by me
in the February Decision, March Decision or May Decision. Nor did
his oral submissions. The foundational legal premise of the Proposed
Proceedings is that Property Law Act 1969 (WA) s 52 creates a
'statutory implied easement'. As I set out in the May Decision ([9]), it
does not.
6 At points in the documents I have set out at [4], and in oral
argument, the Applicant asserts that I have made errors in one of my
earlier decisions. The appropriate forum for determination of that issue
is by way of an appeal to the Court of Appeal, not a request, in effect,
for me to reconsider the issue.
7 I find that there is no prima facie ground for the Proposed
Proceedings for the purposes of VPRA s 6(5). Therefore I must dismiss
the application.
I certify that the preceding paragraph(s) comprise the reasons for decision of
the Supreme Court of Western Australia.
CC
Associate to the Hon Justice Gething
1 SEPTEMBER 2026
SUPREME COURT OF WESTERN
ReplyDeleteAUSTRALIA
SUBMISSION TO ALL REGISTRARS
Application for Administrative Re‐Allocation of Judge
Matter: CIV 1628 of 2026
Ground: Judgment of 27 August 2026 is a Nullity
A. Purpose of This Submission
1. This submission accompanies the Applicant’s request that all Registrars exercise
their administrative powers to re‐allocate CIV 1628 of 2026 to a different judge for
reconsideration.
2. The basis is that the judgment delivered on 27 August 2026 is a nullity, arising
from:
2.1 (a) failure to conduct the hearing required by statute;
2.1 (b) failure to consider mandatory relevant considerations;
2.3. (c) failure to apply the legislative intent of Division 1, Part V of the Property Law
Act 1969 (WA);
2.4. (d) failure to provide proper reasons;
2.5. (e) refusal to accept submissions; (f) refusal to allow future applications (ultra
vires);
2.6. (g) misapprehension of the Applicant’s case.
3. A judgment that is a nullity cannot stand, cannot be perfected, and must be
administratively corrected.
B. Legislative Intent of Division 1, Part V — Property
Law Act 1969 (WA)
4. The WA Parliament enacted Division 1 of Part V to:
(a) modernise property law by adopting English doctrines; (b) codify rights arising
from unity of possession; (c) ensure continuity of quasi‐easements upon subdivision;
(d) remove technical defects in covenant formation; (e) align WA law with the UK Law
of Property Act 1925; (f) guarantee that implied rights bind successors automatically;
(g) prevent injustice caused by clerical omissions in the register.
5. These doctrines are mandatory considerations for any judge determining rights under
the Act.
C. Judicial Duty to Apply Legislative Intent
6. A judge is under a non‐discretionary legal duty to:
(a) interpret the Act according to its text, context, and purpose; (b) apply the English
doctrinal lineage adopted by WA Parliament; (c) consider all mandatory relevant
considerations; (d) provide proper reasons explaining the legal basis for the decision;
(e) conduct the hearing required by statute.
7. Failure to do so constitutes jurisdictional error.
D. Consequences When a Judge Ignores Legislative
Intent
8. If a judge ignores the legislative intent of Division 1, Part V:
(a) the judge applies the wrong legal test; (b) the judge misconstrues the statute; (c)
the judge fails to consider mandatory relevant considerations; (d) the judge denies
procedural fairness; (e) the judgment becomes void ab initio.
9. A void judgment is treated as if it never existed.
10. A void judgment cannot be perfected, cannot be enforced, and cannot be relied
upon.
E. Consequences When a Judge Fails to Provide
Proper Reasons
11. The High Court has repeatedly held that failure to give proper reasons is itself an
ReplyDeleteerror of law.
12. A judge must:
(a) identify the issues; (b) state the applicable law; (c) explain the reasoning process; (d)
address the parties’ submissions; (e) explain why the statutory purpose was accepted or
rejected.
13. Failure to do so:
(a) constitutes jurisdictional error; (b) renders the judgment appellable; (c) invalidates the
judgment; (d) requires administrative correction.
F. Consequences When a Judge Refuses to Conduct
the Hearing Required by Statute
14. Section 6(8) of the VPRA requires the judge to conduct a hearing.
15. Failure to conduct the hearing:
(a) is a breach of statutory duty; (b) is a denial of procedural fairness; (c) is jurisdictional
error; (d) renders the judgment a nullity.
16. A nullity must be administratively corrected.
G. Consequences When a Judge Refuses to Accept
Submissions or Evidence
17. A judge who refuses to accept submissions:
(a) denies procedural fairness; (b) fails to consider mandatory relevant considerations; (c)
commits jurisdictional error; (d) renders the judgment void.
H. Consequences When a Judge Refuses to Allow
Future Applications (Ultra Vires)
18. A judge has no power to prohibit future applications.
19. Such a refusal is:
(a) beyond jurisdiction; (b) legally ineffective; (c) itself jurisdictional error; (d) a ground for
nullity.
