WESTERN AUSTRALIA
OATHS, AFFIDAVIT AND STATUTORY DECLARATIONS ACT 2005
STATUTORY DECLARATION
I, NICHOLAS NI KOK CHIN (D.O.B.24.5.1945) of No. 387, Alexander Drive, DIANELLA WA 6059, former lawyer, sincerely declare as follows:
THE NATURE OF THE ESTATE OR INTERESTS CLAIMED
1. I claimed a First Equitable Interests and hence my caveatable interests as a First Equitable Chargee who was the First Statutory Chargee protected by my previous Caveat J614059C under s. 244 of the Legal Practice Act, 2003 (WA) in the two properties of the late Nancy Cloonan Hall, namely the Mount Lawley Property indicated as Lot 228 on Deposited Plan 32583, also known as No. 86, Grosvenor Street, Mount Lawley in the State of Western Australia and the Hazelmere Property indicated as Lot 126 on Plan 4553 also known as 169, Hazelmere Circus, Hazelmere in the State of Western Australia. Both properties were at all material times registered under the name of Nancy Cloonan Hall as absolute owner. The Mt. Lawley Property has since the 22.3.2010 been transferred to Trayn Nicola Andonoski and Honi Melita Adolphson both of No. 84, Beaufort Street, PERTH as Joint Tenants. The Hazelmere Property has since the 12.10.2010 been transferred to Michele-Maree Gannaway of 30 Mousehole Crescent, YANCHEP (the Caveator’s equitable and caveatable interests in two properties).
1.1. My legal status as the First Statutory Chargee was wrongly and illegally removed by the judgment of Master Sanderson in CIV 1775 of 2008 on 29.10.2008 who erred in holding that this legal status came later in time to the mortgage of the two properties by their owner Nancy Hall: first to Engineering Facilities Pty Ltd (the First Mortgagee) and later this First Mortgage was purportedly transferred to her brother the late Kenneth Duncan Hall (the Second Mortgagee) to become the Second Mortgage. The Second Mortgagee is purported to have paid unproven valuable consideration for it (the purported Second Mortgage).
1.2. The manner in which the Purported Second Mortgage was being dealt with by the widow of the Second Mortgagee in the aftermath of the death of the Second Mortgagee is without Nancy Hall’s permission and consent as this is evidenced by Nancy Hall’s conduct in contesting the illegal and fraudulent claims of her sister in law one Audrey Frances Hall, the widow of the Second Mortgagee in CIV 2073 of 2003 before the learned Justice Jenkins J. The widow is incidentally the Plaintiff of CIV 1775 of 2008 (the widow).
1.3. The widow pretended that that the redemption of the First Mortgage was caused and effected by valuable consideration changing hands but this is not the case.
1.4. In reality, the First Mortgage is a sham mortgage arranged with Nancy Hall’s consent by her late brother expressing his good-will for his sister Nancy Hall in order to help her out of her financial difficulties without valuable consideration changing hands.
1.5. The Second Mortgage is also a sham mortgage that was arranged with Nancy Hall’s consent by her late brother before he died but this situation was turned into a perceived opportunity for profit by the widow and her co-conspirators and this was taken advantage of by the widow after the Second Mortgagee passed away. In fact, the Second Mortgagee gave Nancy the right to claim back her full ownership of those two properties by signing a discharge of the Second Mortgage.
1.6. Nancy Hall did not leave a will for her daughter Michele-Maree Gannaway but she left an informal will to her default judgment creditor in District Court CA 2509 of 2002 i.e. Maurice Fredrick Law to “have a first call on my estate”. As a result, Spunter only acquired equitable interests and hence caveatable interests in the two properties of Nancy Hall and her other properties in the Colliefields Hotel only after she had passed away on 17.1.2008.
1.7. Nancy Hall also left me a written costs agreement for my solicitors fees and she was happy even at the time when she was dying that I have had a caveatable interests over her two properties and she expected that I will therefore continue to work for her in the best interests of her estate after she is longer around. She knows that the residual of her estate will go to her only heir Mrs. Gannaway and her line of descendants. There is also evidence advanced by Maurice Frederick Law or Spunter in the further proceedings in DC 2509 of 2002 to the effect that the First Mortage is a sham as no monies ever changed hands.
