Copyright in this document is reserved to the State of Western Australia
THE SUPREME COURT OF
2157 of 2011
MICHELE-MAREE GANNAWAY
and
NICOLAS NI KOK CHIN and OTHERS
SIMMONDS J
TRANSCRIPT OF PROCEEDINGS
AT PERTH
(In Chambers)
Continued from 8/8/11
MR C.P. STOKES appeared for the plaintiff.
The second defendant appeared in person.
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(s&c)
THE ASSOCIATE: Civil file 2157 of 2011, Gannaway and Chin and others.
SIMMONDS J: Yes, I'll take appearances. Mr Stokes?
STOKES, MR: If your Honour pleases, I appear for the plaintiff.
SIMMONDS J: Thank you, Mr Stokes. Mr Law, you appear for yourself.
LAW, MR: Yes.
SIMMONDS J: I take it you did not secure or did not attempt to secure legal representation.
LAW, MR: I did attempt. I tried Jackson McDonalds and Maxas - I think I pronounced it right - and I might like to say that my name is spelt M-a-u-r-i-c-e Law.
SIMMONDS J: Yes, thank you for that. Before we start I should indicate what it is that I received. Perhaps you should sit, Mr Stokes, because of course it applies to both of you.
STOKES, MR: Yes.
SIMMONDS J: For the plaintiff I received a document, Short Summary of Plaintiff Submissions, and in addition to the affidavit of Ms Gannaway of 30 June 2011 I received an affidavit of hers sworn 9 August 2011, and somewhat to my surprise I must admit in view of my programming orders, I received a further affidavit of hers sworn 12 August 2011. Obviously I may need to return to that. That is the material that I received for the plaintiff, or at least the material I have on hand. Am I missing anything, Mr Stokes?
STOKES, MR: No, you're not, your Honour.
SIMMONDS J: Very well, thank you. I appreciate, Mr Law, that of course there is material that I have received both from Mr Chin and from yourself, and you of course can only speak directly for yourself.
LAW, MR: Yes.
SIMMONDS J: So what I am saying is in part simply for the transcript, not to have you confirm anything. I will get to what it is that I believe you can confirm in a moment. I have an outline of written submissions by Nicolas Ni Kok Chin in defence dated 12 August 2011. I take it that, Mr Stokes, you received that.
STOKES, MR: I have, your Honour.
SIMMONDS J: I take it, Mr Law, you received that as well.
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LAW, MR: Sorry, I didn't. I had a mechanical problem and I was dealing with an auto electrician and I haven't received it.
SIMMONDS J: All right, so you haven't seen the outline of written submissions to which I've just referred.
LAW, MR: No, sir.
SIMMONDS J: All right. Do we have an extra copy, Madam Associate?
LAW, MR: I would like to apologise for my email this morning.
SIMMONDS J: That's all right.
LAW, MR: I had sent it but I hadn't put the capital E and the capital O and - - -
SIMMONDS J: I'm sorry, I should say we'll get to that in a moment, Mr Law.
LAW, MR: Okay.
SIMMONDS J: What we'll do, Mr Law, is that we will print off a copy of the outline of written submissions from Mr Chin. They run four unnumbered pages with 21 numbered paragraphs. I believe that that's correct. There are footnotes as well which a little confusingly perhaps are in larger font than the text, but I think it's reasonably clear what the document is. That document is being printed out right now, Mr Law, to make sure that you have a copy of it. I have also received this morning an email communication from Mr Chin that I gather was copied to you, Mr Law. You're mozza35. Is that right?
LAW, MR: Yes, sir.
SIMMONDS J: Yes, this was an email that was sent to you by Mr Chin on 12 August. It arrived with us at 12.57 pm. Do you remember receiving any such thing?
LAW, MR: Not as today, no.
SIMMONDS J: All right.
LAW, MR: I left home at - - -
SIMMONDS J: Yes, that's all right. I assume that it's possible you didn't receive it. I take it, Mr Stokes, you received it.
STOKES, MR: No, I haven't, your Honour.
SIMMONDS J: No, you did not. All right then, I'll read
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it out. It's not long. It's addressed to Maurice Frederick Law and Chris Stokes and it says this - and Landgate, I'm sorry, caveat officer:
Dear Sir, I refer to the above matter. My computer is not working at the moment. I'm using an alternative source of communication to send this document for filing and service. It is for the second defendant to serve his own set if he agrees with this set of document.
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I'm slightly confused about because it appears at the head of an email which is from you, Mr Stokes, to my associate, to mozza35 and to Nicolas Chin, Friday, August 12, 2011, 10.20 am, "attaching a further affidavit of Ms Gannaway to be filed today in support of the plaintiff's application". I gather that's the 12 August 2011 affidavit I referred to.
STOKES, MR: Yes.
SIMMONDS J: I must admit I'm a little mystified by Mr Chin's email communication but I gather what Mr Chin is saying, if I can interpret what he's saying, it is that he has left it to Mr Law to decide what the position might be of the defendants as to the 12 August affidavit. I should add that my programming orders did not allow for an affidavit from the plaintiff after midday on - I believe it was 9 August, and of course the affidavit from Ms Gannaway that Mr Chin is referring to in that email is one of 12 August, of this morning. I'm not asking you at the moment to explain anything about it.
STOKES, MR: No.
SIMMONDS J: I'm just simply noting it.
STOKES, MR: Yes. Thank you, your Honour.
SIMMONDS J: All right.
STOKES, MR: Sorry, your Honour, was anything attached to that email? Apart from the commentary you just read out?
SIMMONDS J: No. That was it. That was all that the email said.
STOKES, MR: Okay. Very good.
SIMMONDS J: I also have from Mr Law what appear to be, if I may say so, two affidavits. One is an affidavit that runs to three italicised paragraphs with a swearing set of paragraphs, if I can call them that, at the end. It's an affidavit sworn by Mr Law at Midland on 11 August 2011 before Benjamin Smith at the Midland police station. It's single page affidavit. There's also an affidavit which has a cover sheet and a set of contents, which is an affidavit in CACV 107 of 2008, an affidavit dated 15 July 2011. I'm not entirely sure whether that affidavit was meant to be an annexure to the first affidavit I referred to or has been separately filed. It probably doesn't matter.
This second affidavit, the one in CACV 107 of 2008, runs to 15 numbered paragraphs over three pages and it has in my copy of it some annexures. There's also an affidavit - this may be a third affidavit - of Maurice Frederick Law
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sworn 11 August 2011 and this one runs to nine numbered paragraphs; also sworn in front of Benjamin Smith, police officer, and it has annexures - or at least some annexures - as well. That last affidavit, the one 11 August 2011 running to nine numbered paragraphs, appears to be the subject of a document from the plaintiff dated 11 August 2011 headed Plaintiff's Schedule Of Objections To Second Defendant's Affidavit Sworn 11 August 2011. I gather that by reading the paragraph number references in that schedule of objections, which seem to me to make sense only by reference to the 11 August 2011 affidavit with the nine numbered paragraphs that I last referred to. Mr Law, am I missing anything that you had filed with the court?
LAW, MR: You're not missing anything. I did not put it in.
SIMMONDS J: Sorry, what did you not put in?
LAW, MR: Three or four pages, from memory.
SIMMONDS J: Yes. There are some annexures to the affidavit of 11 August 2011 that runs nine numbered paragraphs which appear to be missing. In particular one, MFL4, appears to be missing. Unless - I couldn't work out where I was to find MFL4 but I simply don't have it.
LAW, MR: I lost the plot a bit yesterday afternoon.
SIMMONDS J: All right. Very well. So that completes the papers that I have had provided to me for the purpose of the hearing this afternoon. It seems to me that there are two things immediately that should be addressed. The first is the affidavit of Ms Gannaway of 12 August 2011, to which, as I have said, no provision was made in the programming orders I made. Mr Chin, it seems to me, has indicated neither acceptance nor objection to it. Mr Law, do you have any difficulty with my receiving Ms Gannaway's affidavit?
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LAW, MR: No, sir.
SIMMONDS J: All right, that takes care of that. As to the plaintiff's schedule of objections to the second defendant's affidavit, I take it you would wish those dealt with now?
STOKES, MR: I would, your Honour.
SIMMONDS J: All right.
STOKES, MR: But just before I do, before you leave the recitation of the documents lodged by Mr Law, if not lodged certainly emailed to your Honour's associate, my understanding is that the two pages of our affidavit numbered 1 to 9 run on into a third page with paragraphs 10 to 15. That is all the one document.
SIMMONDS J: Yes, I'm sorry. Let me have a look. Sworn 15 July, 1 to 9. You're quite right, they do.
STOKES, MR: I think that's the way it has to be read.
SIMMONDS J: Yes. I'm sorry, let me just double-check that. Just one sec. 9, 10, 11, 12, 13, 14, 15, correct. All right. I think that's right. But however it's done, I seem to have three affidavits from Mr Law. Is that ‑ ‑ ‑
STOKES, MR: Well, there's one document that I simply don't know where it sits in the scheme of things and that is a one-page document headed Affidavit which starts, "Make an oath/affirm as follows," and has three paragraphs.
SIMMONDS J: It refers to those.
STOKES, MR: I frankly don't know where that fits into the balance of the documents. I can work out what the other documents are. If one starts with the three-page affidavit, the first page being the index where one sees "Annexure MFL1, copy of application in CACV107," I'm assuming one then goes to the affidavit of Mr Law and that appears to be that first annexure; so his affidavit in CACV107 of 2008, on my reading of the document, is annexure 1 to the affidavit he swore yesterday. Then the application in that CACV, although I couldn't find that, is annexure 3, and then the seven pages of bank statements of Mr Law is annexure 4. So that's how I have approached reading the affidavit anyway, your Honour.
SIMMONDS J: All right, let me see if I can work this out. So there is an affidavit, as I said before, running three numbered paragraphs followed by a jurat page which refers, the first paragraph, "My company, Spunter," the second paragraph "Credit limit," third paragraph, "The caveat produced." That's that one.
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Then there is the affidavit with the cover sheet. The first two pages, they are to be the cover sheet. Then there is the affidavit of - at the bottom of the second page it says, "Affidavit of Maurice Frederick Law sworn 15 July 2011."
STOKES, MR: Yes, I think that, as I read it, is part of annexure MFL1 to the 11 August affidavit, sir.
SIMMONDS J: They're both 11 August, aren't they?
STOKES, MR: Sorry, yes, you're right, with respect. Now I am confused. I think that's probably where that one fits in.
SIMMONDS J: Yes, that's where I get my count of three affidavits, because the text is different.
STOKES, MR: Yes.
SIMMONDS J: Mr Law, did you mean to file three affidavits?
LAW, MR: No, sir.
SIMMONDS J: What did you mean to file?
LAW, MR: Just some documents that I had information on. I just tried to straighten things out and I just got lost, wading knee deep.
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SIMMONDS J: All right. I made it clear what it is that I think you have filed or provided to the court. Am I right, Mr Stokes, in identifying the document I did as the one to which the schedule of objections relates, which is the one with 15 numbered paragraphs?
STOKES, MR: Yes.
SIMMONDS J: All right, good.
STOKES, MR: That was the objection.
SIMMONDS J: That will, I suspect, be important.
STOKES, MR: I think that is the lead affidavit upon which the second defendant seeks to rely in opposing this application. That is my reading of what has been filed, anyway.
SIMMONDS J: I would assume that also.
STOKES, MR: Now your Honour, what I have done in my schedule of yesterday is, in a shorthand form, identify those paragraphs to which I would submit the court ought not read into evidence. These can sometimes be sterile arguments in terms of objections, but I am concerned about much of the material in this affidavit, and those concerns are set out under the heading, "Grounds of objection" in my outline.
SIMMONDS J: Yes.
STOKES, MR: Now, to a large extent, the submissions I have made under the heading, "Grounds of objection" speak for themselves.
SIMMONDS J: I believe they do.
