Copyright in this document is reserved to the State of Western Australia
THE SUPREME COURT OF
THE SUPREME COURT OF
WESTERN AUSTRALIA
MICHELLE MARIE GANNAWAY
and
NICHOLAS CHIN and OTHERS
SIMMONDS J
TRANSCRIPT OF PROCEEDINGS
AT PERTH
(In Chambers)
MR C.P. STOKES appeared for the plaintiff.
MR M. LAW appeared in person.
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(s&c)
STOKES, MR: If your Honour pleases, Stokes for the plaintiff applicant.
SIMMONDS J: Thank you, Mr Stokes.
LAW, MR: Morris Law, self.
SIMMONDS J: Thank you, Mr Law. I understand that there is not likely to be an appearance today before us for Mr Chin.
STOKES, MR: So I understand from the correspondence that has been conveyed to me, your Honour.
SIMMONDS J: Yes, indeed. We'll just take a moment to allow Mr Law to put his papers on the table. Thank you, Mr Law. You are probably familiar with the way these proceedings work. You can sit down; there's no need for you to remain standing. I will ask Mr Stokes to introduce his application. It's my understanding that both Mr Chin, and perhaps you as well, wish the court to adjourn the hearing today to permit certain matters to be attended to by you and on whatever other basis for an adjournment it is proposed to put to me. Have I correctly understood things from your perspective?
LAW, MR: Yes, sir.
SIMMONDS J: Thank you, Mr Law. In the ordinary course of things an application for an adjournment goes first and that would be my inclination, subject to anything Mr Stokes has to say to me but, as I indicated a moment ago, Mr Stokes should have the opportunity at least to introduce his application so that I may understand the background. Yes, Mr Stokes.
STOKES, MR: Thank you, your Honour. Your Honour would have seen the rather lengthy affidavit of Ms Michelle Marie Gannaway in support of the application.
SIMMONDS J: Yes.
STOKES, MR: The application, in summary, seeks the removal of the caveat lodged by Mr Chin and the caveat lodged by Mr Law in respect of the property that can be briefly described as "the Hazelmere property", and that is more particularly identified at paragraph 4 of Ms Gannaway's affidavit.
SIMMONDS J: Yes.
STOKES, MR: The application is supported, as I say, by Ms Gannaway's affidavit and the urgency in this matter arises from the fact that there is a settlement scheduled
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SIMMONDS J: Do I have affidavits of service or similar?
STOKES, MR: I certainly can hand up affidavits of service if required. They haven't been filed, your Honour.
SIMMONDS J: I see. Could I see them, please.
STOKES, MR: Yes.
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STOKES, MR: I'm sorry, your Honour, I'm ‑ ‑ ‑
SIMMONDS J: Perhaps I should return both to you.
STOKES, MR: Yes.
SIMMONDS J: I draw your attention to the affidavit of service of Glenn Martin Fowler sworn 14 July 2011. Perhaps I'm misreading it. You might want to have a look at it.
STOKES, MR: Not if there's a blank, your Honour. It perhaps renders the affidavit of no benefit. No. I have the accompanying report. It concerns the service of the affidavit of Mr Law ‑ ‑ ‑
SIMMONDS J: Yes.
STOKES, MR: - - - who is of course here ‑ ‑ ‑
SIMMONDS J: Indeed.
STOKES, MR: - - - and can state either way whether he was in fact served. I'll just say from the bar table that my report is that he was served on 8 am on 14 July.
SIMMONDS J: Right.
STOKES, MR: But certainly that affidavit will need to be properly sworn. It's of no benefit to your Honour.
SIMMONDS J: Yes, all right. So this action or these proceedings are under Transfer of Land Act section 138 for the two defendants to show cause why these caveats should not be removed. Correct?
STOKES, MR: Correct, your Honour.
SIMMONDS J: All right. That's probably sufficient for the time being. You've indicated the nature of the urgency being that the registered proprietor has entered into a contract by way of offering acceptance for the sale of a property, and I note paragraph 5 of the registered proprietor Ms Gannaway's affidavit, with settlement stipulated to be on or before 17 August 2011. There's no copy of the contract of sale annexed to the affidavit, so far as I know.
STOKES, MR: No, there isn't. I am in a position if required to hand up a copy, and of course my client is in the court as well if that becomes an issue.
