WRITTEN SUBMISISSION BY PAUL CK CHIN FOR JUSTICE KENNETH MARTIN IN CIV 1112 OF 2010

IN THE SUPREME COURT CIV 1112 OF 2007
OF WESTERN AUSTRALIA

BETWEEN

TIMOTHY ROBIN THIES PLAINTIFF

AND

PAUL CHUNG KIONG CHIN FIRST DEFENDANT

AND

REGISTRAR OF TITLES SECOND DEFENDANT

OUTLINE OF WRITTEN SUBMISSIONS FILED BY FIRST DEFENDANT IN CIV 1112 OF 2007 PURSUANT TO DIRECTIONS HEARING BEFORE JUSTICE KENNETH MARTIN ON 30.4.2010 DELIMITING NICHOLAS N CHIN’S CAPACITY AS FREE AGENT FOR HIS SON THE FIRST DEFENDANT CONTRARY TO AGREEMENT REACHED BETWEEN NICHOLAS N CHIN AND MR. TIMOTHY ROBIN THIES THAT PAUL REMAINS INACTIVE IN THE RELEVANT PROCEEDINGS ON 17.6.2009, SUCH AGREEMENT HAVING BEEN ACHIEVED BY THE PARTIES BEFORE JUSTICE HASLUCK.
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Date of Document: 10th May 2010
Date of Filing: 10th May, 2010
Filed and prepared by the First Defendant on his own behalf as self-representing litigant:
PAUL CHUNG KIONG CHIN
387, Alexander Drive Phone & Fax: 618 9275 7440
DIANELLA WA 6059 Email: nnchin@msn.com
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TABLE OF CONTENTS PAGE NUMBERS

MY FATHER THE PLAINTIFF IN THE REVIEW ORDER CASE 2
PAUL NOT LIABLE FOR COSTS AS LONG AS HE IS INACTIVE 2
NO PROFESSIONAL RELATIONSHIP BETWEEN FATHER AND SON 3
CAVEAT CASE AND REVIEW ORDER CASE ARE MERGED 3
MR THIES AND HIS AGENT BE FOREWARD THAT THEY ARE LIABLE CRIMINALLY FOR TORTURING ME AGAIN: 4
WHY MY FATHER IS NOT ‘HOPELESSLY CONFLICTED’ WHEN HE ADVOCATES MY CAVEAT CASE: 4
THE ISSUE OF OUR TERMINATION OF MR. THIES LEGAL SERVICES STOPPING THE ESCALATION OF UNCONSCIONABLE COSTS OF MR. THIES HAS NEVER BEEN LITIGATED BEFORE IN THE COURTS BELOW: 5
REFERENCES TO FRAUD HINTED AT BY JUSTICE HASLUCK 6
MR. THIES IS CULPABLE FOR INCURRING DAMAGES FOR THE WRONGFUL CAVEAT WHICH HAS BEEN QUANTIFIED AT $100.00 PER DAY AND CONTINUING 6
MR. THIES DOES NOT HAVE THE HONEST BELIEF THAT HE HAD A CAVEATABLE INTERESTS IN THE CAVEAT PROPERTY 7
NO SERIOUS QUESTION TO BE TRIED THEREFORE CAVEAT CASE TO BE DETERMINED IN THE REVIEW ORDER CASE 8
MR. THIES DID NOT EVEN HAVE AN EQUITABLE MORTGAGE NOR CHARGE NOR EVEN A PERSONAL RIGHT BECAUSE THE PARTIES WERE NEVER AD 10
IDEM ON THIS 10
TRANSFER OF LAND ACT 1893 CLEARLY REFLECTS THE COMMON LAW AS INDICATED ABOVE: 12
CONCLUSION: 13



Your Honour

MY FATHER THE PLAINTIFF IN THE REVIEW ORDER CASE
1. My father Nicholas N Chin is made the Plaintiff by His Honour Justice Hasluck when the Review Order was granted by His Honour Justice Hasluck in his judgment in the case of RE MICHELIDES; EX PARTE CHIN [2008] WASC 256 in accordance with s.36 of the Magistrates Court Act, 2004 in CIV 1903 of 2008 (the Review Order).
2. His Honour made the Respondent to this Review Order Mr. Timothy Robin Thies the First Defendant and me as the Second Defendant (the Review Order case).