STOKES, MR: I think I have identified each ground of objection and I am happy to deal with any comments Mr Law might make in response to those objections. I don't think I can add a great deal. I am concerned again, with great respect, to the highly scandalous nature of much of the material; allegations about conspiracies and collusion between legal practitioners and an officer of the court. Totally inappropriate.
Totally irrelevant, firstly, in my respectful submission, but secondly, totally unsubstantiated and highly scandalous, and that scandalous material extends to the allegations being made against my client. There are some few sentences that I have identified would not be grounds for striking out, but given that the balance of the material gives no assistance at all, it is my submission that the affidavit in its entirety ought be removed from
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the court record. I am happy to address your Honour further on my outline of objections, but I understand that your Honour would have read the affidavit.
SIMMONDS J: Yes.
STOKES, MR: I don't wish to waste a great deal of the court's time on this preliminary matter, but I do consider it important to be dealt with now.
SIMMONDS J: Yes. Let me say that my difficulty with your objections at first blush, subject to what Mr Maurice Law is going to say to me, relate to your objections to paragraphs 3, 4, 6, 7, 10 and 11. I accept that those statements are conclusionary in their form. That is to say, they set out a factual conclusion without indicating where the conclusion comes from, and they make statements of what is sought to be proved without, it seems to me, indicating how it is planned to show that or direct my attention to evidence that supports that.
On the other hand, the statements are important to the second defendant as the bases upon which he says certain orders of the court which might otherwise stand in the way of the recognition of caveatable interests or a caveatable interest he claims should be set aside. It is, of course, the case that scandalous material may, in the end, be let in because of relevance.
STOKES, MR: Yes, I accept that scandalous material of itself doesn't make it objectionable, but the way in which there has been an attack on the court officer who was involved in the decision, for instance, in paragraph 3, "They arise from the falsifications of the court records by David Taylor and Registrar Powell."
SIMMONDS J: Just one moment. We have got sound interference. If anyone has got a mobile phone on, it must be switched off. Having it on aircraft mode or other is not enough. It seems silence has now broken out. Yes, Mr Stokes?
STOKES, MR: Thank you, your Honour. That paragraph is highly scandalous and it fails to identify for what purpose it is being inserted. The court order made in 2008 doesn't go to the enforceability of the caveat in these proceedings one way or the other. I fail to see any relevance of the court order of 2008 in any event and, given a lack of relevance, it is simply scandalous with no benefit or purpose. That is my difficulty.
SIMMONDS J: Yes. I have been puzzling over this. As I understand it, what Mr Maurice Law is saying is that there is a matter which brought about the continuance of caveats by Spunter, which was the result of the falsification, he says, of court records by his solicitor in collaboration
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with Registrar Powell. That matter, of course, is, on one view of Mr Chin's case, relevant to Mr Chin's case, not to Maurice Law's case.
I have myself been of a mind to take a generous view of relevance where Mr Maurice Law and Mr Chin are concerned so that if there is matter in Mr Maurice Law's affidavit relevant to Mr Chin and vice versa, an objection based on relevance strikes me as not altogether a strong one, but of course, I am simply indicating at first blush what my attitude is.
STOKES, MR: Yes, well then, if this evidence is being sought to be tendered in support of Mr Chin's caveat in some way, that would then be presumably on the basis that the decision of Master Sanderson in the Court of Appeal ‑ ‑ ‑
SIMMONDS J: And it raises difficulties of its own. I accept that, but at the point of determining whether or not to leave the affidavit material in, the fact that it is in support of an argument that may be very difficult to sustain doesn't seem to me to detract from the fact that it's relevant, as I say, at first blush.
STOKES, MR: Yes, well, I have ‑ it is in part my difficulty in understanding what it is upon which Mr Chin is seeking to justify his caveat that I take this relevance objection.
SIMMONDS J: Yes.
STOKES, MR: The court has determined there was no retention of property rights. All these allegations about falsification of records, that is ‑ ‑ ‑
SIMMONDS J: Mr Chin seems to consider that that is extremely important to his salvor argument, as he calls it. There is undoubtedly considerable difficulty with that in view of the terms of the Court of Appeals' reasons, not to mention the decision of Commissioner Sleight in 2011, in respect of which, so far as the court records seem to go, no appeal has been lodged, but at the point of considering whether the affidavit is in or not, it is rather difficult for me to rule it out on relevance grounds, and if it is in on relevance grounds, then notwithstanding what might be the unsubstantiated or unelaborated upon character of what is said, I would be loathe to simply take it out.
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STOKES, MR: If your Honour please. You have my objection, and I understand the ruling.
SIMMONDS J: That would then, it seems to me, largely relate as well to 4 although if - 4 has, I accept, difficulties of its own. Let me explain why I have difficulty with the objection to 4. It seems to me that if Spunter arguable had a caveat interest arising out of the second deed, which appears to me to be a conclusion arrived at by Jenkins J back in 2006, there is a substantial argument that could be made for Mr Maurice Law that if Spunter has such a caveatable interest so too does he.
I accept that when one reads the terms of the second deed that is not, if I may say so, absolutely clear, and I say that with very considerable circumspection because of the terms of Owen J's judgment in the Court of Appeal where it seems to me there is an elision of the position of Mr Maurice Law and Mr Spunter and the Spunter corporation under the second deed. The language of the second deed, it seems to me, makes it somewhat harder for Mr Maurice Law to make an argument that he has or could claim a caveatable interest arising under that deed than is the case for Spunter. Nonetheless, he at least has going for him the conclusion arrived at by Jenkins J.
It may also be, and again I say this with considerable circumspection, that Mr Law, and there is support for his in some of the language he has used in some of the material he has filed - support for the view that Spunter's advances were also his advances, or moneys provided by Spunter were also moneys in respect of which he could claim an interest.
There are some difficulties with an argument to that effect, but not least arising out of the complexity of the language of the second deed. Nonetheless, it may be that central to Mr Maurice Law's claims - or it may be not - is the claim that Spunter provided money not only on its own behalf but his behalf. If that's so, paragraph 4 is relevant. I can't think of any other basis on which it's relevant.
STOKES, MR: My response, if I may, to that analysis, your Honour, is that the second and third and fourth lines are an observation about the deed which indicates that Nancy Hall did - loaned moneys from Spunter Pty Ltd.
SIMMONDS J: I take it that means borrowed.
STOKES, MR: I presume so.
SIMMONDS J: There doesn't seem to be any suggestion anywhere in the evidence that she made any loans to Spunter.
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STOKES, MR: No, your Honour, but my comment there is that's a conclusion of Mr Law. The deed, whatever it
says - - -
SMITH, MR: Speaks for itself.
STOKES, MR: - - - speaks for itself.
SIMMONDS J: I agree, and there's a reference to MFL4 and that's what got me slightly puzzled because I don't have MFL4, except perhaps that that's what the bank statements that you referred me to are about, and maybe MFL4 should read MFL5. My version of the affidavit is headed MFL5 but with MFL4 crossed out.
STOKES, MR: Yes.
SIMMONDS J: If that's the case then, yes, the documents speak for themselves except for the way in which they're identified in paragraph 4 and, as I say, these are bank statements concerning loans from Spunter to Nancy Hall which may not otherwise be altogether evident from the face of the documents, so this is a narrative about the documents so to that extent they don't speak for themselves. Do you see a reference to Nancy Hall in those documents?
STOKES, MR: No, and my difficulty here, your Honour, is that again the documents I have are in 2010. One document starts 31 May 2010, another is 28 July 2006, and another is 30 June 2011, another is 29 May. I'm looking at the first date on the left at the start of each statement.
SIMMONDS J: The first date on the left.
STOKES, MR: Of the statements themselves.
SIMMONDS J: The years seem to appear, if I may say so, on the right - "This statement period starts on", "This statement period ends on".
STOKES, MR: Yes. I was going to the running narrative of the statement, the dates down the right, but in any event it matters not because they are all dates in 06, 2010 and 2011. They could not be referable to any funds advanced under a deed in November 2000 unless that is what is being asserted.
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SIMMONDS J: Unless that deed has a future advance clause. It might well do.
STOKES, MR: Well, the dates on which funds were advanced is stated on the deed themselves - well, on each page of each deed.
SIMMONDS J: Yes. I must admit too I'm having a little difficulty seeing how advances to Nancy Hall can be understood as having occurred after her death.
STOKES, MR: Exactly so, with respect.
SIMMONDS J: She died in 2008, I believe. Is that correct?
STOKES, MR: Yes, early 2008.
SIMMONDS J: Yes, all right. So that's ‑ ‑ ‑
STOKES, MR: So I maintain that objection, your Honour, for at least those three reasons.
SIMMONDS J: All right.
STOKES, MR: Your Honour then commented that you would want to hear in relation to paragraph 6. That paragraph reads:
I understood that it is not true that Anthony Prime, acting as solicitor for Mrs Audrey Frances Hall had removed the Spunter's caveat on 29 October 2008 in CIV7075 of 08 as a result of the decision of his Honour Master Sanderson which is the subject of the appeal of the first defendant in CACV107 of 2008. I am therefore not liable for the costs order of Master Sanderson who I believe was working to cover the trails of the wrongdoings of Registrar Powell -
and so on to the end of that paragraph. I simply am at a loss to see the relevance of that paragraph that would otherwise justify what is clearly scandalous material to remain.
SIMMONDS J: Yes, that one I actually have a little more difficulty with than any of the others that I have referred to for the same reason. All right, I will hear from Mr Law, with respect to paragraph 7.
STOKES, MR: Your Honour, then took me - sorry, do you want to hear Mr Law as each paragraph proceeds?
SIMMONDS J: No, I think we will probably go through the lot and then I will come back to Mr Law.
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STOKES, MR: Yes. You then identify paragraph 7 as a matter that you are concerned about the objection to. That reads:
STOKES, MR: Yes. You then identify paragraph 7 as a matter that you are concerned about the objection to. That reads:
I understand that my former solicitor was acting in cohort with Registrar Powell -
pausing there, how does he understand that? But going on
and they did falsify the court records -
a conclusionary statement without any evidence -
in CIV1131 of 06 and they together have caused the loss of my just cause of my legitimate claim against the estate of Nancy Hall which is being survived by the informal will of Nancy Hall dated 20 November 2000. The latter did not become operative until the date of Nancy Hall's death which occurred sometime on 20 January 2008.
Again his allegations of falsification:
David Taylor and Registrar Powell, through the falsifications of the court records, did not cause the loss of my claim as the beneficiary of the will of the estate of Nancy Hall, they only caused a loss of my claim arising from the default judgment of DCA2509 of 02. The proceedings under the informal will are now being considered by Judge Sweeney in DCA2509 of 2002 (my claim under the informal will).
Well, taking the first sentence, the rather long sentence that runs for some six lines, again I simply fail to see the relevance of the assertion even if it was otherwise admissible. "Was acting in cohort" - we have no evidence to support the assertion but, with respect, so what if they were? Even if they were, where does that take Mr Law in his assertion as to a caveatable interest now in relation to the Hazelmere property? What it seems to be asserting is that because of some misdeeds and wrongdoing by these parties Spunter lost a caveatable interest in the property.
SIMMONDS J: No, to be fair to him, he lost a claim to the property, "I lost my legitimate claim against the estate of Nancy Hall," and I take it that's the claim that arises under the second deed which he seems to identify as an informal will.
STOKES, MR: Yes. Well, we don't know how that conclusion is arrived at, the fact that Spunter lost its claim. There may be something in the assertion but it's not evident from the paragraph in the affidavit how that conclusion arises.
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SIMMONDS J: Yes. I can't take it any further than my first blush view that it was a repetition of earlier matter in some way or another, although it doesn't emerge at all clearly from 7, having to do with the falsification of court records showing the commencement of CIV1131 of 2006, which doesn't seem to be about the loss of the claim but, rather, by its upholding. But anyway. All right, that's 7.
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STOKES, MR: Your Honour then took me to 10.
SIMMONDS J: Yes.
STOKES, MR: My objection to 10 was the first line, and the first part of the second line was not objected to.
SIMMONDS J: No, I wouldn't have thought you would.