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SIMMONDS J: Yes, I understand that. Very well. The two defendants, or at least Mr Law who's present here today, and Mr Chin by correspondence with the court, have both indicated their wish that the matter not proceed to hearing today or at least to final orders, in order that they have the opportunity to do what it is they've indicated in their correspondence they wish to do. As I said a moment ago, in the ordinary course of things, an application for an adjournment would take precedence.STOKES, MR: Yes.
SIMMONDS J: So I would hand over then at this point to Mr Law to put whatever matters he would wish to put to me in support of any such application.
STOKES, MR: If your Honour pleases.
SIMMONDS J: Thank you. Yes, Mr Law.
LAW, MR: Good morning, sir. The debts of the estate have not been settled, and I fear that once this sale goes through that Mrs Gannaway will not attend to the debts. I have Nancy Hall's affidavit that, "The payback of moneys by me" - that's Nancy
SIMMONDS J: Yes, but why do you say that the determination of the issues raised in the present application could not take place today?
LAW, MR: Because they haven't been made out to finalise the interest and costs up to today.
SIMMONDS J: Today's application you've just heard is for the removal of a caveat, or rather for you to show cause why the caveat in your case - Mr Chin's caveat is a separate matter - should not be removed, and that in the normal course of things would be a matter for you to show the court at least an arguable case why you have a caveatable interest. You, as the caveator, have a caveatable interest in the Hazelmere property, which is the one the subject of the caveat and the application before me today.
That would normally call for evidence of some kind to be drawn to my attention, that would enable me to determine whether or not there is an arguable case that the caveator has an interest, and if such an arguable case is made out, questions would then arise of orders that might need to be made for the final resolution of any such interest to be arrived at.
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proceedings in relation to all of this, in which an action for removal of a caveat was brought against the company with which your wife and you were associated, in which something of that kind took place. There was a hearing, orders were made for the commencement of proceedings by Spunter and so forth. But in order to, as it were, get all of that going, there needs to be matter put before the court, or to which the court's attention is drawn, to show that the caveator has an arguable caveatable interest. That's normally - not always - but normally enough, if it can be established, to have the court not make the order for removal that's sought.
Why shouldn't the court go ahead with what it has now, to make whatever determination it can, based on what it has now? What it has now, of course, is the affidavit of Ms Gannaway. You've said a number of things to me, but they are, as it were, from the bar table. They're not evidence the subject of an affidavit or similar - at least not that I'm aware of - filed for the purpose of the present application. You've referred me to an affidavit of Nancy Hall. I haven't seen any such affidavit in the present proceedings, the present proceedings being CIV 2157 of 2011. I can understand that there's a very large amount of material that's been filed for the purpose of other applications, but my concern is with the present application, not with - at least not directly with - other applications.
LAW, MR: Yes, your Honour. I've applied to these people time and time again for the debt to be settled, and I've been ignored. The fact that I have paid out these sums of money gives me a caveatable interest on Nancy
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That's some of the situation, but the fact remains I will not get my money if Michelle sells this block of land say on the 17th. I know from the dealings with these people for the last few years - I don't think it's an honest situation that goes through; even just that two lines, one debt, if you put it. Now, you should have some documents there stating the money that I had advanced to Mrs Hall but, like the other cases that she borrowed, took money from people and not repaid, you know, I'm at least standing up for my rights to be paid the money that I assisted her in dealing with the possible loss - quite likely the definite loss - of the property Hazelmere through non-payment of rates. That was the one from Mr Harris.
The witnesses that I have, they can't pop out during this time when it's tax time and recording of their stock, et cetera, and they needed a little more time to organise their time because they are both business people. One of my witnesses is in hospital. My wife is here today to testify that I did advance money to Nancy, which nothing has been repaid, and her daughter, Mrs Gannaway, has not tried to attend to these debts; you know, they're recognised. They're signed by Nancy
In that submission - it's a submission, isn't it, originating summons? - those documents are there, all signed by Nancy Hall, and her daughter is taking no respect for them. It's just walk over like her mother did and I feel that there's no way I'll get my money if this goes ahead and is not postponed till I can have a good defence. I've just got too many procedures and pills and doctors and stuff going on to give seven days a week to - I do my best. There's just a stack of paperwork that she's ignoring and Mr Stokes is not replying to my mail, so what do I do? I postpone it till such times as I am able to have a proper defence and possibly a charge for them to pay the debt after 10 years.