PAUL NOT LIABLE FOR COSTS AS LONG AS HE IS INACTIVE
3. It is implicit in the subsequent proceedings in the Review Order case that Mr. Thies should not be seen anymore to be exploiting my vulnerabilities as I have a thin skull. I cannot be subject to stress as I do not understand the law and whenever I am pressured by Mr. Thies, I succumbed to him. As a consequence, neither Mr. Thies nor his counsel should use their legal skills and their unconscionable conduct to corner me again as a victim of their predatory conduct, which contains all the elements of professional misconduct by intimidating me and by seeking me to confront him in court knowing that I am powerless by their the exclusion of my father Nicholas N Chin who is always there to protect me. I was promised by Mr. Scott Ellis acting as counsel for Mr. Thies in the presence of Justice Hasluck on 17.6.2009 that my name be entered as the Second Defendant on condition that I remain inactive and that I will not be liable for any costs consequences. However, his Honour Justice Kenneth Martin on 30.4.2010 in the directions before my father does require me to write this Written submission for my CIV 1112 of 2007 case (the Caveat Case) where I am the First Defendant litigant in person as my father is being excluded unjustifiably from acting as my free agent and/or my Mc Kenzie friend though he has never acted as my solicitor in the past. He is a barrister and solicitor and his name has not been struck off the roll and he is therefore entitled to use his title.

NO PROFESSIONAL RELATIONSHIP BETWEEN FATHER AND SON
4. There is no professional relationship of client and solicitor between my father and myself in all his dealings with Mr. Thies all this while as my father is doing his duties as any father would do for any of his son and all his works are on a pro-bono basis to me. It is therefore incorrect for Your Honour to stop my father from speaking up for me in the Caveats Case unless you can provide a justification for doing so in accordance with the law.
5. My father’s interests in the Caveat Case right from its inception and my interests in this matter have always been coinciding with each other and I cannot see the reason as to why Your Honour is saying that my father is acting in conflicts of interests or that he is seriously conflicted when he speaks up for my Caveats Case.
6. I do not understand why you are doing this despite the agreement already reached between Mr. Thies and his counsel barrister Scott Ellis that was recorded in the transcript of the proceedings on 17.6.2009 that I play no active part in the proceedings in the Review Order Case which has a direct bearing in the Caveat’s Case. I understand that Your Honour is not up to date with the contents of the said transcript and have therefore made the error in Your Honour’s comment on the 30.4.2010 with regard to this issue.
7. Your Honour, no one should exploit my vulnerabilities, defraud me of monies and abused their powers as officers of this Honourable Court whilst doing so. Mr. Thies is clearly guilty of professional misconduct and the evidentiary materials point to this state of affairs. It is for this Honourable Court to do justice to all members of the public in accordance with the law.

CAVEAT CASE AND REVIEW ORDER CASE ARE MERGED
8. The Caveat case should now be merged with the Review Order case and if Your Honour has any justification for not doing so, the Caveats Case should then be put aside and the issues in the Review Orders Case should be thrashed out first between the contending parties. A final decision made in the Review Case would have the necessary consequential effect on the Caveat Case at a later stage. It is agreed that Mr. Thies shall not contact me but shall only contact my father and deal with him direct on all relevant matters.