1.8. The situation above is being explained by Nancy Hall herself in her own Affidavit (See Annexure: NNC1-1 to NNC-1-4) Affidavit of Nancy Hall, sworn 13.1.2006, in CIV 1142 of 2006).
1.9. Maurice Frederick Law or Spunter as Nancy Hall’s judgment creditor is only entitled to claim from the estate of Nancy Hall that is limited to the sum of some $144k plus incidental costs. These claims from Nancy’s creditors is being built up as a result of the recalcitrant conduct of the widow of the Second Mortgagee and Mrs. Gannaway avoiding and evading Nancy Hall’s legitimate creditors. These creditors include myself as the First Statutory Chargee of the Nancy’s two properties and Mr. Maurice Frederick Law or Spunter.
1.10. As Nancy Hall’s solicitor I rightly advised her that Spunter did not have a caveatable interests in her two properties in CIV 1142 of 2005 and therefore the Spunter’s caveats ought to have been removed but the then solicitor for Spunter David Taylor misled Spunter into the false belief that it did have a caveatable interests in those two properties when it did not. In order for Spunter to have a caveatable interests which it was deluded to have by David Taylor Solicitor, Spunter must have loaned those monies to Nancy Hall specifically for the purpose of improving those two properties and this Spunter did not do so. The monies loaned to Nancy Hall were for other purposes other than to improve those two properties. That is the reason why David Taylor was hesitant to lodge CIV 1131 of 2006 within the time constraints imposed by Jenkins J in CIV 1142 of 2006 but the learned Justice made time of the essence for that due compliance of her order failing which the Spunter’s Caveats would have lapsed and expired by operation of law by virtue of ss. 138A, B and C and this indeed happened on 10.2.2006.
1.11. Solicitor David Taylor however, was working in collaboration with Registrar Powell who committed a First Fraud on Justice Jenkins in CIV 1142 of 2005 that caused the void or voidable extension of the Spunter’s Caveat when they should have expired by 10.2.2006. He did this by swearing an Affidavit dated 29.3.2007 filed in CIV 1131 of 2006 to the effect that he had complied with Justice Jenkins Order in the former case to file an equitable claim in the latter case by the deadline date of 10.2.2006 when he did so only on the 16.2.2006 after that deadline had lapsed. By committing that First Fraud on Jenkins J, David Taylor had caused me to have removed the Spunter’s Caveat by 10.2.2006 automatically by operation of law and that situation enabled me to lay my claim in my legal status as the First Statutory Chargee on the two properties of Nancy Hall.
1.12. Master Sanderson should have just simply determined the issue of the causal connection between my solicitors work and the removal of the Spunter’s Caveat in CIV 1775 of 2008 (the crucial issue). If His Honour had decided on this crucial issue, either wrongly or rightly and if it is the former case, it would have allowed me to appeal against that decision in CACV 107 of 2008.
1.13. Since, it was a neither there or here situation, I appealed that decision of Master Sanderson anyway, to the Court of Appeal in CACV 107 of 2008 and that appeal court is found to have made a technical slip at paragraphs 54 and 55 of its judgment by relying on the mischievously misleading letter of Registrar Powell dated 11.6.2009 found at page 136 of Yellow Appeal Book. Again, at the appeal court level, the crucial issue was not being decided by the Court of Appeal.
1.14. Subsequently, I applied to the High Court for Special Leave to have this crucial issue decided. The High Court refused me leave on the ground that I have not elaborated on this crucial issue exhaustively and therefore this crucial issue is again not yet decided by the High Court.
1.15. Since the three levels of our judicial system did not decide this crucial issue, it is not being debarred by the principle of res judicata and therefore this crucial issue can again be decided afresh by my Application for Certiorari Orders in CIV 1877 of 2010 for this technical slip to be repaired without resorting to an appeal by virtue of s.33 of the Supreme Court Act, 1935 WA. That is why I am putting up my two new caveats to protect my First Equitable and Caveatable Interests in place of my First Statutory Interests that was protected by my former caveat J614059C. My First Statutory Interests was taken away from me by Master Sanderson and the situation is further exacerbated by the Court of Appeal committing a technical slip in the manner as explained above.