STOKES, MR: No, but then from there on the conclusion and assumption as to what the plaintiff did and her knowledge is unsupported by any evidence. How does this party, Mr Law, say what the plaintiff knew about the assets of the estate and what she did with them, and then the allegation in the third-last line of criminal liability: she had become criminally liable for stealing - scandalous material.
SIMMONDS J: Yes.
STOKES, MR: No supporting evidence, and no relevance, with great respect.
SIMMONDS J: It may be relevant in this sense, that if there was a question here of an alienation of property caught by Property Law Act section 89, alienation with intent to defraud, that was made at a time when the transferor was aware that the effect of that alienation would be to prevent, delay or hinder the second defendant or the first defendant or any creditor from having their just claims met, there would be a basis then for opposing a caveatable interest if one exists, which otherwise might have arisen under the second deed against the registered proprietor, Ms Gannaway, who would otherwise have the benefit of the indefeasibility principle.
10 is, I accept, a conclusionary statement and it is of a piece perhaps with a number of the other paragraphs where I have difficulty with the objection in the sense that it seems to confuse or obliterate the distinction between submission and factual statement. Paragraph 10 seems to me to be a submission which is of a piece with some other material I read but it doesn't, it seems to me, provide any evidence. All I can read paragraph 10 to be a statement of then is the belief of Mr Law, without any statement, without any indication where he gets the belief from.
STOKES, MR: You see, it's a serious allegation and if there was evidence that this party had of the plaintiff's knowledge of some matters, you know, that there were certain facts that had been brought to the plaintiff's attention upon which you could then draw a conclusion in submission, we could deal with it, if there was an assertion being made as to certain knowledge that the
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adminstratrix had at the time of transfer, for instance, to pick a particular example. It's not as if we're taking a cheap point. It's an important point if that's going to be the submission.
SIMMONDS J: It is also important however we remind ourselves - Mr Law may be forgiven for not being perhaps as sensitive to this point as we might be - when I say "we", those who have had perhaps more experience than Mr Law has had - he has had some, but more experience than he has had with proceedings of the present kind, and that is this. We are not here today concerned with resolving the question whether or not there is a caveatable interest but only whether there's an arguable case for one, and to deal with paragraph 10 whether there's an arguable case that there's the misappropriation described, assuming it's relevant in the way that I've indicated.
The difficulty that I have at first blush is the same as the one you put to me, which is that there is an assertion that there is a case to be made of the misappropriation kind but no indication of where the basis for that assertion is to be found, whether or not that basis is credible or believable or otherwise acceptable.
STOKES, MR: Yes, that's a different issue.
SIMMONDS J: That's an entirely different issue, but I accept that there needs to be some basis placed in the evidence, placed in the affidavit, for the conclusion that is expressed here. All right.
STOKES, MR: Your Honour has my submissions on 10.
SIMMONDS J: Yes.
STOKES, MR: Your Honour then expressed a concern about my objection to 11.
SIMMONDS J: Yes, I did.
STOKES, MR: The first sentence is a statement by this defendant about the relationship between the first defendant and the late Nancy Hall.
SIMMONDS J: Yes.
STOKES, MR: There's no basis set out as to how this defendant can give any of that evidence, whether he was told by Nancy Hall or whether he was told by Nicolas Chin and what he was told, if anything, about how he can say that Nicolas Chin had done work for which the deceased mother of the plaintiff had committed to pay for and has not been paid, and then you have a conclusion again that the plaintiff has been recalcitrant in refusing to pay the
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legitimate debt at the settlement of her mother's estate. Firstly, how this defendant can give that evidence is not established.
SIMMONDS J: Yes.
STOKES, MR: And it goes on in the line which has got 110K: now it is continuing, the sale to the first defendant is a statutory debtor. These are conclusions of law, again, not appropriate to be in the affidavit in any event, but also again we don't know where this defendant gets the knowledge to make that statement.
SIMMONDS J: Yes, all right.
STOKES, MR: I can't put it any higher than that. That, your Honour, was I think the only other paragraph that you sought me to address on.
SIMMONDS J: As specifically identified, yes. The objections to the other paragraphs I incline in the other direction, that is to say I'm inclined to uphold them, so I should now hear from Mr Maurice Law.
STOKES, MR: If your Honour please.
SIMMONDS J: Very well, Mr Law, the difficulty under which you labour of course is that we are concerned with the standards that apply to affidavit evidence which to be most efficiently explored in submission would require that you have an understanding of what the requirements for affidavit evidence in proceedings of this kind are. The requirements are that the affidavit evidence be just that, that is the evidence upon which a decision‑maker in the absence of anything else could properly act to arrive at a conclusion that what is sought to be proved by that evidence has been proved.
The difficulty that I have with a number of paragraphs in your affidavit, being most notably paragraph 5, paragraph 8, paragraph 9, paragraph 12, 13, 14 and 15, is that they are at most statements of what you understand to be the case without an indication of why you understand that to be the case, on what basis, or they represent conclusions simply that you are pressing on the court in the way that submissions might press these matters on the court.
I would be prepared to approach these paragraphs as submissions but not as evidence. If I approach them as submissions though I need to find the supporting evidence and if the paragraph itself is not the supporting evidence I need to find supporting evidence somewhere else. Is there anything you want to say to me about those paragraphs that I have just listed off, that is to say paragraphs 5, 8, 9 and 12 to 15.
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LAW, MR: It might take me too long to go through all of those. I have made a few notes while Mr Stokes has been talking that might keep it to a simple line or two, and I'll see if I do cover it in these points.
SIMMONDS J: All right.
LAW, MR: If I may start with what I started on, the caveatable interest to my understanding comes where I've paid money out, in this case for Ms Nancy Hall, and in the first instance Spunter kept paying the interest, not paying loan money to Nancy
SIMMONDS J: Where do I see that in the affidavit? Where in the affidavit am I told that, which paragraph?
LAW, MR: Paragraph 2 of the single-page affidavit.
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SIMMONDS J: I see. All right.
LAW, MR: That's where the supporting documents, in my thinking, makes it clear that the Citibank which is specified in the ‑ ‑ ‑
SIMMONDS J: Yes, I understand that. I think now I see where it is that you get that from. How does that relate to anything in the longer affidavit? For example, I don't see how paragraph 5 relates to it in the longer affidavit.
LAW, MR: Yes.
SIMMONDS J: I don't see how - maybe paragraph 8 relates to it. I'm not sure.
LAW, MR: No, possibly not with my rushing through it, I guess, but may not be there. The fact that these banks statements are here, they were supplied as evidence, I think, and that states that the loan originally made out for Nancy Hall was flowing through from November 2000 till 2006.
SIMMONDS J: Yes.
LAW, MR: I see no discontinuance. I had solicitors costs et cetera, et cetera. So the bank statements, with a flow from the original to when I had to convert the lower loan to a more substantial loan to keep going with the interest that I was incurring with my house et cetera.
SIMMONDS J: I'm sorry. What you are saying - and, Mr Law, you will forgive me if I say this does not emerge with any clarity at all from the papers.
LAW, MR: Okay.
SIMMONDS J: Is that sometime after 2006 you paid interest on a loan made by Citibank to Nancy Hall, where previously Spunter had been making those payments.
LAW, MR: Yes.
SIMMONDS J: All right, that much at least I think I have. That those payments were being made to keep the loan between Citibank and Nancy Hall in good standing.
LAW, MR: Yes.
SIMMONDS J: That those payments continued even after the death of Nancy Hall and they continue to this day.
LAW, MR: Well, yes, sir. I never expected that business of the loans to go on and on and on and on. I sent Nancy Hall a couple of letters and faxes which she didn't answer.
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SIMMONDS J: Mr Law, Nancy Hall died in early 2008.
LAW, MR: Yes; yes.
SIMMONDS J: So?
LAW, MR: But I stopped advancing funds to Ms Hall through from Spunter and I just had to keep the loan going and hoping that I could bring to court an action that would make her pay. I found a heck of a lot out after I stopped paying and investigations with legal work and how I say my vague legal knowledge grew. I was paying solicitors, I paid two solicitors before Nancy Hall died. They didn't prosecute ‑ ‑ ‑
SIMMONDS J: Mr Law, at the moment, if I may say so, you're giving evidence from the bar table. I need to have evidence, I need to have reference made for my purposes to what's contained in your affidavit. What I think I have got from your affidavit, affidavits plural, is this; that you made payments to keep the loan between Citibank and Nancy Hall in good standing after Spunter ceased to make those payments; that that began sometime round about 2006 or 2007 or 2008, sometime around that date and that you rely for your interest in the assets of Nancy Hall on the deed that conferred on Spunter, Maurice Hall and Cheryl Hall guarantors, a first claim on Nancy Hall's estate.
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LAW, MR: Yes.
SIMMONDS J: A deed entered into in November 2000.
LAW, MR: May I make a comment here?
SIMMONDS J: Only if it relates to your affidavit, because so far ‑ ‑ ‑
LAW, MR: No.
SIMMONDS J: - ‑ ‑ you have been able to point me to evidence in the affidavit at paragraphs 1 through to 3 of the one‑page affidavit which you have indicated can't be related to paragraph 5 of the longer affidavit, might have some relationship to paragraph 8 of that affidavit, might have some relationship to paragraph 9 of that affidavit ‑ ‑ ‑
LAW, MR: Well, that ‑ ‑ ‑
SIMMONDS J: Just one moment, Mr Law. Has no relationship I can see to paragraph 12; has no relationship I can see to paragraph 13; has no relationship I can see to paragraph 14, save, perhaps, for the second sentence; and has no relationship I can see to paragraph 15, except possibly for something in the last sentence. Yes, do you wish to say something?
LAW, MR: Well, part of it is the risk that the ‑ David Taylor lodging of the funds on 10/2/06, which were supposed to keep my caveats alive, failed, because it wasn't put in on that date. Now, we are trying to get a ruling on this where we have the proof of the receipts of the court payments from either Taylor or his employee. Now, it is rather heavy ‑ ‑ ‑
SIMMONDS J: How does that relate to your caveatable interest?
LAW, MR: Well, I had my caveats there to keep that ‑ ‑ ‑
SIMMONDS J: No, Mr Law. The caveats, on all the evidence that I have in front of me, in existence in 2006, did not include a single caveat in your name.
LAW, MR: No.
SIMMONDS J: There was caveats in Spunter's name.
LAW, MR: Yes, that's when I was working through a solicitor and I was able to have him argue my case.
SIMMONDS J: Your case or Spunter's case.
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LAW, MR: Sorry.
SIMMONDS J: Mr Law, you again may be forgiven for not realising that Spunter was a legal person in the same way that I am, you are, and Mr Stokes is.
LAW, MR: Yes.
SIMMONDS J: There is an indication in some of your papers that Spunter was simply acting as your agent or something of that character. It is not clear to me from the affidavits where I am to find the evidence that it was acting simply as your agent, rather than in its own right. In fact, if I may say so, the evidence points to the opposite conclusion. The evidence points to the conclusion that, as you have just indicated to me, Spunter at one point was making payments for Nancy Hall and then you started making payments for Nancy Hall, and that there was a change in status at that point.
LAW, MR: Well, in the deed, it does say, "Spunter Pty Ltd, with Maurice Law and Cheryl Law as guarantors." There's a tie‑in there, isn't there?
SIMMONDS J: That suggests that the parties Spunter, Maurice and Cheryl Hall (sic) are all playing different roles. They're different people with different interests, even if there are close interconnections between them. There is no indication from the second deed that Spunter is acting as your agent or Cheryl Hall's agent.
LAW, MR: Well, a little bit of the problem there, Nancy Hall made these deeds out with us and I have the handwritten notes. Now ‑ ‑ ‑
SIMMONDS J: Now you are getting me into evidence I don't have in front of me.
LAW, MR: No. I had them the other day, actually, but sure.
SIMMONDS J: The only evidence ‑ ‑ ‑
LAW, MR: I didn't think that those papers would be relative to the deal about the caveats being kept alive because basically (indistinct) think that Maurice Law money is the reason why Maurice Law took out the caveat. I was paying out the interest on the loan at this stage from 06.