MR THIES AND HIS AGENT BE FOREWARD THAT THEY ARE LIABLE CRIMINALLY FOR TORTURING ME AGAIN:
9. It has been made clear to Mr. Thies that he should not trouble nor contact me and any contact should be through my father Nicholas N Chin, lest I get sick again and if I do get sick as a result of Mr. Thies troubling me, then I shall hold him liable for all the consequential damages. Mr. Thies is causing me mental torture and had resulted in my relapsing into my illness already on two occasions in the past. Your Honour should be familiar with all the evidentiary materials, which had been presented in the Courts below and I appreciate the learned Justice Hasluck for his willingness to do justice by taking pains to go through all those materials before this Honourable Court. On one occasion as indicated in the said transcript His Honour was ailing at the thought of the mental torture that was caused to me by Mr. Thies who has no conscience as a human being. In this regard, I would like to quote the following passage of my father’s letter to all Members of Parliament of WesternAustralia dated Monday, May 03, 2010 7:41 PM, in the following words:

“—UN Convention Against Torture
On December 10, 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR). Article 5 states, "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Since that time a number of other international treaties have been adopted to prevent the use of torture. Two of these are the United Nations Convention Against Torture and for international conflicts the Geneva Conventions III and IV.

The Government of Western Australia is obliged to take steps to prevent this unlawful torture as provided by Article II:
Article 2 of the United Nations Convention Against Torture provides:
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.”


WHY MY FATHER IS NOT ‘HOPELESSLY CONFLICTED’ WHEN HE ADVOCATES MY CAVEAT CASE:
10. My father is the person who initiated this contractual relationship with Mr. Thies on my behalf and at all material times I respect him as my father and I had followed his decision not as a solicitor but as my natural father who is naturally inclined to protect me as his son.
11. There is never a solicitor client relationship between my father and me but there is a contractual solicitor client relationship between my father and Mr. Thies and I was a pawn caught in between and although my name is included I am never an active party to this relationship. If I had a choice, I would never have engaged Mr. Thies as my solicitor.
12. I allowed my father to deal with these matters and it is his right to continue dealing with Mr. Thies to solve the problem he got himself into until it reaches an outcome. The Outcome will then determine the Caveat’s case. I do not want to deal with it as it stems from Mr. Thies wrongs to me and it is for him to set it aright.
13. I shall not be responsible for the incurrence of any costs in this Caveat case and in the Review Order Case and I am making it clear that I shall not be responsible for any costs orders against me as it is not my act as is conceded to by His Honour Justice Hasluck on 7.6.2009. If this Honourable Court were to allow Mr. Thies to defraud me of my property, so be it and it is for this Court to do justice to me in accordance with my human rights as enshrined in the Constitution of Australia as a democratic government in this world. It is duty of this Court to uphold justice and any person like Mr. Thies or his counsel were to do this not in accordance with the law and their conscience then they can be cited for contempt of court.

THE ISSUE OF OUR TERMINATION OF MR. THIES LEGAL SERVICES STOPPING THE ESCALATION OF UNCONSCIONABLE COSTS OF MR. THIES HAS NEVER BEEN LITIGATED BEFORE IN THE COURTS BELOW:
14. This Honourable Court must have regard to the crux of the matter which lies only on one issue: Mr. Thies’ acceptance of my termination of legal services to me occurred on 22.2.2005 and any further costs which Mr. Thies is claiming from is based on fraud. My father is the person responsible for approving the bills of Mr. Thies and how can this Honourable Court exclude him from dealing with his own matters as a litigant in person. I quote the words of Justice Hasluck at para. 136 of the judgment as follows:

“I have been unable to discern in their reasons a fully considered
response to a central feature of the applicant's complaint, as reflected in
the affidavits before me, that he and his son terminated their contractual
relationship with the respondent in the manner allowed for by the costs
agreement at an early stage; that is, on or about 22 February 2005.”

15. The actual point of dispute now is the sum of $3,500.00 as indicated by His Honour at paragraph 137 of the judgment in the following words:

“In that regard, the applicant points to the respondent's email letter
dated 22 February 2005 directed to the applicant and his son which
commences 'I acknowledge termination of my retainer in the above matter
and Paul's request to have his file back.' At that time, it is said, the
amount ostensibly outstanding by way of legal costs was the sum of
$3,500 as suggested by the respondent's invoice 5028 dated 3 March
2005.”