SIMMONDS J: As I understand it, the charge arises under a deed that was executed some years back now.
LAW, MR: 2000.
SIMMONDS J: Indeed. Was the subject ‑ ‑ ‑
LAW, MR: Default judgment.
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SIMMONDS J: - - - of a caveat previously lodged - an earlier caveat?LAW, MR: Yes, sir.
SIMMONDS J: A caveat by the company Spunter, not by you, as I understand it.
LAW, MR: That's right.
SIMMONDS J: And that caveat was, as I also understand it, removed by an order of Master Sanderson in 2008.
LAW, MR: Yes, sir.
SIMMONDS J: You made efforts to appeal against the making of that order - or rather Spunter did, I presume ‑ ‑ ‑
LAW, MR: Yes.
SIMMONDS J: - - - but as far as I can tell from what material I have before me nothing has come of that and that order of Master Sanderson still stands.
LAW, MR: Yes, sir.
SIMMONDS J: I understand that your caveat - the one in your name ‑ ‑ ‑
LAW, MR: The present one.
SIMMONDS J: - - - arises out of the same deed as the Spunter caveat, but you are saying is a matter of a charge in your favour to protect your interest in the Hazelmere property arising out of money which you say you lent, not Spunter, to Mrs Hall, the late Mrs Hall.
LAW, MR: Yes, well, I'm the guarantor - my wife and I are the guarantors. I had to borrow the money through the company because the company owned my house at the time.
SIMMONDS J: Right.
LAW, MR: Otherwise I couldn't have helped Ms Gannaway's mother at all. I have affidavits where I have done work for Hazelmere - at least even that 24,000 plus architectural plans, liaising with an architect to develop that block to over 55s.
SIMMONDS J: Right.
LAW, MR: So the fact that the money is there - and it has not been disproved in 10 years. I did get a default judgment, but the money is still there, owing, and they're not taking any notice. I think that's dishonest. There's no justice in the length of time - it's ruined my life - to
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My very first solicitor won the default judgment, but the subsequent solicitors haven't done anything. Even Registrar Hewitt admits that I have money owed. Even going back to the original, I've got testimonies where the money was not advanced for Ms Hall, to assist her. Now, there's 500,000 missing and the corruption is still going.
What's a bloke supposed to do? If I can't get good representation, I've got to try and defend it myself and I think the proof is there. If I can present it properly then these people will have to pay me tomorrow, today. They are going on as if they don't owe me any money. Now, Mrs Gannaway has been dealing with the estate without settling the debts. That's a gaolable offence, and I think Mr Stokes knows what's going on. I think he could be in strife if I can get the proof to put to the court.
SIMMONDS J: Yes. We need to remind ourselves, Mr Law, that these proceedings are in respect of the removal of your caveat and Mr Chin's - we'll reach Mr Chin's caveat in a moment. They don't concern - or at least they don't directly concern - the rights and wrongs, as you assert them to be, and there may be much more to be said on that account in respect of the administration of the estate.
The question is rather whether there is an arguable case that you, for your part, and Mr Chin for his, has a caveatable interest in the Hazelmere property and that requires there be evidence upon which the court can be satisfied that there is an arguable case. The court is not required to make a final determination that there is a caveatable interest.
You may remember that from proceedings a while back in 2008 - or indeed going back to 2006 - but the basic requirement is that there be a caveatable interest held by you, or an arguable case of one, in the Hazelmere property.
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You have said to me that you would wish to put matter before the court that would show that your position in these proceedings should be upheld. I put it that way because that is to direct my attention to what the nature of the proceedings are. These are not proceedings in probate, these are not proceedings concerned with whether or not the executor of a will has properly discharged his or her responsibilities. They are whether there is an arguable case that there is a caveatable interest.
If there is no such case presented, then in the ordinary course of things, the person, the registered proprietor - Ms Gannaway in this case - has a right to have an order made to remove the caveat. You've heard what Mr Stokes has said about appending sale of the Hazelmere property; a sale which presumably will either not go forward or will only with difficulty go forward so long as the caveat remains in place.
