IN THE SUPREME COURT OF WESTERN AUSTRALIA
CACV107 OF 2008
BETWEEN
NI KOK (NICHOLAS) CHIN APPELLANT
And
AUDREY FRANCES HALL as the executrix of the Estate of the late
KENNETH DUNCAN HALL
SPUNTER PTY LTD FIRST RESPONDENT
And
SPUNTER PTY LTD (CAN: 002179375) SECOND RESPONDENT
And
THE REGISTRAR OF TITLES THIRD DEFENDANT
APPELLANT’S NOTICE OF OBJECTION: UNDATED PLAINTIFF’S BILL OF COSTS HAND-DELIVERED TO APPELLANT ONLY ON 3.11.2010 IN THE PRESENCE OF THE TAXING MASTER THAT WAS TAXED FOR $13,983.26.
Date of Document: 4th November, 2010.
Filed on behalf of: The Appellant.
Date of Filing: 4th November, 2010.
Prepared by:
NICHOLAS NI KOK CHIN – LAWYER
387, Alexander Drive,
DIANELLLA WA 6059
Phone: 08 92757440
Mobile: 0431398973, 0421642735
Emails: nnchin@msn.com; nnchin1@gmail.com
TAKE NOTICE that I, the Appellant am objecting to the taxation of the bill of costs by the Taxing Master Registrar David Powell on the ground that His Honour has made an error in principle pursuant to r.53(1) of O. 66 of the RSC (The Error).
The Error consists in the Taxing Officer allowing all items in toto in that bill for taxation under circumstances which he knows or ought to have known that those items being objected to in toto should not have been allowed . This is because the Plaintiff had not been rendered with the necessary services by her Solicitors McCallum Donavan Sweeney , which is the subject matter of the bill of costs being taxed, on the following grounds:
a) The Caveats of the First Defendant had already been removed, through the solicitor’s work of the Second Defendant in CIV 1142 of 2005 on the 11.2.2006 by way of the operation of law when CIV 1131 of 2006 was not filed on 10.2.2006 by David Taylor Solicitor on behalf of the First Defendant.
b) The first subject judgment of Master Sanderson for the Plaintiff cited as AUDREY FRANCIS HALL as executrix of the estate of KENNETH DUNCAN HALL -v- CHIN [2008] WASC 255 {(See Supreme Court Website at http://decisions.justice.wa.gov.au/supreme/supdcsn.nsf): (sic: “Heard: 29 OCTOBER 2008 Delivered: 10/28/2008”): (prejudgment?)} only removed a vacuum as there were no longer any of the First Defendant’s Caveats still in existence by then.
c) The second subject judgment of the Court of Appeal for the Plaintiff cited as CHIN -v- HALL [2009] WASCA 216 heard 12.8.2008 and delivered 12.9.2009 is for the Plaintiff resulting in the costs of the both the first and second subject judgments to “follow the event”. The Court of Appeal handed down a perfect judgment, except for its technical slip which the Applicant is applying to have it rectified .
d) The functions of Registrar Powell as the Taxing Master are to carry out his judicial functions honestly in assessing that bill by ascertaining whether “the services have been performed” as a first step in the taxation process, which is the touchstone for recoverability for those itemized costs. They are being limited only to whether such services of the removal of the First Defendant’s Caveats were provided by the Plaintiff’s solicitors or by the Second Defendant two years earlier and it is his duty to determine these facts as they are presented before it.
e) There is thus no liability for Master Sanderson’s costs order on the part of the Second Defendant; there is nothing to be assessed on a standard basis for the party and party costs, which is said to have “followed the event” in the first subject judgment and therefore the same logic follows for the second subject judgment.
f) The principle of taxation of costs is that that Taxing Master must first consider whether a particular item is allowable to be taxed and the test of the recoverability of that item is based on the touchstone that the legal services had indeed been provided to the Plaintiff and that it was necessary in the circumstances. If that first hurdle results in those items being dismissed in toto, there is no necessity to proceed with the taxation by going through the process of determining the quantum of those items that have not been allowed or should not have been allowed .