16. His Honour further elaborated on the unconscionable conduct of Mr. Thies
as follows at para. 138 of the judgment:

“There is therefore evidentiary materials before me to suggest that the
contractual relationship between the parties was brought to an end as at
22 February 2005, being three months after the costs agreement was
signed in early November 2004. It is not clear to me on these materials
how it came about that thereafter the respondent was able to keep
rendering further bills progressively which amounted in the end to a total
figure close to $25,000. There is also the question of whether the costs
agreement was subject to a collateral contract of the kind contended for by
the applicant (said to have been effected by the respondent's letter to the
applicant dated 3 November 2004) whereby time costs bills were to be
approved by the applicant.”


REFERENCES TO FRAUD HINTED AT BY JUSTICE HASLUCK
17. The Review Order Case made 7 references to fraud at paras 119, 122, 123, 134, and also seven references to “unconscionable” or “unconscionability” at paras. 126, 134, 135, 145 and 151. They are all made in respect of or hinting towards the professional misconduct of Mr. Timothy Robin Thies who is guilty of abusing his powers as a solicitor by advancing his own personal interests ahead of his client’s interests, exploiting my vulnerabilities as a person who has a thin skull and he knew of this and is always conscious of doing it despite the protestations of my father and he had indeed defrauded me of monies which I never owe him at all as he was claiming for some $25,000.00 and he finally succeeded in defrauding me and my father in the sum of $11,500.00. His professional misconduct is one that is consistent and blatant and is of substantial nature and is contrary to the provisions of s. 402 and 403 of the Legal Profession Act, 2008 (WA).

MR. THIES IS CULPABLE FOR INCURRING DAMAGES FOR THE WRONGFUL CAVEAT WHICH HAS BEEN QUANTIFIED AT $100.00 PER DAY AND CONTINUING
18. Section 140 of the Transfer of Land Act, 1893 (WA) provides for damages which my father had notified Mr. Thies that he would be liable for and he still persists in trying to covet my home, as follows:

“Compensation for lodging caveat without reasonable cause
Any person lodging any caveat with the Registrar either against bringing land under this Act or otherwise without reasonable cause shall be liable to make to any person who may have sustained damage thereby such compensation as a judge on a summons in chambers shall deem just and order.”

19. I am making this Summons in Chambers to recover these damages and all the evidentiary materials of Mr. Thies’ fraudulent intentions are clear before this Honurable Court on the following facts:
20.
1.1. Mr. Thies knows that I owe him a zero sum debt at the time of my termination of his legal services on 22.2.2005.
2.2. Mr. Thies through his own admissions is making up the debt of $3,500.00
3.3. Mr. Thies escalated that zero sum debt to more than
$25,000.00 by exploiting my vulnerabilities and succeeded in defrauding me of the sum of $11,500.00.
4.4. Mr. Thies was able to defraud me and my father because he exerted duress on us by threats that his legal costs will keep on expanding with no limits in sight and any reasonable person would have succumbed to this threat.
5.5. My father and I were afraid of his threats and succumbed to the duress to pay him the sum of $11,500.00
6.6. Subsections 25(1) and 25(9) of the Magistrates Court (Civil Proceedings) Act, 2004 provides for me to claim back from Mr. Thies all my expenses and losses which include the damages of $100.00 per day which is quantified for him because I could not sell this home property for the right price in the property market at the right time.