You've told me that there is matter you would wish to put before the court that you haven't yet had the opportunity to collect because of the time of year at which these proceedings arose. You've heard Mr Stokes refer me to an affidavit of service, one that Mr Stokes has indicated needs to be corrected or updated, indicating that on Mr Stokes' indications from the bar table - and I have difficulty with indications from the bar table for either side - represented service of notice of these proceedings on you on 14 July or thereabouts this year.
Is it correct that you got the papers for the proceedings around 14 July this year; that is to say, towards the end, or just after the end of the financial year?
LAW, MR: Yes, I did have them.
SIMMONDS J: Yes, all right. And you got them around the middle of last month?
LAW, MR: Yes, sir.
SIMMONDS J: Yes, all right. Your point is, I think, that because of when you got them and because of what you would wish the court to consider, that it is simply not possible for you to put a proper case to the court today. Is that correct?
LAW, MR: Yes, sir.
SIMMONDS J: And in the normal course of things, one
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question the court would then ask is by what date or by when do you believe you would have the material that you need?LAW, MR: Because of the ongoing medical conditions I have, these tablets that I've got to go all the way to Fremantle for, keeps me away from the computer to make these statements, make the points of proof, compile everything together. I'm not as fresh as I was five years ago and it's taking me longer to do them. Next time I come to court I'll bring a photograph of my bedroom and you'll see all the papers I have there.
There's a testimony that I'm taking these pills. They're for an antibiotic pill for the operation I had on my hand in September, which I'm going to have to take these jolly things for another six months. That's 18 months. The fact that my money paid, one, hasn't been challenged: the proof is there. I've got cheque butts, I've got solicitors' acknowledgment that I've paid for the purchase of the hotel. The misrepresent - I'd better not say that. Just proof that I paid the money, and they're wanting to sell the land and run. I've got so much more I could talk about, and this 500,000 that's missing in two years - I can't say that in this business about the caveat.
The caveat is there to protect the money that I willingly gave Nancy Hall and has continued to pay interest. That's where the caveatable interest is there. If somebody takes the caveat off, what am I going to have to get these to pay - if they haven't paid in the last 10 years? I've had - no, I can't say that. I'll say it some other time.
SIMMONDS J: Yes. Now, of course, the caveat of Spunter was removed - it was removed by the order of Master Sanderson - at the instance of a first mortgagee, a mortgagee deriving from some time in the 1990s where the mortgage had been transferred to the first person acting as the first mortgagee, I referred to that a short while ago. Do you propose to call evidence or draw the court's attention to evidence with respect to that matter?
LAW, MR: Yes, sir. There's no evidence that Nancy
We don't have any proof, which we've asked for time and time again for evidence of that money being received by Nancy Hall, what she did with it. So it's a fictitious document. I've asked for, say, eight years, for cheque
butts or for bank statements to show that Nancy
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SIMMONDS J: Yes.
LAW, MR: Master Sanderson's removal was not right because I had a caveatable interest on the properties. We've asked for proof - - -
SIMMONDS J: You didn't remove your caveat, as I understand it.
LAW, MR: Spunter.
SIMMONDS J: It was Spunter's caveat that you removed.
LAW, MR: Correction, it's just - - -
SIMMONDS J: Spunter's caveat, as I understand it, arises or arose under the same document under which you say your caveatable interest arose. Is that correct?
LAW, MR: Yes, sir.
SIMMONDS J: All right.
LAW, MR: But now that Nancy Mount Lawley
We have no proof of where the money went from that block of land. It might have gone to Michelle. I don't know. We've asked for proof. No way, they won't give it to you. They just want to walk over my body. If they'd considered repaying me, it would be a decent matter, but, "Ignore, he'll go away."
SIMMONDS J: Yes.
LAW, MR: The caveats from Spunter were removed because of my inexperience.
SIMMONDS J: I'm sorry, say again?
LAW, MR: The caveats of Spunter were removed by my
inexperience and I say lack of direction from my then solicitor.
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LAW, MR: And there were things done there that we're trying to fight too. So it's not just putting up paperwork for this hearing. I've got paperwork for challenging the solicitor that didn't serve me.
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LAW, MR: No, sir. Two solicitors have taken all my money. I'm flat out living, you know. I'll be eating the grass on the estate soon.
SIMMONDS J: I see.