I. Why CIV 1628 of 2026 Must Be Re‐Allocated
20. The judgment of 27 August 2026 is a nullity because:
(a) the judge refused to conduct the hearing; (b) the judge refused to consider the
Addendum; (c) the judge refused to consider submissions filed before the hearing; (d) the
judge misapprehended the Applicant’s case; (e) the judge refused to allow future
applications; (f) the judge failed to provide proper reasons; (g) the judge ignored the
legislative intent of Division 1, Part V.
21. A nullity cannot be corrected by appeal because there is no appeal mechanism.
22. Only administrative re‐allocation can correct the defect.
23. The matter must be re‐listed before a different judge.
J. Relief Sought
24. The Applicant respectfully requests that all Registrars:
Subject: Timeline of Communications and Confirmation of Compliance
ReplyDeleteDear Associate / Supreme Court Registry,
I write to provide a short, factual timeline of the communications sent on 1 and 2 September 2026. This is for clarity only and to confirm that I have complied fully with His Honour Justice Gething’s directions regarding the proper communication protocol.
Please find the timeline below:
1 September 2026 — 4:54 PM Email sent to all Registrars and the Chief Justice regarding the jurisdictional issue arising from the s.6(1) VPRA application and requesting administrative re‑allocation. I acknowledge that this communication did not follow protocol.
2 September 2026 — 9:30 AM Email received from the Associate to Justice Gething advising that broadcast emails are inappropriate and directing that all future correspondence be sent only to His Honour’s chambers or the SC Central Office.
2 September 2026 — 10:59 AM Apology and new submission sent to the Associate to Justice Gething, confirming compliance with His Honour’s instructions.
2 September 2026 — 11:00 AM New submission and apology sent to the Supreme Court Registry. Acknowledgment received at 11:01 AM confirming receipt and advising that a response will be provided within five working days.
I apologise again for the earlier broadcast communication and confirm that I am now proceeding strictly in accordance with His Honour’s directions.
Yours sincerely,
Nicholas Ni Kok Chin
ReplyDeleteNicholas N CHIN
Attachments
10:59 AM (2 hours ago)
to Associate
Thank you for your reply.
Dear Associate
Thank you for your email received this morning. I acknowledge His Honour’s direction that further correspondence must be sent only to Justice Gething’s chambers or to the SC Central Office. I will comply fully with that instruction from this point forward.
I also wish to apologise for the broadcast emails that were sent previously. What has been done cannot now be undone, and I regret that those communications did not follow the proper protocol. My intention was only to ensure that the Court was aware of the jurisdictional difficulty arising from the s.6(1) VPRA application, which has no appeal mechanism. I now understand that all communication must remain within the channels His Honour has specified.
For completeness, I attach again ONLY my written submission, TO BE READ together with the memorandum addressed to the Chief Justice and the earlier email to the Registrars concerning judge allocation. These documents were sent in good faith to clarify the procedural position and to ensure that the Court understood the statutory context of the matter.
I confirm that I will now proceed strictly in accordance with His Honour’s instructions received today.
Yours sincerely Nicholas Ni Kok Chin
SUPREME COURT OF WESTERN AUSTRALIA
ReplyDeleteCOURT OF APPEAL — CIVIL JURISDICTION
NOTICE OF APPEAL (EX PARTE)
JURISDICTION:
Supreme Court of Western Australia
CITATION OF DECISION APPEALED:
Nicholas Ni Kok Chin [2026] WASC 369
CORAM:
Gething J
HEARD:
27 August 2026
DELIVERED:
1 September 2026
FILE NO.:
CIV 1628 of 2026
BETWEEN:
NICHOLAS NI KOK CHIN
Plaintiff / Applicant below Appellant (Ex Parte)
1. NATURE OF APPEAL
This is an ex parte appeal from the decision of the Honourable Justice Gething delivered on 1 September 2026 in CIV 1628 of 2026, reported as Nicholas Ni Kok Chin [2026] WASC 369, refusing the Appellant leave under s 6(1) of the Vexatious Proceedings Restriction Act 2002 (WA) (“VPRA”) to commence proceedings against the proposed defendant, the City of Swan (amended from the State of Western Australia).
The Appellant has been subject to VPRA restrictions since 2012.
The proposed defendant is not a party to this appeal.
The ex parte nature of this appeal is mandated by:
VPRA s 6(1)
CACV 88 of 2018 (Chin — Ex Parte)
Chin ex parte [2019] HCASL 382, which (although concerning Paul Chung Kiong Chin) illustrates that VPRA applications and appeals are dealt with ex parte, on the material filed by the applicant alone.
2. DECISION APPEALED
The Appellant appeals against the whole of the decision and orders of Gething J delivered on 1 September 2026, including:
The dismissal of the Appellant’s VPRA s 6(1) application.
The finding that the Appellant had “no prima facie ground” under VPRA s 6(5).
The refusal of leave to commence proceedings.
3. ORDERS SOUGHT ON APPEAL
The Appellant seeks orders that:
The appeal be allowed.
The decision of Gething J in Nicholas Ni Kok Chin [2026] WASC 369 be set aside.
The Appellant be granted leave under VPRA s 6(1) to commence proceedings against the City of Swan, alleging:
statutory compensation under Transfer of Land Act 1893 ss 201 and 205;
statutory breach under Property Law Act 1969 s 52.