MR. THIES DOES NOT HAVE THE HONEST BELIEF THAT HE HAD A CAVEATABLE INTERESTS IN THE CAVEAT PROPERTY
21. Malcolm C J in Bolton v Excell, unreported; FCt SCt of WA; Library 930175; 22 February 1993 states the principles applicable for damages under s.140 as follows:
1.1. The onus is on me, the First Defendant in the Caveat Case to prove that the Plaintiff Mr. Thies’ unlawful caveat was lodged without reasonable cause.
2.2. The test for “without reasonable cause” is whether the First Defendant had an honest belief based on reasonable grounds that he had such an interest.
3.3. The evidence before this Honourable Court and in the courts below shows that HE DID NOT HAVE THIS HONEST BELIEF based on the following grounds:
21.3.1. at the date before he lodged the caveat, he was notified that he did not have a proprietary interests or an equitable charge on the Caveat property;
21.3.2. he therefore did not have an equitable interests to justify a Caveatable interest in the caveat land.
21.3.3. his original belief that he had a caveatable interests in the caveat land was shattered by my father informing him that his costs agreement did not specifically refer to a particular land or the Caveat Property was never specifically identified; it merely signifies a general claim to any property real or personal that I might have and this would have have given rise to a equitable charge even if there was a debt owing to Mr. Thies but here was a zero sum debt;
21.3.4. he was not aware at the time of the signing of the costs agreement that I even own this Thornlie home;
21.3.5. he did not do anything to the caveat land in order to justify a caveatable or equitable claim over the caveat land;
21.3.6. there was no monies owing to him but only the disputed sum of $3,500.00 purportedly claimed by him.
4.4. The fact that the First Defendant DID NOT HAVE THIS HONEST BELIEF is to be judged as of the date that the unlawful caveat was lodged on 11.12.2006 and by the 30.1.2007, he was again NOTIFIED that he did not have an equitable interests over the Caveat Property found at page 40 my Affidavit quoting Sykes, E and S Walker: The Law of Securities, The Law Book Company Ltd, 1993 at page 196 where the learned authors said:
“The only actual requirements of the equitable charge seems to be, first, intention; secondly, if over land, the presence of writing; third, the existence of definite ascertainable property, even though future, over which it is contemplated that the charge shall exist; and lastly, in a few exceptional cases, the presence of consideration; consideration would not save a purely oral agreement.”
20. The test of his honest belief has both subjective and objective elements:
20.1. The subjective element: he had an honest belief that he had a caveatable interest in the land which has been proven that he has not as indicated above.
20.2. The objective element to be based on reasonable grounds - against the background of all the relevant facts and circumstances. All the relevant facts and circumstances have already been examined by the thorough manner in which His Honour Justice Hasluck has gone through the voluminous evidence.
20.3. The Review Order Case bears six references to the impugned caveat of Mr. Thies at paras. 22, 23, 24, 32 and 141 which impinges on Mr. Thies dishonesty in lodging the caveat by stealth which caused the duress upon me to pay him the ransom money of $11,500.00 and he was still as greedy as ever even after the settlement day of the extorted monies which he obtained from me and my father. He is a modern day Robin Hood alas, there are no poor people around him and I am not the rich baron but a poor exploited person who had worked hard to earn his living.
NO SERIOUS QUESTION TO BE TRIED THEREFORE CAVEAT CASE TO BE DETERMINED IN THE REVIEW ORDER CASE:
21. I as the Second Defendant must demonstrate on the evidence that First
Defendant’s claim to a caveatable interest in the caveat Land raises a serious
question to be tried. When this Honourable Court is satisfied that this condition is being fulfilled, then, except in the most exceptional circumstances, this Caveat Case shall not be determined on originating summons. See Porter v McDonald [1984] WAR 271 at 276; Halse v Embling, unreported; FCt SCt of WA; Library No 970734; 22 December 1997.
22. It is patently clear to this Court that the Respondent cannot make any ground or justification for having unlawfully lodged his Caveat on the Caveat Property but it is not appropriate for this Court to attempt to resolve the conflict of evidence based on affidavits alone but it must have recourse to the whole history of the circumstances affecting this case: See Eng Mee Yong (supra) at 341; Halse (supra) per Parker J at page 4. In this context, Brinsden J observed in Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129 at 141 in the following words:

'... the jurisdiction granted by section 138 should not be exercised so as to remove a caveat unless the case is one in which it is patently clear that the estate or interest sought to be protected cannot be made out and that degree of clarity will not emerge if there are disputed questions of fact, when the respondent should be left to proceed by way of action to establish the claimed interest or estate.'