LAW, MR: It's blatantly evident that I lent Nancy
SIMMONDS J: All right. That's probably - if I may say it - sufficient for me to understand the basis of your application for an adjournment. It may be that there is something further that's appropriate to ask you to say. Is there anything further you feel that you haven't had an opportunity to say, with respect to the adjournment? We're at the moment considering only that application, not - that is to say - whether or not there is other evidence.
LAW, MR: Or the other evidence.
SIMMONDS J: That's right.
LAW, MR: No. Well, it's only a request to keep it, because it could be sold and then the money go into the wind. I know I can sue her for the administration dealing but, you know, it's all hassle. I want to get on with my life. I want my money back and costs, and then I can leave them in peace, and they can leave me in peace. Thank you, sir.
SIMMONDS J: Very well. Thank you, Mr Law. Yes, now, the difficulty of course, Mr Stokes, is so far as Mr Chin is concerned, although his application for an adjournment, if I may say so, proceeds along similar lines, "I don't have enough time" - he seems to say - "at present to present the evidence I need to present." He's also got a further point. This further point is that, "I am abroad. I was not in a position to return for the hearing today, and accordingly I suffer under that additional disadvantage." Mr Law, of course, has had the opportunity to present his case for an adjournment. So far as I can tell then, as I say, there is that twofold basis for Mr Chin's application for an adjournment: (a) insufficient time to marshal evidence; (b) in any event, no opportunity to be present at the hearing here today.
STOKES, MR: In relation to both of those matters,
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your Honour, may I say firstly he has had from 12 July through to today in which to both prepare any affidavit material upon which he would seek to rely. He is currently an admitted practitioner, and accordingly would be presumed to have the capacity and ability to prepare any affidavit material that he would wish. Secondly, he was present in SIMMONDS J: Yes.
STOKES, MR: A period of some three and a half to four weeks is more than sufficient time to put in any affidavit material, particularly when that party is a practitioner himself, upon which he would seek to rely. The issues that are raised in the application as against Mr Chin are not matters of which he would be unaware. They are very old matters that, as your Honour will know, have been the subject of previous proceedings in this court, so it was not as to say matters that Mr Chin would need to research and engage and carry out lengthy investigations on. They would be matters at his fingertips, based on the fact that both Master Sanderson and the Court of Appeal dealt with the very same facts that Mr Chin is now seeking to rely on in support of the present caveat.
So we would say there is no reasonable basis for any adjournment. May I also say that, as your Honour would be aware, the principle in relation to these types of applications is that the onus is on the caveator to seek the extension of time for the operation of the caveat, not upon the registered proprietor. The registered proprietor may either bring the application in the way it has done here or it may apply to the registrar of titles for the issue of a section 138B notice. In either situation the legal principles are fairly straightforward. The onus is borne by the caveator to show good reason why the caveat ought be extended. So for all of those reasons, we would say Mr Chin has established no reasonable basis for any further adjournment.
Further, of course, there is the balance of convenience argument, namely that 17 August is a date fixed for the settlement on the sale of the property. That matter was made clear to both defendants at the time of service of the application. Today's date was made clear to both defendants at the time of service of the application, that being the date inserted on the originating summons. Those matters in relation to Mr Chin, we say, ought deny Mr Chin any further adjournment.
He's put on no affidavit material. He has only, on my understanding, forwarded to your Honour's associate two
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So that would be my brief submissions in relation to Mr Chin. I would also, I suppose, in conclusion say that the matter has been determined once against Mr Chin, both before Master Sanderson and before the Court of Appeal, in relation to the validity of his caveatable interest. It's been found against him on each occasion, so we would say that upon any adjourned hearing in any event, there is nothing that Mr Chin could put in evidence that would assist the court in a further determination of his claim.
Mr Law: we would say his application for an adjournment suffers under similar difficulties. Mr Law is an experienced litigant in this forum. He has brought a number of applications, both personally and through solicitors. He's aware of the obligation to file affidavits and not speak from the bar table on a whole range of matters. The issues upon which he seeks to found his caveat were the subject of extensive affidavits in the District Court proceedings. From recollection I think Mr Law had prepared and lodged some eight affidavits in support of his application before Registrar Hewitt for leave to enforce his judgment.