SIMMONDS J: Yes, I have understood that. You have indicated to me how I can derive that from the one‑page affidavit, and I perhaps see some support for that, or some repetition of that, if I may put it that way, in paragraph 8 of your longer affidavit, and paragraph 9, to the same effect.
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I don't see it, with respect, in paragraph 12 at all, and I don't see it as emerging with any clarity ‑ there are some suggestive features ‑ in 13, 14 or 15. If I may say so, all 13, 14 and 15 seem to say at the most is, now I understand it, you have been making payments in order to keep the Citibank loan alive. Neither Nancy Hall nor her administrator have shown any willingness to reimburse you for those payments.
LAW, MR: Yes, that's correct.
SIMMONDS J: You do not refer, unless I am missing something, to any claim ‑ in those paragraphs, you do not refer to any claim you made on Nancy Hall or her administrator for those payments. You do not refer there to having claimed for those amounts and been told they would not be paid. You are referring in those paragraphs, at most, to an anticipation that you will not be paid those amounts, without explaining why you anticipate that. That is about as far as I can go on this affidavit material.
LAW, MR: Well, I think my first solicitor made the effort to ‑ ‑ ‑
SIMMONDS J: Yes, go on.
LAW, MR: Made the effort as the debt to Spunter for the payments that were paid out in lump sums, not the interest, so much, because the interest only came in when the 10/10 ‑ 10/2/02 came in, but Sorensen, that solicitor, had won the case, probably because of a default, but made the claim then in 2002, during ‑ so prior to the default judgment on 10/10/02. Now, the administrator and/or Mr Stokes has known that I have been approaching them for funds to be ‑ ‑ ‑
SIMMONDS J: Where do I see that, Mr Law? Where do I see the reference to the approaches ‑ ‑ ‑
LAW, MR: Sorry, I didn't put that in.
SIMMONDS J: And that illustrates the difficulty, if I may say so, Mr Law.
LAW, MR: Okay.
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There doesn't seem to be any statement here about approaches you made to Nancy Hall or to the administrator or to the administrator's representative such as Mr Stokes for payment of the amounts that you have said you have been paying yourself to keep the Citibank loan alive, and the caveatable interest that you have been claiming all along, the one that was filed in February 2011 if I remember it correctly, is an equitable interest as judgment creditor in the default judgment obtained on 10 October 2002, and the payments you have referred me to are payments you made on behalf of Nancy Hall well after that date. The default judgment is for an amount in 2002
You have also referred to your statutory declaration of 15 February 2011, and I'm looking here at Ms Gannaway's affidavit of 30 June 2011 and I look at pages 106 and 107 of that affidavit. Do you have that in front of you, Mr Law, the bigger affidavit?
LAW, MR: What date was that, sir?
SIMMONDS J: This is your statutory declaration of 15 February 2011 apparently lodged in support of your caveat, and it appears in Ms Gannaway's affidavit at pages 106 to 107 if I understood it correctly.
LAW, MR: "I and others then gave Mrs Hall a series of loans over a period of time. Subsequently I took an
action - - - "
SIMMONDS J: Where do I see that, I'm sorry, in the - - -
LAW, MR: Page 106.
SIMMONDS J: 106, yes. Where on page 106?
LAW, MR: At the top, number 2.
SIMMONDS J: "Subsequently I took the action" - yes.
LAW, MR: Then DT2509 in 02.
SIMMONDS J: Yes.
LAW, MR: And was awarded the default judgment of about 145,000.
SIMMONDS J: Where do I see any reference to amounts extended after 10 October 2002?
LAW, MR: That wasn't to do with Nancy
SIMMONDS J: You may have done, but your caveatable interest refers to, if I may say so, events in the form of
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advances or similar things that were captured, if I can put it that way, or recorded in a default judgment of 10 October 2002. Where do I get from your caveatable interest that there were further amounts extended after that amount by you personally and not by Spunter in respect of which you are claiming also a caveatable interest?
LAW, MR: It's only that one-page affidavit that - - -
SIMMONDS J: Yes, I see that one-page affidavit. I don't see it in your caveat and I don't see it in the statutory declaration in support. Do you see now why both Mr Stokes and I - well perhaps I most directly - have had difficulty arriving at where it is you say your caveatable interest comes from. If I can capture all I've said in the last few moments, it is that your caveatable interest in fact comes from a series of amounts that you paid to Citibank, not to Nancy Hall, to sustain a loan Citibank made to Nancy Hall which you say was covered by the charge created under the deed of November 2000, that that created a charge which, as it were, was capable of expanding to include - - -
LAW, MR: The following debt - - -
SIMMONDS J: - - - amounts lent since then. All right, I think I've understood that argument, I've understood the submission. The difficulty I have is fitting it into the caveatable interest you have claimed.
LAW, MR: Yes, sir. I'm afraid I've lacked in legal business to pinpoint that. I've just thought that the letters I've requested and the information that Nancy and I got together, and my wife actually - we made that agreement. But at the time I took her as an honest person but what I found out after wasn't really good and I've found out since there's just so much - I know Mr Stokes might be concerned about me making allegations or something. There's some wayward stuff there by Nancy Hall.
SIMMONDS J: All right, you've alleged that in your affidavit material. The difficulty for the court is moving beyond allegation to evidence. You have stated what you believe to be the case. You haven't indicated why you believe it, on what basis you believe it, but I've understood that you honestly believe it. All right, is there anything further in relation to your affidavit that you would say I should bear in mind?
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We've been working our way through the objections of the plaintiff to the contents of that affidavit. So far as paragraph 3 is concerned, I have difficulty now, in light of what you've told me, seeing how that's relevant. CACV 107 of 2008, which is what this seems to relate to, has to do with Spunter's caveats. Or, rather, with - I'm sorry, with the - indirectly with Spunter's caveats, directly with Mr Chin's claim that he was a salvor of the estate of Mrs Hall.
LAW, MR: Yes, sir.
SIMMONDS J: Yes. And that's about as far as it goes. I don't see how it relates to your caveatable interest at all.
LAW, MR: I guess I haven't made it as an affidavit but I only have relevant facts to it, and if it's not admissible, well, I let it go, slack.
SIMMONDS J: Yes. At most it seems to me it relates to Mr Chin's claim, maybe relevant to that ‑ ‑ ‑
LAW, MR: Well, it's ‑ ‑ ‑
SIMMONDS J: It's relevance to your claim is not evident.
LAW, MR: Yes. Yes. You see, one of the points I have wanted to bring out in that instance is that I applied to the courts to join Ms Gannaway in the appeal against Jenkins' decision to give the land to Audrey Hall. Once I joined - once I applied, yes, it was defeated but ‑ ‑ ‑
SIMMONDS J: That wasn't CACV 107 of 2008, was it?
LAW, MR: No, I'm sorry. It's 53 of 07. Got the numbers mixed, I'm sorry.
SIMMONDS J: Paragraph 3 relates to CACV 107 of 2008. That's what we were focusing on. All right. I think I've heard what you have had to say about paragraph 3. Paragraph 4 I now understand the purpose of and the way it relates to amounts that you say you've paid, for whatever relevance that might have to your caveatable interest, which you say is a strong relevance. As to paragraph 5, here's where we get Jenkins J's 2006 determination - not her 2007 one - where, again, it's relationship to your caveatable interest as opposed to Mr Chin's is not apparent to me.
It seems to be relevant to Mr Chin's caveatable interest claim. His caveatable interest claim seems to, if I may say so, reduce to this: I saved the estate of Mrs Hall from the interest of Spunter, save for the fact that as a result of what you say is falsification of
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evidence, those caveats in fact continued and they continued because - or purportedly continued because it was made to appear on the court records that they had been properly filed so as to meet the deadlines called for by Jenkins J's orders.
LAW, MR: Yes, sir.
SIMMONDS J: That has been extensively dealt with in the Court of Appeal decision but its bearing on your caveatable interest escapes me.
LAW, MR: Right.
SIMMONDS J: Can you illuminate me on that?
LAW, MR: I'd only wiffle (sic) on, I guess.
SIMMONDS J: All right. So far as paragraph 6 is concerned, we get to Audrey Hall's action. There's another reference to CACV 107 of 2008 ‑ ‑ ‑
LAW, MR: Yes.
SIMMONDS J: Which is, again, difficult to follow. It seems to me ‑ ‑ ‑
LAW, MR: I think Mr Chin has still got an action going on that.
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SIMMONDS J: Yes. All right, I understand. I think I understand that but again, its relationship to your caveatable interest is not apparent to me now. Paragraph 7 is difficult to follow. It may be that it relates to what you say were payments that you made on behalf of Mrs Hall to keep the Citibank loan in good standing, but it doesn't emerge with any clarity from that paragraph.
LAW, MR: I suppose four years, I would have thought that the costs that I was paying out might have finalised, to have won a case against Mrs Hall through the proof ‑ ‑ ‑
SIMMONDS J: In any event, what you're saying is that amounts that you paid subsequent to 2002, which you say are covered by the - you referred to an informal will of 20 November 2000. The deed under which the first charge arose I thought was earlier in November than that.
LAW, MR: Yes, an agreement. No. Yes, that was the end of October if I remember rightly. That was made by a business associate that Nancy Hall had brought in to pursue her legal case that she had with about a fire from Kalgoorlie
SIMMONDS J: The Court of Appeal refers to a deed dated 4 November 2000.
LAW, MR: Yes, that's the common deed where Mrs Hall gives me first call on the estate.
SIMMONDS J: More correctly, using the language of the deed, gives Spunter (Maurice Law and Cheryl Law, guarantors) a first charge.
LAW, MR: Yes.
SIMMONDS J: That's what it says.
LAW, MR: Yes.
SIMMONDS J: The Court of Appeal judgment refers to the Laws and Spunter having first call on the properties. I'm reading from paragraph 7 of (2009) WASCA 216 which is at page 68 of Ms Gannaway's affidavit, but what am I to make of the reference to the informal will of Nancy Hall dated 20 November 2000? What document is that?
LAW, MR: It's the deed.
SIMMONDS J: The deed of 4 November 2000?
LAW, MR: Yes, sir.
SIMMONDS J: The same document?
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LAW, MR: Yes.
SIMMONDS J: Despite the fact you have given it a different date.
LAW, MR: I think it's - well, not all the documents were made on the first day. We had Mrs Hall's signature and signing that deed by one my wife, myself and a businessman in the area of Herne Hill, so that's where they witnessed her give me a signed document that would give me a first call.
SIMMONDS J: Yes. Okay.
LAW, MR: I didn't think any of us would think that Nancy Hall would die.
SIMMONDS J: Yes, all right. I understand. I think I understand that but what you are telling me is that the document referred to by the Court of Appeal as a document executed on 4 November 2000 is the same document as the one you call the informal will of Nancy Hall dated 20 November 2000 in paragraph 7 of your longer affidavit. Correct?
LAW, MR: Yes, sir.
SIMMONDS J: All right. Thank you. That's what I was seeking to find out. And having understood that, I'm now at a loss to see the relevance of paragraph 7 to the caveatable interest you claim, except perhaps to see why it is that you have emphasised amounts you have expended since the default judgment; because you appear to refer there to the loss of a claim arising from the default judgment and what you appear to be saying is that there are amounts other than the amounts referred to in the default judgment which are owing to you. All right, I think I understand how paragraph 7 is relevant to the claim you are making.
Paragraph 8 doesn't, if I may say so, take me anywhere. I'm assuming you are referring there to something Sleight C said in the course of the hearing in CIV 1877 of 2010.
LAW, MR: He gave some direction, yes.
SIMMONDS J: Just one moment. We have got a sound problem again.
LAW, MR: It's not me. It is me.
SIMMONDS J: All right, we don't have it any more.
LAW, MR: Good.
SIMMONDS J: How does paragraph 8 relate to your caveatable interest?
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LAW, MR: I suppose I'm making a claim on the estate which I am now able to do now that Nancy
SIMMONDS J: Yes, I ‑ ‑ ‑
LAW, MR: See, there are two phases of the claim.