g) The Taxing Master has an honest duty to disallow all those items and he cannot say he cannot override the decision of Master Sanderson who delivered his costs order against the Appellant and the Second Respondent, nor is it available for him to say that he cannot override the costs orders of the court of appeal in the second subject judgment, when it is clear to him that these two costs orders are plainly wrong. His functions are there to do justice to the parties and he cannot run away from this duty. He could escape from this technicality by ascribing a $ZERO assessed cost to those items. This state of affairs had happened in the past to another case which I understand is the correct procedure i.e. in the case of a District Judge in District Court Appeal No.39 of 2008 in the case of Alessandro Bertini which is not reported. I have seen this order myself and I will be able to produce it if necessary.
h) The honesty of the Taxing Master vis a vis the Affidavit material of David Taylor Solicitor sworn 29.3.2007 has been relied upon by the Court of Appeal in paragraphs 54 and 54 of the joint judgment in CACV 107 of 2008 (the technical slip); this reliance caused it to make that technical slip which is now being sought by the Second Defendant in CIV1877 of 2010 to be rectified before a Court of Appeal judge pursuant to s.33 of the Supreme Court Act, 1935 WA.
i) Registrar Powell is in jurisdictional excesses when he failed to respond to the call by the Second Respondent to abstain himself from taxing the bill on the ground of his apprehended bias against the Second Defendant and that he is therefore a judge of his own cause because he did try to cover up David Taylor’s falsification of the court records in CIV 1131 of 2006 and is continuing to deny this. This has been recorded in the transcript of the proceedings before him on 3.11.2010. The Taxation Orders issued by the Taxing Master are therefore of null effects and are not enforceable in any courts of law.
Signed by the Appellant
NICHOLAS NI KOK CHIN – LAWYER
To:
The Solicitors for the Plaintiff: Messrs. McCALLUM DONOVAN SWEENEY
Barristers & Solicitors
2nd Floor, Irwin Chambers
16, Irwin Street, PERTH WA 6000
53. Party dissatisfied with taxation may object
(1) A party who contends that the Taxing Officer has made an error in principle in allowing or disallowing any item or part of an item in a bill of costs taxed by him may, at any time before a certificate of taxation dealing finally with that item is signed, or at such earlier time as may, in any case, be fixed by the Taxing Officer —
(a) deliver to the other party interested in the allowance or disallowance and carry in before the Taxing Officer, an objection in writing to the allowance or disallowance specifying in the objection by a list, in a short and concise form, the items or parts of items objected to, and the grounds and reasons for the objections; and
(b) thereupon apply to the Taxing Officer to review the taxation in respect of those items or parts.
(2) Pending the consideration and determination of the objection, the Taxing Officer may if he thinks fit issue a certificate of taxation for or on account of the remainder or of part of the bill of costs. Any further certificate which may be necessary shall be issued by the Taxing Officer after his decision upon the objections.
See O.66 r.1(2) of the RSC which provides:
“If the Court is of opinion that the conduct of a party either before or after the commencement of the litigation or that a claim by a party for an unreasonably excessive amount has resulted in costs being unnecessarily or unreasonably incurred it may deprive that party of costs wholly or in part, and may further order him to pay the costs of an unsuccessful party either wholly or in part.”
See page 136 of the Yellow Appeal Book which shows that the Taxing Master spoke the truth when he admitted that the filing fees of $654.20 was paid by David Taylor Solicitor by way of credit card on 16.2.2006 in CIV 1131 of 2006. Compare this statement with page 47 which is a receipt of the Supreme Court of WA tendered by David Taylor Solicitor in his Affidavit sworn 29.3.2007 showing that the total filing fees of $654.20 and (NOT $654.00 AND SHORT OF F20 CENTS, AS ALLEGED BY THE TAXING MASTER) was paid on 10.2.2006. Therefore sub-paragraph 2.2 of page 136 contains a falsehood that misled the Court of Appeal in CACV 107 of 2008 resulting in the technical slip of the Court of Appeal in its judgment at paragraphs 54 and 55 because it relief on the honesty of the Taxing Master (the falsehood). The falsehood caused the Appeal of the Appellant in CACV107 of 2008 to be dismissed by the Court of Appeal. The falsehood is a convenient device sought by the Taxing Master to cover up the falsification of the court records by David Taylor using the principle of the common law as explained in the judgment, to escape the consequence of David Taylor of not having complied with Justice Jenkins Order in CIV 1142 of 2006 given on 19.1.2006. But for the falsehood caused by the Taxing Master, there would have been no bills of costs in both the CIV 1775 of 2008 and the CACV107 of 2008 today. Therefore, the Taxing Master, by refusing to recuse himself from taxing the two bills of costs is a judge of his own cause. His two taxed bills of costs for the two cases are VOID JUDGMENTS and are not enforceable by any court of law. These proceedings of these VOID JUDGMENTS are recorded in the transcript dated 3.11.2010 and have to be repaired by way of Certiorari in CIV 1877 of 2010.