23. In this case, the Respondent in the Review Order case is unable to demonstrate a reasonably arguable case as to the existence of his caveatable interest, the ordinary course is therefore that the Unlawful Caveat should not remain and the disputed question should not be left for trial in the Caveats Case but should be disposed of in the Review Order case as the law does not require for it to be resolved by way of originating summons. It is clear that the Respondent to the Review Order Case is making merely a frivolous and vexatious claim in his Caveats Case as it is plain to this Court that he claim of a caveatable interests is unlikely to succeed and he is making it difficult for me as the Defendant to defend his unmeritorious claim in the Caveat Case. SeeHalse (supra) per Parker J at page 14.
24. Your Honour, I quote the case of Bonini v Western Australian Real Estate Custodian Ltd [2001] WASC 258 Pullin J had this to say at par 11:

"In proceedings under s 138B(2), to extend the operation of a caveat, the court has jurisdiction to decide whether the caveator's claim 'has or may have substance'. In most cases, the practical reasons will still require only a decision about whether the caveator's claim 'may have' substance; in other words, if the caveator has an arguable case. However, there is no longer any legal reason why, in a clear case, the court cannot finally decide that the caveator's claim 'has' substance, ie to finally decide the caveator's claim. And see Australian Security Estates Pty Ltd v Bluecrest Holdings Pty Ltd [1999] NSWSC 524, par 4."

MR. THIES DID NOT EVEN HAVE AN EQUITABLE MORTGAGE NOR CHARGE NOR EVEN A PERSONAL RIGHT BECAUSE THE PARTIES WERE NEVER AD
IDEM ON THIS
25. In MIDLAND BRICK COMPANY PTY LTD -v- WELSH & ANOR [2002] WASC 248, the learned Justice Hasluck has the following to say:
33. It follows from these cases that I must begin by looking at the question of
whether the caveator in the present case can be said to have a caveatable
interests.
34. In earlier discussion I noted that by s 137 of the Transfer of Land Act that
a caveat can be lodged where a person claims "any estate or interest" in the
subject land. The decided cases recognise that it is only a person who has or
claims a legal or equitable interest in land in the nature of an estate or equitable
claim who can lodge a caveat. For example, the High Court held in Municipal
District of Concord v Coles (1906) 3 CLR 96 that a municipal council has not
such an estate or interest in land dedicated to the public as a road as will entitle
it to lodge a caveat.
35. The conventional wisdom in various Australian jurisdictions is that caveats
may only be lodged to protect proprietary interests in land: See Bradbrook
MacCallum and Moore, "Australian Real Property Law" (2nd ed) at par 4.83.
However, in regard to Western Australia it has been argued that the wording
of s 137 of the Transfer of Land Act results in a proprietary interest not being
necessary to establish a caveatable interest . It has been suggested by one
author that the term "interest" is the relevant statutory provision does
not per se import a proprietary interest: See Boyle: " Caveatable Interests"
(1995) 69 ALJ 237. The learned author submits that an equitable interest of the
sort often dismissed as in the nature of a claim in personam, a mere personal
right, is a caveatable interest in the subject land.
36. The same author goes on to say this at 240 of the relevant article:
"A caveat is a statutory injunction: Barry v Heider [1914] 19 CLR 197 at 221. It confers no proprietary interest. Its purpose and function is to maintain the status quo to preserve and protect the rights of a caveator. It prohibits the caveator's interest from being defeated by the registration of a dealing without the caveator having first had the opportunity to invoke the assistance of a court to give effect to the interest: see Kerabee Park Pty Ltd v Daley (1978) 2 NSWLR 222. The interest may arise through the application of legal rules and principles, or it may arise because a specific equitable remedy exists to protect it. To limit the right to caveat only to interests classified as proprietary in nature is to deny a chief purpose of caveats."
In Swiss Bank Corporation v Lloyds Bank Ltd [1982] AC 584 at 594-595 Buckley LJ discussed the difference between an equitable mortgage and an equitable charge. As that discussion shows, an equitable mortgage is created when the legal owner of the property constituting the security enters into some instrument or does some act which, though insufficient to confer a legal title in the subject matter upon the mortgagee, nevertheless demonstrates a binding intention to create a security in favour of the mortgagee or, in other words, evidences a contract to do so. By contrast, an equitable charge is created when property is expressly or constructively made liable, or specially appropriated, to the discharge of a debt or some other obligation, and confers on the chargee a right of realisation by judicial process, that is to say, by the appointment of a receiver or an order for sale.
In the present case, if the plaintiff is to succeed it will be on the basis that the September Deed created an equitable mortgage rather than an equitable charge. As it happens, it seems that the result would be same: because the Forest Hill property has been sold, enforcement by way of foreclosure, appointment of a receiver or sale is no longer possible. But it is clear that if a person has an equitable mortgage or charge over land and the land is sold, the mortgage or charge attaches to the fund which is produced by the sale (see Avco Financial Services Ltd v Commonwealth Bank of Australia (1989) 17 NSWLR 679 at 682 per Young J) and, as mentioned above, Anderson J has ordered that the Evenwood Fund stand in lieu of any security interest in the Forest Hill property that the plaintiff may have.
The primary question is whether cl 6.6 created an equitable mortgage or whether it created merely a personal covenant. In Cradock v Scottish Provident Institution (1893) 69 LT 380 at 382, Romer J said,
"To constitute a charge in equity by deed or writing it is not necessary that any general words of charge should be used. It is sufficient if the court can fairly gather from the instrument an intention by the parties that the property therein referred to should constitute a security."
As Lord Macnaghten said in William Brandt's Sons & Co v Dunlop Rubber Company [1905] AC 454 at 462, when speaking of an equitable assignment, "The language is immaterial if the meaning is plain." Further, in deciding whether the transaction is one creating an equitable mortgage or some other legal relationship all relevant circumstances, as well as the terms of the document, must be considered (see Fisher & Lightwood's Law of Mortgage Aust ed (1995) para 1.23).
The second defendants never became the sole registered proprietors of the Forest Hill property, and there is no direct evidence before the Court as to what Mr Foster was told about their intentions in that regard before he executed the September Deed. However, bearing in mind that only ten days previously in his letter of 25 August 1995 he had required full security by way of mortgage over the property, I infer that he accepted the insertion of cl 6.6 only because he was led to believe that the second defendants were about to become the sole registered proprietors. Otherwise, surely he would have insisted upon their execution then and there of a registrable mortgage of their two-thirds interest. As it is, the clause contains a clear undertaking by the second defendants to grant a third registered mortgage by way of security, and the second defendants already were the legal owners and registered proprietors as tenants in common of two-thirds of the property the subject of the undertaking. Each, therefore, was able to mortgage or otherwise deal separately with his respective share. Again, the obligation secured relates to the repayment of moneys which were to be advanced upon execution of the document: the obligation was immediate and not contingent. In those circumstances, I conclude that the clause granted to the plaintiff an equitable mortgage over the property.