SIMMONDS J: Yes.
LAW, MR: One while Nancy
SIMMONDS J: Yes.
LAW, MR: I now have the difficulty of - since she died, that I have the first claim on the estate. Is that a caveatable interest? If you don't think that the bank statements proving that I kept money flowing to keep the loan alive to save me defaulting and ‑ ‑ ‑
SIMMONDS J: To put it bluntly, Mr Law, what Commissioner Sleight believed, that isn't expressed in any opinion he has provided, doesn't, as it were, represent proof that you have caveatable interest.
LAW, MR: No.
SIMMONDS J: All it simply indicates is that he has recognised that if you wish, you may seek to bring a separate action. He hasn't indicated, and you haven't said that he has indicated, whether he thinks any such action has a basis and, if so, what that basis is. He simply said ‑ ‑ ‑
LAW, MR: Yes, sir, I see that now.
SIMMONDS J: All right. Paragraph 9; I must admit that it says you have an interest, that you have seen certain barriers to that interest and that they should be removed. That doesn't seem to me to be a statement of fact, Mr Law. It seems to be a submission.
LAW, MR: Yes.
SIMMONDS J: All right. Paragraph 10 says:
The plaintiff is being recalcitrant -
that is, Ms Gannaway has been recalcitrant -
in refusing to pay the legitimate debt of the salvor of her mother's estate.
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3.59 I must admit when I first read that I understood that as a reference to the fact that the position being taken in relation to Nancy Hall's estate, so far as the claim by Mr Chin the subject of the appeal to the Court of Appeal in CACV 107 of 2008, was that there was no property interest Mr Chin had in the estate for the reasons given by the Court of Appeal.
It may be that it goes further than that, it goes to say that the estate of Nancy Hall has been refusing to pay Mr Chin any amount of money. It goes beyond not recognising a property interest but refusing to pay Mr Chin's claimed costs. What has that got to do with your caveatable interest?
LAW, MR: I don't know if he was sort of bringing into parallel the fact I was making a claim against the estate and the fact that Mr Prime - it might have been before Registrar Powell - set aside some 20,000 and when Mount Lawley - a third of the estate of Nancy Hall, that that 20,000 should have been litigated prior to or after the Mount Lawley property was sold, and there has been no recognition of us receiving any benefit from that sale.
SIMMONDS J: Where do I see that in your affidavit?
LAW, MR: You haven't, sir. I'm sorry, it's not in - it's a fact. That was in an action before somebody. I don't remember who it was. I haven't got a brain as a solicitor does and I just know that as a fact.
SIMMONDS J: I certainly accept - I have enough material to cause me to accept that there is a dispute between the interests associated with the estate of Nancy Hall and the interests associated with Mr Chin about whether the estate of Nancy Hall owes Mr Chin anything and, if so, in what amount. There's a dispute.
I don't have, unless you can point me to evidence, any evidence that if the estate of Nancy Hall loses in that dispute, if it's determined subsequently by whatever body is responsible for determining this, that the estate of Nancy Hall owes Mr Chin money, that the estate of Nancy Hall is incapable of paying it.
LAW, MR: It's not my baby.
SIMMONDS J: No, but I don't see any evidence here.
LAW, MR: No. That's right.
SIMMONDS J: No. All right. I think I understand that. On that basis then how is the fact that there is a dispute between the estate of Nancy Hall and Mr Chin relevant to whether you have a caveatable interest?
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LAW, MR: I guess I don't really have a lot of weight for me on that statement.
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SIMMONDS J: All right.
LAW, MR: I'm just looking at what the administrator has been doing, ignoring the creditors, and I just popped that in. I am not, I suppose, 100 per cent a good lawyer. I don't think I've had a good lawyer yet.
SIMMONDS J: Yes, all right. Paragraph 12 seems, at most, to be relevant to Mr Chin, not to your caveatable interest.
LAW, MR: That's the first defendant.
SIMMONDS J: Yes, that's right. Paragraph 13, as I have indicated, seems to me to be irrelevant to your caveatable interest.
LAW, MR: Yes, I think so.
SIMMONDS J: Paragraph 14 is a submission, I believe, and its relevance to your caveatable interest has now, it seems to me, largely receded, for me.
LAW, MR: Yes. I think we are just making a point of comment.
SIMMONDS J: Yes.
LAW, MR: Like the deed ‑ ‑ ‑
SIMMONDS J: In 15, the difficulty there is, you have stated ‑ and this is the closest you get to making this statement, I think ‑ that there is nothing left in the estate for Ms Gannaway.
LAW, MR: Yes.
SIMMONDS J: How do you know that? Where is the basis for that shown in the affidavit?
LAW, MR: Well, during the trial before Registrar Hewitt of April 2010, Ms Gannaway testified that the estate was just about bankrupt, yet a month ‑ ‑ ‑
SIMMONDS J: Where do I see that on the affidavit?
LAW, MR: You don't. It's my history for my last solicitor, but you are asking about a statement where you think, thought, or understood that the estate was supposed to be bankrupt in April of 2010.
STOKES, MR: I object to this evidence from the bar table, your Honour.
SIMMONDS J: Yes, I think that unfortunately, Mr Law, that is the problem. The statement in 15 doesn't have ‑ is a
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bold statement, the meaning of which is not altogether straightforward and extracted, but I have indicated what I could possibly extract from it, and it is not clear to me where that comes from; that is, where it is that you get the conclusion that, as you have most recently put it, the estate of Nancy Hall is insolvent.
LAW, MR: That's right. That is a statement in the court.
SIMMONDS J: Ms Gannaway was made the administrator of the estate and the estate at that point was solvent. There is no indication it was insolvent, no indication in any other material I have seen that it is insolvent or would be made insolvent by this sale which, after all, is going to generate consideration in any event.
LAW, MR: Sir, Registrar Hewitt, in listening to Mrs Gannaway, stated that he supplied her with the thought that possibly, the estate is bankrupt, and she agreed. Now, we find out ‑ ‑ ‑
SIMMONDS J: Where do I see that in the evidence?
LAW, MR: Not here.
SIMMONDS J: Now, that is a fairly powerful claim, but it's not in evidence, at least, not in the affidavit evidence.
LAW, MR: No.
SIMMONDS J: The basis for that exchange between Registrar Hewitt and Mrs Gannaway would, of course, require exploration; what was meant by the parties to that exchange by what each of them said to one another, let alone the question whether whatever they said about the state of affairs at that point continued to apply at this one. All right, I think I have understood all of that.
LAW, MR: Right. Well, none of this is what you call evidence, as by a stat dec or an affidavit, so I'm only making comments. As is my evidence that I haven't sworn is, not knowing what I should have picked up, so I guess the comments I'm going to make here, I only reiterate the bank statements, that I have put money into keeping this house of mine on the map, so it is a continuation of the loan, so I just feel that is the caveatable interest that I can get standing. I wasn't pushing the Spunter bit, because, although the company is still alive ‑ ‑ ‑
SIMMONDS J: All right. I think I have got all of that. Anything further you wish to say?
LAW, MR: No, I've just got that as ‑ ‑ ‑
SIMMONDS J: All right, thank you, Mr Law.
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LAW, MR: Thank you.
SIMMONDS J: Mr Stokes?
STOKES, MR: Not in reply to the submissions I have previously made in relation to those paragraphs of the affidavit I submit should be struck out, which I what I understood your Honour's interchange with Mr Law related to.
SIMMONDS J: Yes. Now, I had asked Mr Law to help me understand his affidavit, because both of us, you and I, had had exchanges about what this affidavit meant, and of course, it was drawn without professional assistance, so there may perhaps be particular barriers to understanding. Mr Law has explained what it meant. If I can encapsulate all of that, it seems to me that what he has explained is, in my view, sufficient to sustain paragraphs 4, 7, and 10. The weight of them is altogether a different matter.
So far as the other paragraphs are concerned, it seems to me that what he has said either has not persuaded me that, against the initial view I have formed ‑ or has not assisted me in coming to a view that they should be sustained against your objection or have confirmed that there is a basis for your objection in relevance which would be sufficient to call for the striking out of the relevant paragraphs. My concern with respect to 15 is that that is the paragraph in which Mr Law makes a claim that there are reasons, not spelled out, he has to believe that the estate of Mrs Hall is, to use the most recent language he has employed, insolvent.
STOKES, MR: Well, that is his argument without any foundation.
HIS HONOUR: Yes, all right. What you have told me is that there is nothing in any other evidence before the court which would be relevant one way or the other to that claim of his, save in this respect, that there is nothing in the evidence before the court to suggest that before the transfer of the Hazelmere property, the estate of Nancy Hall was not in a position to meet all just claims on it. Nor is there anything in the evidence after a notional transfer of the Hazelmere property pursuant to the agreement arrived at between Mrs Gannaway and the purchaser which would change that view. That is to say that the estate of Nancy Hall is in a position to meet all just claims made upon it.
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STOKES, MR: I think your Honour prefaced that analysis with "there is nothing in the evidence".
SIMMONDS J: That's right.
STOKES, MR: Yes, there is nothing in the evidence that goes to that issue one way or the other.
SIMMONDS J: Yes, all right.
STOKES, MR: Thank you, your Honour.
SIMMONDS J: Thank you. There has been lengthy argument. I hope that it will assist in the consideration of the balance of the claims or the balance of the argument to take place today in relation to the acceptance of the longer of the three affidavits that are before me from Mr Maurice Law. In view of the arguments that I have heard, I would sustain the objections to paragraphs 3, 5, 6, 8, 9 and 10 through 15 on the grounds for which those objections were made.
Accordingly, that takes me then to the substantive argument, if I can put it that way. It seems to me the way this substantive argument should be approached is this. Mr Maurice Law has the burden of showing me in terms of section 138 of the Transfer of Land Act to which I now need to make direct reference - show me cause why his affidavit should not be removed, and the same burden falls on Mr Chin. Mr Chin is not present here today but has provided written submissions. Those written submissions are ones which Mr Stokes can respond to in due course.
Mr Law is here today. It's now for Mr Law to make his submissions representing cause why such caveat should not be removed. That in the normal course of things requires that the caveator, Mr Law, shows an arguable case for the caveatable interest he has claimed and that if there is such a caveatable interest that the balance of convenience favours retention of the caveat.
The normal approach that the courts follow is if a caveatable interest has been shown that the caveat would normally be preserved, although orders might be appropriate in a suitable case that would call for the removal of the caveat but substitution for it in some form or another. There may also be a requirement in any event for an undertaking by the caveator to protect the registered proprietor from loss in the event that an arguable case that the caveator has successfully shown cannot finally be established and that when the full argument does occur the caveator's case fails. All right, Mr Law, what would you say to me as cause why your caveat should not be removed?
LAW, MR: I've spent interest out for 10 years besides the
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initial funds advanced to Nancy Hall, which I have official receipts, statements, affidavits from the people whom I had paid money to for I say work on the Hazelmere property and the salvor, I would put the word, to a friend of Nancy Hall's to save her losing the properties - property, Hazelmere - plus the solicitors that worked for Nancy to establish the sale of the hotel, various other people, as paid out to assist her in her business dealings, and then she's going to trash me.
I have a will and that should put me in place above the administrator - I thought that was more an official piece of business - and for Michele Gannaway to treat the estate and pay the accounts that were due.
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I am not the only one. Mr Chin is not the only one. So, you know, there's evidence. I have evidence, statements of where the money was paid, given to, loaned, whatever you like to call it, and I just did the right thing to try and help a lady but, you know, that's a bit of a poor show when you do something to help people. She was going to lose Hazelmere and I stopped that happening, and now she's treated me as dirt.
I say I've got a caveatable interest - with the handwritten notes that I have showing that it was Nancy Hall that wrote the deed out with our assistance, but one of the faults was that she said, "No, don't go to a solicitor," and I took her on her word.
SIMMONDS J: Yes, Mr Stokes?
STOKES, MR: Thank you, your Honour. Your Honour has the plaintiff's written outline I think you identified at the start of the hearing, upon which we would rely in support of the principles that are to apply in relation to determination of whether the second defendant ought be granted an extension of the caveat.