So these are not new matters. He had that application dismissed. It was the subject of an appeal which decision is yet to be delivered. I'm referring to the appeal from that of Registrar Hewitt to her Honour Judge Sweeney. But all of those issues were before the court on that occasion. Mr Law is aware of all of those issues. He's aware of his obligation to file affidavit material if he wishes to be heard in relation to any application in this court.
SIMMONDS J: Just before you go any further, the proceedings in the District Court were ones to which not only Spunter was a party as I understand it but also Mr Hall and his wife Mrs Hall?
STOKES, MR: Yes, all three.
SIMMONDS J: And the leave to enforce that was originally granted and then set aside was in respect of a default judgment given in favour of all three. Is that right?
STOKES, MR: Yes.
SIMMONDS J: And that it is the setting aside of that
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STOKES, MR: Yes, your Honour.
SIMMONDS J: All right. I'm sorry ‑ ‑ ‑
STOKES, MR: No, that's ‑ ‑ ‑
SIMMONDS J: I should allow you continue.
STOKES, MR: The other basis upon which the adjournment is sought today is Mr Law's medical condition. Again, firstly, Mr Law has raised this on previous occasions on other applications. He's been told on previous occasions in the District Court that if he wishes to rely on such evidence, he must put it in affidavit form.
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He's not asking your Honour for an adjournment to take the opportunity to instruct solicitors. He's not going to instruct solicitors. He believes they haven't served him competently, so that cannot be the basis of his application for an adjournment. It would appear that his basis is simply (a) he wants more time and (b) his medical condition makes it difficult for him to properly prepare, but he gives us no explanation as to what further period of time he requires and what about his medical condition presently makes it difficult to have prepared in the last three and a half weeks that he has had for today's hearing.
Again we would say there is no admissible evidence upon which you can determine the application for an adjournment ought be granted, and again, as with Mr Chin, we would say in relation to Mr Law he bears the onus of establishing the reason why his caveat ought be extended. We say on the entirety of the evidence that could be placed before the court he has no caveatable interest and that no adjournment will assist him in relation to that matter, so we would say on a matter of merit it is difficult to envisage what additional material he could put before the court to assist him on that matter. But that's not our principal ground for opposing the application. It's the fact that he's had the opportunity and has failed to do so - to put in any admissible evidence upon which the discretion to adjourn ought be exercised.
SIMMONDS J: I am at the moment struggling with this aspect of the matter: the caveatable interest upon which Mr Hall relies is the deed that is referred to, I believe, in the - perhaps most conveniently referred to for my purposes in the appeal judgment in this matter that's included as part of the papers in Ms Gannaway's affidavit and this deed is one under which Mr and Mrs Law and Spunter were given what was called in the deed "a first charge" over the properties, including the Hazelmere property. Right so far?
STOKES, MR: Yes.
SIMMONDS J: The reference to the deed that I was looking for is paragraph 7 (2009) WASCA 216 in the judgment of Owen J. The deed executed on 4 November 2000 refers to a first call on the property and I took that to be the document to which Mr Law was referring me when he said earlier that Mrs Hall had acknowledged or granted a first
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call on the properties.There would, one would imagine - and there's no matter in the document to contradict this, and by the document I mean the affidavit of Ms Gannaway - that an interest was capable of arising under that second deed. It's not suggested that that deed was itself fictitious or void or similar. There is, as I understand it, a question which this affidavit raises of whether or not Mr Law in fact himself extended any moneys under the deed in respect of which he would then have a first call interest. Is that correct?
STOKES, MR: That's correct, your Honour. All the funds were extended, on Mr Law's case, by the company and the funds were personally guaranteed by Mr Law and his wife, but the funds were advanced by Spunter Pty Ltd.
SIMMONDS J: Yes. Mr Law appears to have said to me that that's not altogether accurate or perhaps not accurate at all; that there are moneys he advanced personally to Mrs Hall in respect of which, accordingly, I would have the evidence that is in the Gannaway affidavit, which I think draws my attention to certain affidavits filed in the District Court proceedings, but there would appear to be additional materials Mr Law wishes to draw to the court's attention. He hasn't drawn it to the court's attention yet, he says, because he hasn't had sufficient opportunity for that purpose.