EVEN IF THE ZERO SUM DEBT BECOMES CONJURED UP INTO A $3,500.00 DEBT IN THE MIND OF MR. THIES, IT STILL DOES NOT JUSTIFY A CAVEAT:
26. See the case of: See: Surfers Paradise Coaches P/L v TSU Chan Lin [2007] NSWSC 475 from which is quoted the following:
“The existence of a debt is NEVER, of itself, sufficient grounds to justify a caveat. The debt must be supported by a document in writing evidencing the debt AND charging the land with liability to pay the debt. A document that evidences the debt, but does not charge the land, is not a good basis for a caveat.”
27. Paragraph 25 above refers to an equitable claim in the nature often dismissed as a Claim In personam or a personal right can justify caveatable interests in WA. Such a claim is directed towards a particular person instead of towards a thing as a claim in rem. In personam mean that a judgment can be enforceable against the person wherever he/she is. On the other hand, if the lawsuit is to determine title to property (in rem) then the action must be filed where the property exists and is only enforceable there. It is rather far fetched for Mr. Thies to conceive of a zero sum debt which he imagines to be $3,500.00 and then escalate it to $25,000.00 to warrant to this Honourable Court that he has a caveatable interests and being firmly of this belief he subsequently refused to release it even after payments has been made to him. This is a highly preposterous situation for a lawyer who is supposed to do justice to the common man.