The start point is, as it always must be, the caveat lodged by the second defendant. Your Honour has identified that caveat which appears at page 104 of Ms Gannaway's first affidavit. The estate or interest claimed is an equitable interest as judgment creditor in the default judgment obtained on 10 October 2002 in District Court action 2509 of 02 before Judge Groves of the District Court of Western Australia.
It's supported by a statutory declaration dated 15 February 2011 and that declaration appears at page 106 and following. It's clear, your Honour, from both the caveat and the statutory declaration that the sole basis upon which Mr Law seeks to claim a caveatable interest in the estate is the default judgment obtained in 2002.
That default judgment, your Honour, is, in Mr Law's own evidence, based on money expended only by Spunter Pty Ltd. I would take your Honour to Mr Law's affidavit that he filed in the District Court proceedings, commencing at page 129 of Ms Gannaway's first affidavit and at page 131 of the affidavit which is paragraph 9 of Mr Law's affidavit. He says this in relation to that judgment debt:
There is no question of a liability of Nancy Cloonan Hall, deceased, owing any further sums of the judgment debt of 144,000 to either the first plaintiff or his wife Cheryl Law who had previously been the second plaintiff and the corporation, second plaintiff, being the third plaintiff.
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In other words, what Mr Law is deposing is that none
In other words, what Mr Law is deposing is that none
of the moneys the subject of the judgment debt were advanced by himself or his wife, only by the company. That was his position in the District Court proceedings; that is his evidence. That of course is the basis upon which his statutory declaration in support of the caveat has also been framed.
If that is the case, the Spunter right has now been determined in previous proceedings as having been set aside and that is not the caveatable interest that the court is considering today.
SIMMONDS J: I understand the latter. The former I would disagree with. Let me explain why. There has been no determination yet whether or not Spunter had a caveatable interest. There has been a determination that whatever interest Spunter may or may not have had, it was inferior to a registered first mortgage held by Audrey Hall.
STOKES, MR: Yes; yes.
SIMMONDS J: There is no evidence that Audrey Hall exercised her power of sale so as to extinguish any caveatable interest - any caveatable interest - that Spunter had. It may be, as Mr Hall (sic) has been anxious to tell me, that there is a proprietary interest that arose under what is called the informal will, what the Court of Appeal calls the second deed, what Jenkins J called the deed of November 2002 and I think in my judgment in these proceedings or in related proceedings I called the deed of November 2002.
STOKES, MR: Yes.
SIMMONDS J: There was under that deed a facility for continuing extensions of credit for which Nancy Hall undertook responsibility, not only to Spunter but also to Maurice and Cheryl Law. It seems to me that the caveat, the Maurice Law caveat, does not indicate any advance or other credit or obligation assumed by Nancy Hall after the date of the default judgment; that seems to be quite clear from the face of the caveat and does not seem to be made less clear or contradicted by the statutory declaration.
Mr Law has spent a large part of the discussion I had with him concerning the paragraphs in his affidavit explaining that in fact the caveat or the caveatable interest is one that arose under that deed but was not limited to the amounts, or indeed may not even have related to the amounts for which the default judgment was given but other amounts.
That poses two questions. First, if the statement of caveatable interest is in the form that I have indicated and I think it fairly clearly is, is there any reason why
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this court could not amend the caveat so as to clarify the relevant provision? Secondly, if any such amendment might be made, would the caveatable interest so recognised be one capable of being opposed to Ms Gannaway in her own right? Ms Gannaway is after all the registered proprietor in her own right, having received a transfer from herself as administrator of the estate.
The matter of whether she is vulnerable to a claim by Mr Law might seem to turn on the application to her of the indefeasibility principle. The indefeasibility principle is of course vulnerable to two classes of exceptions; one is fraud and the other is in personam exception. It is not fraud for a person to make or take a transfer, knowing that there is someone else out there who claims an unregistered interest in the property.
It's not apparent to me from the evidence that Ms Gannaway in her capacity as administrator of Nancy Hall's estate was aware at the time she transferred to herself in her own right that Maurice Law had a claim of the kind he is now suggesting the caveatable interest protects or the caveat protects.
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In any event, if she was aware of it, it's not clear to me that that of itself is fraud, that she went ahead and made the transfer that she did. That in a sense relates to fraud. There's another possibility, and one that I referred to during argument. The Property Law Act section 89 says that an "alienation with an intent to defraud creditors is voidable at the option of a creditor prejudiced," and that is subject to a showing that the alienation was for valuable consideration and good faith, and it's a very rough paraphrase of section 89.
The High Court very recently in Marcolongo, as it happens, has indicated that where a provision like section 89 applies that that creates an in personam remedy which will overcome the indefeasibility principle. Is there anything that you would say to me with respect to the amendment point and with respect to the indefeasibility point?
STOKES, MR: I've got something to say to you in relation to the amendment point, your Honour.
SIMMONDS J: All right.
STOKES, MR: This matter was considered very recently by your brother judge Corboy J in the decision of Como
SIMMONDS J: I'm familiar with that decision.
STOKES, MR: Sorry, your Honour?
SIMMONDS J: I'm familiar with it.
STOKES, MR: You are familiar with it, your Honour. What I was going to take you to in particular was to paragraphs 95 and following.
SIMMONDS J: Yes.
STOKES, MR: And in particular paragraph 101 and his quote of Le Miere J's ‑ ‑ ‑
SIMMONDS J: From Goh.
STOKES, MR: Yes. Palazzo Homes. We would rely on those principles to say that any such amendment of the caveat of the kind that your Honour has discussed with me goes certainly beyond what the statutory declaration - that sort of amendment cannot be found or gleaned from the statutory declaration. It is an amendment of an entirely different claim.
SIMMONDS J: Except for this: that it stems, as the claim in the caveatable interest does, from the November 2002
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deed and its first charge or first claim - actually, first claim is the language used. First claim language. I take it what you're putting to me is though that it is a different first claim from the one asserted. The first claim is in respect of amounts extended - it can be no later than the date of the default judgment. Let alone by whom, for what purpose.
If there is a caveatable interest arising in respect of that, it is a different caveatable interest. It's not one that's by way of clarification, elaboration or similar, as Le Miere J refers to it in Goh and is adopted by Corboy J in Como
STOKES, MR: Yes.
SIMMONDS J: Does that encapsulate it?
STOKES, MR: That certainly encapsulates what my submission was going to be and in fact what is supported by Como
SIMMONDS J: In case it's important, is it necessary for me to think about whether a credit arrangement with a future advance clause creates a series of first claims or a single claim that, as it were, swells as new advances are made? Does that need to detain me?
STOKES, MR: I don't think it does. The difficulty I have with that, the nature of that claim, is going back to the words of the deed. We start - your Honour has gone down this path of discussion on the basis that there is some argument that Mr and Mrs Law in their own right may have a right to what's described in the deed as a ‑ ‑ ‑
SIMMONDS J: First claim.
STOKES, MR: First call.
SIMMONDS J: First call. I'm sorry. You're quite right, first call.
STOKES, MR: Yes, on the estate. Whatever that means. Your Honour identified in an exchange with Mr Law that it's an ambiguous description of the nature of the charge because, in my submission, the reading is "Spunter Pty Ltd shall have a first call on my estate" and then in brackets the words "Maurice and Cheryl Law guarantors". It doesn't, on one reading of that clause, give rise to a chargeable claim by Maurice and Cheryl Law to the estate. The chargeable claim, in respect of whatever sums may be held to be charge, rests with Spunter Pty Ltd. Which is
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consistent, in my submission, with what Mr Law has himself advanced in the District Court proceedings and in the affidavit that I took your Honour to earlier.
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SIMMONDS J: If I am against you on that or, more to the point, if I were to say that it may be there is an arguable case - because it seems to me that it turns on some fairly difficult questions of construction of the deed. If I were against you on that point, what would you say to me about the relevance, if any, of the difference between a mortgage or a claim or a call that, as it were, swells to accommodate new liabilities versus a series of such claims, a series of such calls, with a new first call, as it were, made with each succeeding obligation?
STOKES, MR: As each subsequent advance is made, presumably?
SIMMONDS J: Indeed.
STOKES, MR: I think the default judgment stands on its own. I don't think the default judgment would necessarily be a bar to any advances made after that.
SIMMONDS J: That's true.
STOKES, MR: Yes, I don't think we have a merger of any claims under the deed with the default judgment.
SIMMONDS J: No.
LAW, MR: No.
STOKES, MR: Although having said that, we don't actually have before this court the writ of summons ‑ ‑ ‑
SIMMONDS J: No.
STOKES, MR: ‑ ‑ ‑ that identifies what facts were determined by the entry of the default judgment to have been found in favour of the Laws and Spunter Pty Ltd.
SIMMONDS J: All right. Let's say that it's arguable it does not work a merger.
STOKES, MR: I still fail to see how Maurice Law in his own right would have a right to a caveatable interest in respect of funds that he advances after 2002 to Nancy Hall; and I'm not sure if that's Mr Law's potential claim, that he advanced personally funds to Nancy Hall.
SIMMONDS J: No, I don't think it is. I think this may go to answer my question. Mr Law's claim is, "I didn't advance money to Nancy Hall but I advanced money on her behalf to keep in good standing a loan arrangement between herself and Citibank and note the way I am described in the November 2002 deed, guarantor. I did in fact exactly what a guarantor would do; that is to say, because I guaranteed a loan by Citibank to Nancy
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from the judgment of her Honour Jenkins J in 2006.
"Because I did what a guarantor would do, I, whether by reason of the rights of a guarantor or by reason of direct claim under the deed, succeeded to, in effect, the position for which the deed provided.
In claiming as guarantor, however - actually I should say Mr Law is not making that claim. Mr Law is making the claim, "Under the deed it was contemplated I would do exactly what I did and I would have first call in respect of what I did." Now the solution starts to come into view. "I am not saying that I made any advances to Citibank or anyone else under the agreement before the default judgment and indeed for some years afterwards I didn't make any such advances; however, at a later point after Spunter had stopped, I took up the burden and at that point," Mr Law contends, "I had an interest."
If that's the case, I think your answer to my original question is, "It doesn't matter, your Honour, whether or not a future advance clause swells a first claim or not. There's a distinction between Spunker's first call and Law's first call. Law's first call, whatever it was, could not have arisen until subsequently to the Spunter first call, subsequently to the default judgment and by reason of matters other than ones relating to how the Spunter first call arose."
STOKES, MR: Yes.
SIMMONDS J: The Spunter first call arose because of loans Spunter made or payments Spunter made to Citibank or otherwise. What am I to make though of the fact that the default judgment is apparently in favour of not only Spunter but also the Laws?
STOKES, MR: There is some difficulty in making anything of that default judgment, which was one of the difficulties Registrar Hewitt had.
SIMMONDS J: I put that aside.
STOKES, MR: Yes. To be honest with your Honour, I have some difficulty in relation to that. I cannot understand how that default judgment takes us anywhere, but that is the basis upon which Mr Law is claiming his caveatable interest, as I understand it.
Can I just take your Honour back one moment. In your exchange with Mr Law and then just now, I think your Honour's understanding, as I see it, is that the loan was taken out by Nancy Hall with Citibank which Spunter was meeting the interest payments on and then Mr Law began to meet the interest payments.
SIMMONDS J: Yes, that was my understanding.
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STOKES, MR: Yes. With respect, I don't think that is the position.
SIMMONDS J: All right.
STOKES, MR: When you go to that one-page affidavit of Mr Law, the loan was taken out by Spunter from Citibank - in paragraph 1.
SIMMONDS J: Sorry. Let me go there.
STOKES, MR: Yes.
SIMMONDS J: Yes?
STOKES, MR: It's a loan by Spunter from Citibank to finance litigation for Nancy Hall.
SIMMONDS J: I see, yes.
STOKES, MR: And then in paragraph 2, the credit limit was unable to be extended so a new line of credit with the ANZ equity manager in the name of Maurice Law was formed to keep up with the payment of interest and legal fees.