STOKES, MR: The difficulty with that reason for the adjournment can be found perhaps at annexure MMG15, your Honour, starting at page 129, and this is an affidavit sworn by Mr Law in the District Court proceedings. At paragraph 9 of that affidavit you will see where Mr Law deposes 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 - which is himself - or his wife Cheryl Law, who had previously been the second plaintiff and the corporate second plaintiff being the third plaintiff, and it says:
See annexure MFL4 for the confusion of Registrar Hewitt concerning the quantum of the default judgment debt.
That's Mr Law deposing as to who the liability is owed to and who the funds ‑ ‑ ‑
SIMMONDS J: In respect of the judgment debt.
STOKES, MR: Yes.
SIMMONDS J: Is there any other debt?
STOKES, MR: No. There are other claims.
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STOKES, MR: But there is no other judgment debt.
SIMMONDS J: No, that I clearly understood. If I have understood Mr Law correctly, though, he wishes to put on evidence to support the proposition that - and perhaps I am wrong in understanding him in this way - there are certain sums that he advanced distinct from the judgment debt to Mrs Hall. Mrs Hall did with that money whatever it was she did with that money, but nonetheless it is money in respect of which he has himself a first call by virtue of that 4 November 2000 deed.
STOKES, MR: All the moneys pursuant to the deed are encapsulated in the judgment debt.
SIMMONDS J: How do I know that?
STOKES, MR: I could take you if you wish to be taken through the deeds, your Honour. They are in fact in the affidavit ‑ ‑ ‑
SIMMONDS J: Well, no, in this sense - I'm sorry. Perhaps I didn't make myself very clear. Mr Law wishes, if I have understood him correctly, the opportunity to put evidence before the court that - and perhaps I'm wrong and Mr Law can correct me immediately if I am wrong - there are amounts other than, over and above, the 144,000 representing amounts he lent to Nancy Hall that were not lent by his company in respect of which he has a charge.
STOKES, MR: I'm in the air if I don't know what I don't know, your Honour, I'm sorry.
SIMMONDS J: Right, okay.
STOKES, MR: I can't assist you in relation to that submission of Mr Law. I can say to you that the amounts set out in the deeds that were the subject of the District Court default judgment are the amounts that are claimed and to which, as I understand his caveat of what he's seeking - to assert his caveatable interest pursuant to, namely, the judgment debt and the sum encapsulated there. If there are other claims that Mr Law personally says he advanced moneys, he would have to articulate them to your Honour directly. I can't assist.
SIMMONDS J: I am just having a look now at his caveat. It is certainly true that the nature of the caveatable interest does indeed refer to interest as judgment creditor in the default judgment obtained on 10 October 2002.
STOKES, MR: Yes.
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STOKES, MR: Yes.
SIMMONDS J: But leave to enforce it was set aside. As I understand it, though, the default judgment remains on foot. Is that not the case?
STOKES, MR: That's correct, yes, your Honour. There were two applications made by Mrs Hall when she was alive to set that aside, that were unsuccessful for various reasons. They were never determined on their merits. She simply failed to appear on one occasion - in fact, on both occasions I think.
SIMMONDS J: Right, and so there are amounts owing to each of Spunter and Mr and Mrs Hall, undifferentiated it would seem, that represent the amounts ordered to be paid under the default judgment. Correct?
STOKES, MR: Yes.
SIMMONDS J: I'm a little uncertain, leaving aside perhaps what is a red herring that I might have allowed to surface - it seems to me it's not entirely clear why for this purpose I need to concern myself with the setting aside of the leave to enforce. The default judgment is a form of recognition that there's an amount owing; that the amount is owing to Mr Hall amongst other people; that the first call document is one in his favour as well as Spunter's favour and his wife's favour; and he's lodged a caveat in respect of that interest. The caveat in respect of Spunter's caveatable interest has been removed.
STOKES, MR: Yes.
SIMMONDS J: But this is a different caveat.
STOKES, MR: Yes.
SIMMONDS J: And he seeks the opportunity to put forward evidence and argument with respect to that.
STOKES, MR: Yes. With respect, that's the correct position of Mr Law.
SIMMONDS J: Yes.
STOKES, MR: We would say that whatever view is taken of the default judgment, it does not give rise to a caveatable interest in the property. It is a money ‑ ‑ ‑
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SIMMONDS J: Well, the default judgment might not, but it's not relied on, if I've understood it correctly, for that purpose. What is relied upon, at least I'm extrapolating here, is the - well, it's a little uncertain, is it not?STOKES, MR: Yes.