TRANSFER OF LAND ACT 1893 CLEARLY REFLECTS THE COMMON LAW AS INDICATED ABOVE:
28. Even if Mr. Thies has got a personal right against me or even a claim in personam against me, by any stretch of imagination, he cannot have any conceivable caveatable interests under s.137 of the Transfer of Land Act , 1893 (WA). According to the learned author Sandra Boyle in CAVEATABLE INTERESTS - THE COMMON LORE DISTINGUISHED found at: http://www.murdoch.edu.au/elaw/issues/v1n1/boyle11.html, she identifies four categories of caveatable interests in that section as:
(a) any estate or interest in land under the operation of this Act;
(b) any estate or interest under any:
i) unregistered instrument;
ii) document; or
iii) writing
in any lease mortgage or charge;
(c) any estate or interest in any equitable mortgage or charge by a deposit without writing; and
(d) any estate or interest which arises
i) by devolution in law; or
ii) otherwise.

CONCLUSION:
29. Therefore, my claim against Mr. Thies for him to return all the monies he has taken from both myself and my dad together with interests at the rate of 6.00% p.a. from the date he had defrauded me and my father and the damages for the wrongful caveat that he had caused me in accordance with s.140 of the TLA Act and s.25(1) and 25(9) of the MCCP Act. I am compassionate for Mr. Thies in that I do not want to make any claims against him for the nervous shock he had caused to me and my father and other members of my family including my mother.




Signed by: ………………………………… ….
PAUL CHUNG KIONG CHIN




LIST OF AUTHRORITIES
STATUTE LAW:
1. 25(1) and 25(9) of the Magistrates Court (Civil Proceedings) Act, 2004
2. S. 137, 138 and 140 of the Transfer of Land Act, 1893 (WA);
3. S.36 of the Magistrates Court Act, 2004 (WA);
4. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations, 10 December 1984;
5. Universal Declaration of Human Rights, United Nations, 10 December 1948;

ARTICLES:
6. CAVEATABLE INTERESTS - THE COMMON LORE DISTINGUISHED, Article in the Elaw Electronic Law Journal of the Murdoch School of Law by Sandra Boyle found at: http://www.murdoch.edu.au/elaw/issues/v1n1/boyle11.html
7. Boyle: " Caveatable Interests" (1995) 69 ALJ 237.

CASE LAW:
8. Australian Security Estates Pty Ltd v Bluecrest Holdings Pty Ltd [1999] NSWSC 524, par 4;
9. Barry v Heider [1914] 19 CLR 197 at 221;
10. Bolton v Excell, unreported; FCt SCt of WA; Library 930175; 22 February 1993 per Malcolm C J.
11. Bonini v Western Australian Real Estate Custodian Ltd [2001] WASC 258 Pullin J at par 11;
12. Cradock v Scottish Provident Institution (1893) 69 LT 380 at 382;
13. Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129 at 141;
14. Eng Mee Yong (supra) at 341;
15. Halse v Embling, unreported; FCt SCt of WA; Library No 970734; 22 December 1997; Also: Halse (supra) per Parker J at page 4;
16. Kerabee Park Pty Ltd v Daley (1978) 2 NSWLR 222;
17. MIDLAND BRICK COMPANY PTY LTD -v- WELSH & ANOR [2002] WASC 248;
18. Municipal District of Concord v Coles (1906) 3 CLR 96;
19. Porter v McDonald [1984] WAR 271 at 276;
20. RE MICHELIDES; EX PARTE CHIN [2008] WASC 256;
21. see Avco Financial Services Ltd v Commonwealth Bank of Australia (1989) 17 NSWLR 679 at 682 per Young J;
22. Surfers Paradise Coaches P/L v TSU Chan Lin [2007] NSWSC 475;
23. Sykes, E and S Walker: The Law of Securities, The Law Book Company Ltd, 1993 at page 196
24. William Brandt's Sons & Co v Dunlop Rubber Company [1905] AC 454 at 462;