I am not quite sure what that's saying. As I read it, first Spunter had the loan and then when Spunter got into difficulties in meeting its payment obligations, ANZ negotiated with Mr Hall (sic) for him to be personally responsible for the loan, presumably taking out a new facility and discharging the previous facility to Spunter.
SIMMONDS J: Yes.
STOKES, MR: But that is not Mr Law or Spunter meeting interest payments of a loan Citibank has advanced to Nancy Hall.
SIMMONDS J: Right.
STOKES, MR: That puts whatever claim Mr Law may have against the estate in a different perspective because now what he is saying is Spunter took out a loan, it advanced the money to Nancy Hall - this is its case: sometime later when Spunter couldn't meet the repayments on that loan, I took out the loan and because I took out the loan and had to make those payments on a loan that I took over from Spunter, that becomes a liability of the estate as well.
So there was never a direct link between Nancy Hall and the Citibank loan, as I read Mr Law's case.
SIMMONDS J: Yes, and that makes some sense in terms of what Jenkins J said in her 2006 judgment.
STOKES, MR: So I would have some difficulty in seeing how Mr Law could frame a claim based on the 2000 deed to
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support those payments, but as I said in relation to my reliance on Como
SIMMONDS J: Yes. All right.
STOKES, MR: Your Honour, we filed the affidavit of Ms Gannaway this morning, primarily to go to the balance of convenience issue. You have in my written submissions, and your Honour will of course be fully familiar with them, the relevant principles in relation to balance of convenience.
Ms Gannaway deposes to both the fact of settlement having been fixed, the date of settlement having been fixed two months from the date of the offer and acceptance and the need to settle for the purpose of discharging outstanding loans to Police and Nurses Credit Society.
SIMMONDS J: Yes.
STOKES, MR: You have the absence of any undertaking as to damages by Mr Law and the absence of any evidence that he would be capable of meeting any undertaking as to damages, were it to be proffered. So really it's for all the reasons outlined in the written outline and advanced in argument with your Honour this afternoon that we would say there is no basis upon which Mr Law has shown that the caveat ought be extended.
At the conclusion of the affidavit material, there is no real affidavit evidence to sustain the claim. We have had an interesting discussion in determining what possible claim Mr Law may possibly have, based on evidence if and when it was ever to be formulated in an appropriate form.
The other issue that goes to balance of convenience is the lengthy period of time that he has had in which to pursue these matters and has not done so.
Just on that point. I was observing in the judgment of the Court of Appeal, it's at page 69 of the first Gannaway affidavit, in paragraph 17 Owen J noted that on 10 February 2006 the Laws and Spunter commenced CIV 1131 of 06 in the Supreme Court and issued a writ against Nancy Hall claiming, among other things, a declaration that the second deed created an equitable charge.
The commencement of the action fulfilled the condition that Jenkins J had imposed on the extension of the caveats, and on 14 March 06 Nancy
There has been no attempt therefore in the five years since those proceedings were apparently commenced, to resolve this matter.
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SIMMONDS J: Yes.
STOKES, MR: And now we're having it being raised yet again in circumstances where we have had no opportunity to actually have those matters aired in the appropriate forum.
SIMMONDS J: Yes.
STOKES, MR: We would say for all those reasons Mr Law's caveat ought be removed by court order. I don't know if your Honour wants to hear from me in relation to my response to what I refer to, respectfully, as the Chin caveat. You have my written submissions that go to that issue.
In simplistic terms, we would say that the matters that Mr Chin is again seeking to raise on this caveat are the identical matters that both Master Sanderson and the Court of Appeal concluded did not give rise to a caveatable Interest. Even accepting that the notion of being a salvor and preserving the assets of an estate do give rise to a caveatable interest, they said nothing he did did preserve the assets of Ms Hall.
That was found conclusively against Mr Chin and I did last night read Mr Chin's further written submissions but, with great respect, I didn't find that they took the matter any further.
SIMMONDS J: Yes.
STOKES, MR: So for those reasons we would also seek orders in terms of the Chin caveat, your Honour.
SIMMONDS J: All right. Just one moment. My associate has just informed me that she has received submissions from Mr Chin which he had meant to attach to his most recent communication. I believe they are being printed out. I haven't seen what date they bear, what time they bear or anything of that kind.
I have seen Mr Chin's submissions, earlier ones that were submitted within the time frame provided for in my programming order. I simply don't know what it is that has just now been produced. What I am going to suggest then is this, and I realise the hour is already late. However, I am sensitive to what you had said on a previous occasion; namely, that it was necessary from the standpoint of the registered proprietor that the matter be resolved if at all possible today.
STOKES, MR: Yes.
SIMMONDS J: Accordingly, there will be a brief adjournment to permit the submissions from Mr Chin to be made available to you and to Mr Law. There may or may not
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be some further matters arising so far as you're concerned, possibly even so far as Mr Law is concerned from that material; but whether or not that is the case, that brief adjournment will enable all of us - you, Mr Law and myself to digest this latest communication. I am hoping that our ever-diligent staff have been able to produce three copies. Very good. All right, we will take a brief adjournment accordingly.
STOKES, MR: If your Honour pleases.____________________
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SIMMONDS J: Just one moment. My apologies. Yes, we have taken an adjournment to permit all of us to examine a document dated 12 August, representing submissions to the objections of the plaintiff against the affidavit of Maurice Frederick Law in defence against the plaintiff's originating motion to remove both caveats, first and second defendants sworn and dated 11th day of August, 2011.
Written submissions of this kind were not of course provided for in my original programming orders. On the other hand, Mr Chin of course has not been present with us today and he has explained why he is not present with us today. Further, Mr Chin is making submissions with respect to the affidavit of Maurice Frederick Law which is, generally speaking, one to be expected to be relevant to his own caveatable interest.
However, the boundaries of relevance between Maurice Frederick Law's caveat and that of Mr Chin has, as has perhaps already been made apparent, been blurred somewhat in the affidavit of Mr Law, the longer of the two 11 August affidavits. Further, I, on review of that document, had difficulty seeing what it's said that was new or added to anything that was before us today. However, I am prepared obviously to be corrected in that or in any of the other respects that I have just indicated. Mr Stokes?
STOKES, MR: No, it doesn't affect my submissions and I have nothing further to add. It gives a passing shot complaining about my notice of objections, but I don't think anything further can be taken from that; and your Honour has in fact already made rulings, so I am not sure whether your Honour was contemplating revisiting those rulings.
SIMMONDS J: It seems to me that it is certainly possible to reopen those rulings if there were matters of relevance and significance to add to previous submissions, given the position in which Mr Chin finds himself; but your submission is, if I can encapsulate it, that it doesn't add anything to what has previously been said and therefore there is no basis upon which reopening could occur.
STOKES, MR: Just so, if your Honour pleases.
SIMMONDS J: Mr Law?
LAW, MR: I would like to indulge a few minutes on the deed, sir. Can I do that? Just a few minutes.
SIMMONDS J: With reference to evidence as to the deed that I have before me?
LAW, MR: Yes.
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SIMMONDS J: Yes.
LAW, MR: 135 ‑ ‑ ‑
SIMMONDS J: Of the first Gannaway affidavit, the one of 30 June?
LAW, MR: No, sorry, sir. The deed. The deed that I made with Nancy
SIMMONDS J: Yes, but where do I have that in evidence, Mr Law?
LAW, MR: Well, it's only that Mr Stokes and yourself were making comments and I have just read over these deeds and I just wondered if I could make two or three minutes of points that I'm bringing out.
SIMMONDS J: Perhaps, Mr Law, but you referred me to a particular page. The page was from where?
LAW, MR: 135.
SIMMONDS J: From where?
LAW, MR: From the deed.
SIMMONDS J: From where? From what document?
LAW, MR: I'd say ‑ ‑ ‑
SIMMONDS J: Page 135 of? Is it the affidavit ‑ ‑ ‑
LAW, MR: My paperwork, I suppose it is. The default judgment.
SIMMONDS J: All right. Mr Law, let me see whether I have understood where it is you want to take me. At page 135 of the affidavit of Ms - I must admit ‑ ‑ ‑
LAW, MR: No, it's the default judgment and then the next page goes to ‑ ‑ ‑
SIMMONDS J: If you would, Mr Law, could you show that document to Mr Stokes. Mr Stokes may recognise it.
STOKES, MR: Yes. Yes, Mr Law is referring to page 135 of the affidavit of Michele-Maree Gannaway sworn 30 June 2011, your Honour.
SIMMONDS J: That's what I thought he was referring me to. Mr Law, this is a document headed 1 November 2000 and it appears to be the deed and it says what it says. What is it that you wish to draw my attention to?
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LAW, MR: Wording on what (indistinct) discussing, it says the "primary law loan arrangements" - the next line - "and ongoing maintenance" ‑ ‑ ‑
SIMMONDS J: Yes.
LAW, MR: And in paragraph 2, the fourth line down, "if necessary, further money assigned to me" - and that's Nancy Hall talking - "whatever the source, to complete total repayment of all funds owed to the Law loan."
SIMMONDS J: Yes.
LAW, MR: If I may just take over to the agreement, page 140, the recitals, a third of the way down.
SIMMONDS J: Yes.
LAW, MR: "The borrower requested the lender and guarantors" - that puts Spunter and Law together. That's mentioned seven times on that page and two on the next page.
SIMMONDS J: Yes.
LAW, MR: I think that confirms whether it's either Spunter or Law. That's all I want to say, sir.
SIMMONDS J: Right. Mr Stokes, let me confirm what I've taken from what Mr Law has helpfully drawn to my attention. First, that there does appear to be an allowance for future liabilities in the 1 November 2000 deed, or November 2000 deed. Secondly, there appears to be an equation for the purpose of liabilities between - sorry; a recognition of the potential for liabilities run from Nancy
STOKES, MR: Well, there appears to be something in - we don't actually have any reference to the guarantors advancing any funds.
SIMMONDS J: No. I accept that. What I'm saying - that's why I framed it the way I did.
STOKES, MR: Yes.
SIMMONDS J: Future liabilities of Nancy Hall. So not only present ones but future ones.
STOKES, MR: Yes.
SIMMONDS J: Of some kind arising in some way.
STOKES, MR: Yes.
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SIMMONDS J: And liabilities that could run to Spunter and that could run to the guarantors. That's what I would take from his submission.
STOKES, MR: Yes. And I have nothing to say in respect to that.
SIMMONDS J: Mr Law, you have one last chance, if you would wish to take it, to respond to the other submissions of Mr Stokes. Mr Stokes made other submissions, of course, before we took the adjournment. Is there anything you would wish to say with respect to that?
LAW, MR: No, I'm happy with that, thank you, sir.
SIMMONDS J: All right. This hearing has run, even allowing for the adjournment, a fairly considerable length of time and I am having to now crave the indulgence of the parties for a further time to be taken to enable me to first quickly review the materials representing the arguments put to me today to determine whether there is anything further that I need to take from the parties. My impression is that there is not. I am now, however, quickly checking my notes - prepared both before the hearing today and during the hearing - to ensure that there is nothing upon which I need the further assistance of the parties. So if the parties would just allow me a brief moment to check in that regard. No. There does not appear to be anything from one of the two sources. Let me just check the other. No. Nothing from that source either. All right.
(Judgment delivered)8/11 107
SIMMONDS J: Yes, Mr Stokes?
STOKES, MR: Yes. If your Honour pleases, I so move for orders.
SIMMONDS J: Very well.
STOKES, MR: Bringing up the originating summons. If your Honour has the originating summons of 30 June 2011 ‑ ‑ ‑
SIMMONDS J: That was simply that the defendant show cause why the caveats should not be removed.
STOKES, MR: Yes.
SIMMONDS J: Perhaps the ultimate order is that - directed to the third defendant, who has made no appearance before me. So far as I know, we have not received any correspondence from the third defendant of the kind we would normally expect to receive. Perhaps I'm wrong.
STOKES, MR: I certainly did receive a letter in the standard form, yes, your Honour.