1.16. The crucial issue also referred to by me above, as the First Fraud on Jenkins J, is being exhaustively explained in my Affidavit in Support of my Application for a Suspension Order in CACV 107 of 2008 filed and sworn by me on 23.2.2011 and served upon the solicitor for the widow Mr. Anthony Prime of McCallum Donovan Sweeney on the same day (See Annexure: NNC-2-1 to NNC-2-27).
1.17. The First Fraud on Jenkins J led to my abdicating myself from representing Nancy Hall in the CIV 1131 of 2006 and it also stopped me through the LPCC from further representing Nancy Hall against the widow. I had refused to participate in these proceedings which began with impropriety. Nancy Hall was therefore representing herself as a litigant in person, which resulted in the widow causing the Second Fraud on Jenkins J. As a result, the widow became the owner of Nancy Hall’s two properties which led to the untimely death of Nancy Hall when in CIV 2073 of 2003 the widow was awarded damages of $2.3 million on 19.12.2007 in the case of AUDREY FRANCES HALL as Executrix of the Will of KENNETH DUNCAN HALL (Dec) v HALL [2007] WASC 34 arising from a sham mortgage. After Nancy Hall’s death on 17.1.2008, Mrs. Gannaway was not happy with this situation of the widow having gained all the assets of her late mother. She started to join in the appeal in CACV 53 of 2007 which her late mother had started against the decision of Jenkins J in CIV 2073 of 2003 in the Court of Appeal. When Spunter expressed its desire lately to become a party to this appeal by joining in with Mrs. Gannaway, both she and the widow got together and they settled amongst themselves. This resulted in Mrs. Gannaway becoming the trustee and the fiduciary for the estate of the late Nancy Hall including the two properties. Mr. Gannaway would become the sole owners of these properties if there were no creditors of her late mother to contend with and she managed to sell the Mt.Lawley Property to some third parties and she acquired the Hazelmore Property in her own name as indicated above. This is a criminal breach of trust by Mrs. Gannaway.
1.18. I, as Nancy’s former solicitor had salvaged the two properties for her in my solicitors work in CIV 1142 of 2005 together with my other ancillary duties performed for her from time to time and for which she had secured the payment of her solicitor’s fees to me with a written costs agreement signed by her dated 31.3.2005 and 19.4.2005.
1.19. The Court of Appeal granted me $20,000.00 to be kept in trust for me by the solicitor of the widow McCallum Donovan Sweeney through its solicitor Anthony Prime pending the appeal in CACV 107 of 2008. This $20,000.00 is not enough to compensate me for my losses. My appeal in CACV107 of 2008 caused me $50k, the Special Leave Application to the High Court in P1 of 2010 costs me $20k and my CIV 1877 of 2010 is costing me $20k. There is now my application for Suspension Order to stay the execution of the two costs orders by Master Sanderson and the Court of Appeal which is $10k and now my two new caveats which is costing me $1k. So the total costs have escalated to $121k. I am still working for Nancy Hall’s estate as a solicitor although I am not entitled to be in legal practice as I am in dispute with the regulator in CACV 41 of 2010. This is excepted on the grounds of necessity as there would be no one to defend my case and consequently the estate of Nancy Hall if I am not working on it myself. I am being “short-changed” in the appeal process by the technical slip of the Court of Appeal. As a result, my status as the First Statutory Chargee has now been converted into that of a First Equitable Chargee for which I am putting up two new caveats to replace my old Caveat J614059C. In this regard, Owen JA of the Court of Appeal in CACV 107 of 2008 also cited as CHIN -v- HALL [2009] WASCA 216 (9 December 2009) on 9.12.2009 at paragraph 28 stated:
“28 As at the date of this appeal hearing, neither the Mount Lawley property nor the Hazelmere property have been sold. The court was informed from the bar table that the Mount Lawley property had been subject to a contract for two years but had not proceeded to settlement. Audrey Hall had given an undertaking to Chin that should the property be settled, $20,000 would be put in trust pending the outcome of the appeal. The Hazelmere property had been taken off the market, but would be offered for sale again.”