Berman & Fialkov v Lumb (5395/00) [2002] ZAWCHC 48; [2002] 4 All SA 432 (C) (9 September 2002) per VAN REENEN, J at para. 20 quoting Ramsbottom J in Martens v Rand Share and Broking Finance Corporation (Pty) Ltd 1939 WLD 159 at 163 said with regard to the administrative and judicial functions of the Taxing Master in the English legal system in terms of the following:
“… to decide whether the services have been performed, whether the charges are reasonable or according to tariff and whether disbursements properly allowable as between party and party have been made; his function is to determine the amount of the liability, assuming that liability exists, and the fact that he requires to be satisfied that liability exists before he will tax does not show that there is any liability. The question of liability is one for the court, not for the taxing master.”
See the explanation for the removal of the First Defendant’s Caveats by the Appellant as contained in his Affidavit sworn 5.6.2009 in paragraphs 54 to 62 at pages 23-25 of the Yellow Appeal Book filed and dated 22.6.2009 in CACV 107 of 2008.
David Taylor Solicitor falsified the court records in CIV1131 of 2006 as indicated at page 46 to 48 of the Yellow Appeal Book.
The Appellant lodged a Motion for Certiorari Orders dated 9th June, 2010 in 43 pages in CIV 1877 of 2010 which was heard by Justice Heenan on 4.8.2010 and published on 11.8.2010 cited as RE JUSTICE KENNETH MARTIN; EX PARTE CHIN [2010] WASC 212. Justice Heenan did not have the jurisdiction to make prerogative orders with regard to justices of the same rank as himself. Therefore, the the Appellant was directed by the Registrar of the Court of Appeal on 26.7.2010 to lodge a Further Motion for CIV 1877 of 2010 to be heard by a Cour of Appeal Judge pursuant to s.33 of the Supreme Court Act, 1935, it being not an appeal process to correct that technical slip.
Morison, W L --- "Fuller, The Morality of Law" [1965] SydLawRw 14; (1965) 5(1) Sydney Law Review 181.
At Page: 183: “The ethos of the judge's office demands that he should remain neutral regarding the substantive aims of a statute he is called on to apply, but with regard to the law's "internal morality"-the morality that makes law possible-he must not remain neutral.”
Ramsbottom J in Martens v Rand Share and Broking Finance Corporation (Pty) Ltd 1939 WLD 159 at 163: “ to decide whether the services have been performed …”
KOEHLER -v- CEREBOS (AUSTRALIA) LIMITED [2004] WADC 64 (13 April 2004) per Registrar Harman in these words:
“The plaintiff is entitled to her costs of the action. In accordance with the expression given to that term in Smith v Buller (1875) LR 19 Eq 473, that entitlement is to the reasonable cost of the services necessarily provided to her for the purposes of the action.”
Registrar Harman in relation to r.53 of the RSC, 1971 in the case of Power v Northam Air Services Pty Ltd [2003] WADC said the following:
“The rule only provides jurisdiction to review errors made in the allowance or disallowance of items or their constituent parts. Determining quantum is the step taken after any such allowance or disallowance has been effected. That determination does not resonate in either allowance or disallowance; it is simply the valuation of the services for which allowance had already been made…. I am reinforced in that opinion by the failure of the defendant to articulate any service that was disallowed.”
Why did the Taxing Master refuse to provide the Appellant with the bank statement showing that the filing fees were paid into court on 16.2.2006 instead of 10.2.2006? See page 131 of the Yellow Appeal Book. But for the failure of the Taxing Master to provide this information, the Appellant would have not to appeal the decision of Master Sanderson in CIV 1775 of 2008 to the Court of Appeal in CACV107 of 20
No comments:
Post a Comment