SIMMONDS J: Madam Associate is drawing my attention to the correspondence section of the court file.
STOKES, MR: Yes. It's a letter dated 19 July.
SIMMONDS J: Is it?
STOKES, MR: Which has been addressed to the Principal Registrar ‑ ‑ ‑
SIMMONDS J: Yes, I see it. Yes. That's in the standard form. The registrar agrees to abide by any orders made by the court on the basis indicated.
STOKES, MR: Yes.
SIMMONDS J: None of those bases would appear to be engaged here, that is to say, no allegations are made against the registrar, no order as to costs is made against the registrar - I take it none is sought.
STOKES, MR: No.
SIMMONDS J: And the registrar is able to give effect to the terms of any orders made by the court. That, of course, takes us to section 138, the Transfer of Land Act. Section 138 provides, of course, for any order the court sees fit. I do not see why the court might not make an order directed to the registrar to remove the two caveats so indicated.
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6.47
STOKES, MR: I think that's the third order that I seek on the summons, your Honour.
SIMMONDS J: Yes.
STOKES, MR: So I would seek an order in terms of paragraph 3 and in terms of paragraph 5 .
SIMMONDS J: So order in terms - this is what you propose in order 3 in the originating summons:
Third defendant forthwith remove from the Land Titles registrar the first caveat and the second caveat in respect of the property.
The first caveat is that of Chin, L550173; the second is that of Maurice Law, L553573.
STOKES, MR: Yes.
SIMMONDS J: You also seek an order in terms of order 5:
The first and second defendants pay the plaintiff's costs of..........plaintiff is to recover all of her costs other than those unnecessarily or unreasonably incurred on a full indemnity basis.
Do you still seek an indemnity costs order?
STOKES, MR: I do, your Honour. The opportunity to remove the caveats was given to each defendant. There was no response to that correspondence other than to refuse outright to remove the caveats. We have been involved in a lengthy hearing, both today and on Monday, in circumstances where very little affidavit material was ultimately filed. It has been necessary ‑ ‑ ‑
SIMMONDS J: That might be true of Mr Chin. It's not altogether true of Mr Law. That is to say, affidavits with reasonably substantial textual content were filed, however, I acknowledge that the bulk of those affidavits or the bulk of the lengthy affidavit was excised as a consequence of objections taken to it.
STOKES, MR: Yes.
SIMMONDS J: All right.
STOKES, MR: There is a further order also that follows from one and two that I would seek, and that is that each defendant be restrained from lodging any further caveat in respect of the property as defined.
SIMMONDS J: And order restraining the lodgment of any caveat by either defendant for the caveatable interest claimed by the two caveats.
12/8/11 STOKES, MR 109
STOKES, MR: Yes.
SIMMONDS J: That's important language. I have indicated the limitations of the caveatable interest both for Mr Chin and for Mr Maurice Law. This order doesn't go to any other caveatable interest that they might claim for and I don't think it would be appropriate for me to make an order directed to any other caveatable interest.
STOKES, MR: No ‑ ‑ ‑
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SIMMONDS J: I appreciate the reserved response, particularly in view of the history, but it seems to me that it has been made quite clear what it is that I understand the caveatable interest of both parties to be, why that caveatable is one in respect of which I consider no arguable case has been made.
STOKES, MR: Yes.
SIMMONDS J: In respect of any other caveatable interest that they might seek to claim that is a different matter and I have not addressed that in any substantive or final resolutory way.
STOKES, MR: No. I would just make this observation. Your Honour in your concluding comments referred to the indefeasibility provision as a barrier.
SIMMONDS J: Yes. Whether in fact it would be a barrier in respect of other caveatable interests is not a matter I believe it is appropriate for me to ‑ ‑ ‑
STOKES, MR: Yes. I don't pursue that matter.
SIMMONDS J: All right.
STOKES, MR: So they are the three orders I would move for.
SIMMONDS J: All right. Order 2 would, it seems to me, be more than sufficient to cover the costs of the adjournment which is a matter I had reserved from Monday and unless there is anything separately you want to say about that it seems to me that that is as it should be.
STOKES, MR: Yes. For the assistance of the taxing officer could the words "including all reserved costs" at the end of the second line.
SIMMONDS J: Including all reserved costs, yes. Right. Just one moment, Mr Law. There is no question of making orders until you have had a chance to speak to me about them. There is one matter, however, that I do wish the opportunity for brief reflection upon.
Mr Stokes, the only aspect of the orders that you have put to me that I need to say at this point troubles me is the indemnity costs basis for the order. The indemnity costs basis is, I presume, one that you would say rests on the hopelessness of the case put by Mr Chin and by Mr Law and you would say that by reference to the bases upon which I have indicated I have arrived at my decision and the paucity of evidence put in respect of the caveatable interests claimed.
12/8/11 STOCKS, MR 111
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The difficulty I have is this: it has taken some considerable time. I trespassed on the goodwill of a whole range of people in the giving of this decision. Some considerable time has been taken occupied with considering the arguments in relation to a caveatable interest and if I may characterise the position put by Mr Chin and by Maurice Law this way it is that there was a basis they said for the caveatable interests they claimed to be found in, indeed, the material that you had filed for the most part subject to elaborations which might be considered to be appropriate by either of them and in this event only Maurice Law considered it to be appropriate to file material, the bulk of which (indistinct) struck out.
Hopeless cases may require considerable development in order for their hopelessness to become evident but a hopeless case would not normally be associated with a matter which requires some considerable argument. Now, I must allow for the fact, and I say this carefully, that Mr Chin's submissions are not easily followed and occupied some considerable time both before hearing and to some extent at it because some of this material went into exchanges I had with Maurice Law working out what the case was. So a large part of the time went into that.
Similiarly Maurice Law's case took some time to extract. The acid test, if I may put it that way, is what happens with the case after the extraction? In the case of Mr Chin it was relatively straightforwardly dealt with, if I can put it that way. Even so it took a little time and in the case of Maurice Law it was not straightfowardly resoluble. It required resort to legal principles of some considerable and forbidding technical difficulty. That, it seems to me, is not the hallmark, in either case, of a hopeless case.
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STOKES, MR: I don't want to waste very much time at all, your Honour. I'm conscious of everybody here. My brief response would be the difficulty and the degree of time that has been taken was in part - was in the majority of the part the way each defendant presented its case, rather than the merits of the case itself. Your Honour had to tease out from Mr Law's affidavit material some potential bases in relation to some payments that may or may not have been made to him afterwards that may give rise to a caveat in some other form.
SIMMONDS J: Yes.
STOKES, MR: That is not the caveat that we came here to set aside.
SIMMONDS J: I understand that.
STOKES, MR: Yes. I don't want to press it much further, your Honour ‑ ‑ ‑
SIMMONDS J: All right. Would you wish the opportunity - if I still had the concerns that I ventilated, the opportunity to make written submissions or would you be content to have me resolve the matter now?
STOKES, MR: No, I would be content to have the matter resolved now. If your Honour please.
SIMMONDS J: All right. Mr Law, is there anything you would say to me about the orders that Mr Stokes has indicated he would wish to have made? I should say that order 1, that the registrar remove the caveats, follows fairly straightforwardly from the conclusions that I've indicated. Likewise order 2, except in respect of indemnity costs. Which is the making of a costs order at a higher potential level of liability than would otherwise be the case. Putting aside the indemnity aspect of it, that too, that order would follow as well because both you and Mr Chin have lost the present case. Finally, the order restraining the lodgment of any further caveat for the caveatable interests that each of you has claimed is, likewise, one that would frequently - not invariably but frequently - follow in a case like this. It's designed to avoid having the same dispute fought again.
LAW, MR: Yes.
SIMMONDS J: It does not, however, relate to any other caveatable interest that might be claimed but, of course, there would have to be such a caveatable interest that at least you and Mr Chin thought existed and that would have to be a matter for the two of you. Is there anything you would wish to say at this point?
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LAW, MR: No. No, thank you.
SIMMONDS J: All right. Mr Stokes, I will make the three orders. However, I will not make the costs order on an indemnity basis for the reasons that I have indicated. It seems to me that although there is much to be said in favour of an indemnity costs order, it is not enough, in my view, for a proper foundation of the exercise of discretion in that regard to be seen. I appreciate all of the points that you have made, however, I must also take account of the fact that the parties are who they are and they have been involved in litigation of the duration and the complexity that all of this represents. The matter is close to the line, I do not doubt it, but it is not over the line in my view.
STOKES, MR: Yes.
SIMMONDS J: I will therefore make order 1 in terms of order 3 of the originating summons. I will make order 2 in terms of order 5, save that I would delete all the words after "third defendant" and substitute in place of those "including any reserved costs".
STOKES, MR: Yes.
SIMMONDS J: I believe I haven't distorted the order otherwise.
STOKES, MR: No.
SIMMONDS J: I would make order 3 and order that neither defendant lodge any further caveat for the caveatable interest each has respectively claimed in caveat number L550173 and caveat L553573.
STOKES, MR: Yes.
SIMMONDS J: I believe that achieves the purpose that you had sought.
STOKES, MR: Yes. It does. May I ask your Honour would it be possible for us to extract it by reference to your associate ‑ ‑ ‑
SIMMONDS J: Yes.
STOKES, MR: Yes.
SIMMONDS J: I'll just check with my associate but I can't think of any reason why not. Mr Stokes, just to warn you, I commence a trial - we all commence a trial in the District Court on Monday and it's a criminal trial so it starts at 10 am.
STOKES, MR: Right.
12/8/11 114
SIMMONDS J: We will move as quickly as we can but you should be guided accordingly by how you liaise with my chambers in reference to that.
STOKES, MR: Very well, your Honour.
SIMMONDS J: Thank you. I know practice in the court differs somewhat but my own view is that I have trespassed considerably in the indulgence of the parties but also of those associated with the running of the court and I appreciate their indulgence necessarily imposed upon in that regard. We're adjourned accordingly.
LAW, MR: Thank you, sir.
AT 7.05 PM THE MATTER WAS ADJOURNED ACCORDINGLY
12/8/11 115
I KNOW HIS HONOUR SIMMONDS J TO BE A FAIR JUDGE AND HE IS VERY THOROUGH. IF HE HAS ORDERED FOR THE RELEASE OF MY CAVEAT, THEN I SHALL ABIDE BY IT. IT MEANS THAT I CANNOT CLAIM ANY MORE. I JUST WAIT FOR THE COURT TO APPEAL TO DECIDE ON MY APPLICATION IN CACV 107 OF 2008 TO EFFACE THE ERRORS OR LAW APPARENT ON THE FACE OF THE COURT RECORDS.
ReplyDeleteIF THERE IS NOTHING ELSE THAT I CAN DO TO ACHIEVE JUSTICE, THEN I JUST RESIGNED TO MY FATE AND LET THE PUBLIC DEAL WITH IT.
ReplyDeleteTHE ISSUES AT HAND ARE STILL BEING AVOIDED IN THE JUDGMENT. BUT THERE IS NO WRITTEN JUDGMENT SO FAR. I AM TIRED.. I JUST GIVE UP IF THERE IS NO JUSTICE...
ReplyDeleteI BOOKED THE TICKETS ON 27.5.2011 TO GO OVERSEAS ON AN EMERGENCY. I WAS SERVED WITH THE NOTICE OF ORIGINATING MOTION IN CIV 2157 OF 2011 ON 12.7.2011 BY CHRIS STOKES & ASSOCIATES, THE SOLICITORS FOR THE PLAINTIFF. I IMMEDIATELY RESPONDED TO THE CHRIS STOKES THAT I WOULD NOT BE AVAILABLE AND GAVE MY UNAVAILABLE DATES FOR SEPTEMBER OR OCTOBER, 2011. CHRIS STOKES DID NOT RESPOND TO ME. IF HE DID INFORM ME THAT THE CASE MUST GO ON ON 8.8.2011 THEN I WOULD HAVE RE-ARRANGED MY TRIP ABROAD. I AM THEREFORE NOT RESPONSIBLE FOR THIS COST ORDER AS I AM NOT CULPABLE.
ReplyDelete