1.20. This technical slip is about the Court of Appeal in Owen JA relying upon the false evidence of Registrar Powell covering up for the false evidence of David Taylor without realizing that David Taylor had filed sworn evidence in CIV 1131 of 2006 which contradicts the cover-up evidence contained in his letter dated 11.6.2009. This letter was replying to my query and this is found at page 136 of my Yellow Appeal Book. Paragraph 54 and 55 of that judgment recording this technical slip ought to be repaired by Certiorari Orders in CIV 1877 of 2010 in the light of fresh evidence and not new evidence that has become available. This fresh evidence is required by law to be admitted the Court of Appeal and it has not been so admitted.
1.21. For the reasons above, my legal status vis a vis the two properties of Nancy Hall is that of First Equitable Chargee irrespective of who are the new registered owners as they are taking over those two properties with proper notice of my legal position as Caveator in Caveat J614059C. Until, the matter has been settled by CIV 1877 of 2010 or through its appeal process, my new caveats shall remain.
THE TITLE TO THE ESTATE OR INTERESTS CLAIMED:
2.1. The title to the estate or interests claimed by me arises by virtue of my status as the Statutory Chargee that has now been converted into the status of an Equitable Chargee caused by the error of Master Sanderson in CIV 1775 of 2008 and the technical slip of the Court of Appeal in CACV 107 of 2008 as explained above. Both tribunals and the High Court have not decided the crucial issue and it will have to be decided in accordance with the demands of justrice. The respective new owners of the two properties have their respective property transferred to them subject to my rights as First Statutory Chargee of which they have had notice by my having alerted the Registrar of Titles about my legal position as a First Statutory Chargee which was in a state of flux and which has now settled into that of a First Equitable Chargee.
REPEALED S.244 OF LP ACT 2003 SURVIVED BY S.607 OF THE LP ACT, 2008
3.1. I have taken action under s.244 of the LP Act, 2003 to preserve my First Statutory Chargee position since the 7.2.2006 when I placed my First Caveat J614059 on the two Properties of Nancy Hall. When the LP Act, 2003 is repealed, my rights under s.244 of the former act is being “survived” by virtue of the provisions of s.607 of the LP Act, 2008. S.607 provides as follows:
“607 .Actions before the commencement day that continue to have effect
(1) This section applies to an action taken, however described, by —
(a) the Board, in relation to a person or the person’s practice certificate before the commencement day, other than an action dealt with in another section of this Part; or
(b) the Complaints Committee or the Law Complaints Officer in relation to a person whether the action is taken before or after the commencement day.
(2) The action, and any rights or entitlements the person has in relation to that action, continue to have effect under this Act subject to —
(a) any conditions stated in a document by which the action was taken in relation to the person, or in a notice given to the person about the action; and
(b) this Act.
(3) To the extent of any inconsistency among provisions applying to the action, this Act prevails.
(a) if the action, right or entitlement involves an appeal to the Supreme Court or a proceeding before the Court started before the commencement day — without limiting the power of the Supreme Court, the Court may direct how that action, right, entitlement or proceeding should be continued; or
(b) if the action, right or entitlement involves an application for review to the State Administrative Tribunal or a proceeding before the Tribunal started before the commencement day — without limiting the power of the State Administrative Tribunal, the Tribunal may direct how that action, right, entitlement or proceeding should be continued; or
(c) otherwise — a regulation made under section 637 may provide for the way the action, right or entitlement is to continue under this Act.”
This declaration is true and I know that it is an offence to make a declaration knowing that it is false in a material particular.
This declaration is made under the Oaths, Affidavits and Statutory Declarations Act, 2005
At …………………………..)
On .28.2.2011………………)
In the Presence of:………….)
)…………………………………………
………………………… … ) Signature of NICHOLAS NI KOK CHIN
Signature of Witness:
Name of Witness: ……………………….
Designation of Witness:…………………
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