Alternatively, the matter be remitted to a different judge for reconsideration according to law, specifically on the issue of irremediable injustice, of which both the Principal Registrar and the Chief Justice were already on notice.
No order as to costs (ex parte appeal; no respondent).
Any further orders the Court considers appropriate.
4. GROUNDS OF APPEAL
(Compliant with SCR r 32 — numbered, concise, identifying errors of law.)
Ground 1 — Misapplication of VPRA s 6(5)
His Honour applied a merits‑based test instead of the statutory prima facie threshold required by VPRA s 6(5). His Honour’s statement that the Appellant “raises no argument not already rejected” is not the statutory test.
Ground 2 — Failure to exercise jurisdiction under VPRA s 6(1)
His Honour treated himself as functus officio and declined to reconsider the Appellant’s application, stating that the arguments should be raised “on appeal”. This constitutes failure to exercise the jurisdiction conferred by VPRA s 6(1).
Ground 3 — Failure to consider mandatory statutory provisions (TLA ss 201 & 205)
ReplyDeleteHis Honour failed to consider the Appellant’s proposed statutory compensation claims under Transfer of Land Act 1893 ss 201 and 205.
His Honour also failed to consider the Registrar’s statutory duties under:
TLA s 52(2) — subsisting easements deemed part of the estate;
TLA s 56 — duty to register restrictive covenants;
TLA s 69(2) — duty to encumber future titles;
TLA s 129A(1)–(6) — lawful creation of estates without deed; registration obligations.
These provisions were central to the Appellant’s statutory compensation claim and constituted mandatory relevant considerations.
Ground 4 — Failure to consider PLA s 52 (misleading conduct in relation to land)
His Honour failed to consider the Appellant’s proposed statutory claim under Property Law Act 1969 s 52.
His Honour also failed to consider:
PLA s 34(1)(a) — creation of interests by parol;
PLA Part V (ss 45–52) — statutory protection of easements and covenants;
The legislative intent in the Property Law Bill 1969 permitting creation of easements without deed.
This omission constitutes failure to consider mandatory relevant considerations.
Ground 5 — Error of principle: treating prior decisions as determinative
His Honour relied on earlier decisions involving the Appellant and treated them as binding, instead of conducting the fresh statutory assessment required by VPRA s 6. This is an error of principle.
Ground 6 — Denial of procedural fairness
His Honour failed to engage with the Appellant’s written submissions, statutory extracts, and authorities, including:
Hermansen’s expert material on quasi‑easements;
Halsbury’s Laws of England Vol 14 para 62;
Statutory extracts from TLA ss 52, 56, 69, 129A and PLA ss 34, 52;
Documentary evidence from CIV 2074 of 2018 and CACV 88 of 2018.
This constitutes denial of procedural fairness.
Ground 7 — Failure to consider relevant Court of Appeal material (CACV 88 of 2018)
The Appellant directed His Honour to specific pages of the CACV 88/2018 appeal book. His Honour did not address those pages or their relevance to the prima facie threshold.
Ground 8 — Failure to consider evidence of irremediable injustice arising from prior appellate error
His Honour failed to consider the Appellant’s submissions and documentary evidence demonstrating irremediable injustice arising from the Court of Appeal’s handling of CACV 88 of 2018, including procedural unfairness, systemic failure, and absence of available remedies.
This evidence was directly relevant to whether the Appellant had established a prima facie ground under VPRA s 6(5). Failure to consider this material constitutes an error of law.
Ground 9 — Failure to consider doctrine of implied easements upon division of title (quasi‑easements)
ReplyDeleteHis Honour failed to consider the Appellant’s submissions concerning the common‑law doctrine of implied easements, including Wheeldon v Burrows, Hermansen, and Halsbury.
These authorities establish that quasi‑easements arise automatically upon division of title, attach to the dominant tenement, burden servient tenements, and do not require mention in deeds.
Failure to consider this doctrine constitutes failure to consider mandatory relevant considerations and an error of law.
Ground 10 — Failure to consider Registrar’s statutory duties under the TLA
His Honour failed to consider the Registrar’s statutory duties under TLA ss 52(2), 56, 69(2), and 129A(1)–(6), which were central to the Appellant’s proposed statutory compensation claim.
This omission constitutes failure to consider mandatory relevant considerations and an error of law.
Ground 11 — Failure to consider new, uncontradicted evidence (City of Swan admission)
His Honour failed to consider the new, material, and uncontradicted evidence that the City of Swan, through Rhett Walker, admitted liability for the Appellant’s loss.
This evidence was not available in earlier proceedings, was uncontradicted, and was directly relevant to the prima facie threshold under VPRA s 6(5). Failure to consider it constitutes an error of law.
5. APPELLANT’S DETAILS FOR SERVICE
Name: Nicholas Ni Kok Chin Address: 387 Alexander Drive, Dianella WA Telephone: 0411 930 635 Email: nnchin2@gmail.com
SIGNED BY NICHOLAS NI KOK CHIN on 7th day of September, 2026.