SIMMONDS J: Is:
The estate or interest, equitable interest, judgment creditor and default judgment claims the estate or interest by virtue of a series of loans paid to Nancy Cloonan Hall in an agreement first dated 1 November 2000, to take the form of an informal will ‑
I'm not quite sure I understand that but ‑
that guarantors Morris shall have first call on my estate.
The caveatable interest appears to be one arising under two - or to have sources, perhaps might be one way of putting it - the default judgment and the loan document, the loan document, of course, being the subject of other proceedings. If I've understood Master Sanderson's basis for proceeding as he did, with respect to the Spunter caveat, it was that caveatable interest couldn't stand against a prior first mortgage interest, and he removed it on that basis. Does the first mortgage interest continue to subsist?
STOKES, MR: No. The learned master did not make a determination as to the caveatable interest apart from the interest of Audrey Hall who was the first mortgagee.
SIMMONDS J: Yes.
STOKES, MR: He simply held her estate - she inherited a mortgage that had a priority.
SIMMONDS J: Yes.
STOKES, MR: Caveatable interest couldn't subsist as against that mortgage; therefore that caveat must fall away.
SIMMONDS J: Right.
STOKES, MR: That was the limit, if you like, of Master Sanderson's determination, as I read his Honour's decision.
SIMMONDS J: Yes. The Court of Appeal, of course, did not concern itself with the Spunter caveatable interest. It was concerned with Mr Chin's caveatable interest, and it
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Leaving the Court of Appeal's judgment aside then, because it doesn't speak to Mr Law, I'm left then with - if I have to approach it on the evidence before me today - an amount which appears to be owing to Spunter and the Halls, a default judgment for which there is no present leave to enforce, but nonetheless an underlying debt or obligation of some kind, and an instrument the validity of which is not challenged before me, at least as far as I understand it, by which there is an interest in the nature of a first call, whatever that is, over properties including the Hazelmere property in respect of that debt.
If I were to be thinking about caveatable interests and the like, and I were to be advancing towards considering the merits rather than the application simply to adjourn, I might on the face of it have a little difficulty setting Mr Law's claimed interest aside readily at least. Why do you say that there is simply nothing here which Mr Law has shown as a basis for adjournment and the collection of further evidence and the like, in the face of what might in that face be something in the nature of caveatable interest?
STOKES, MR: Any rights in relation to the deed have now been subsumed in the judgment, because of the enforcement of the - it's the rights to a debt that have been encapsulated in the judgment that's now been granted - the default judgment in the District Court proceedings. There were not declarations as to rights pursuant to the deed determined in the judgment. There was merely a money sum.
SIMMONDS J: Yes.
STOKES, MR: And that was pursuant to the rights derived under the deed, and there's been no attempt to enforce any rights under the deed separate to the claim for the money sum as against the estate. You also have the fact that there has been a transfer of the Hazelmere property now to Ms Michelle Marie Gannaway as beneficiary of the intestate estate out of the estate itself. Is your Honour familiar at all with the process under which Ms Gannaway became administrator of the estate, because of the fact there was an intestacy?
SIMMONDS J: No, I'm not. I was also made rather uncertain as to how she came to be the registered proprietor of the Hazelmere property.
STOKES, MR: I'm not sure that we ‑ ‑ ‑
SIMMONDS J: I'm not sure that that's set out in the affidavit. No, I don't believe that it is. There were at
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STOKES, MR: Yes, you can, your Honour.
SIMMONDS J: Yes.
STOKES, MR: You'll see page 8 of her affidavit has the copy of the certificate of title.
SIMMONDS J: Yes, that's correct. I've seen that.
STOKES, MR: Yes, and that is - it's not purported to be held by her in her capacity as administrator of the estate.
SIMMONDS J: No.
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SIMMONDS J: Yes. Perhaps I should say that my working hypothesis was that if by the administration of the estate, then there was a transfer of some kind from the estate to her. That's what you're telling me did, in fact, take place.
STOKES, MR: I'm telling you that, your Honour, but you don't have that in affidavit before you.
SIMMONDS J: I don't have it in the material, no.
STOKES, MR: No.
SIMMONDS J: All right. I've noticed that she was registered on 12 October 2010.
STOKES, MR: Yes.
SIMMONDS J: That would tend to indicate, or might indicate, that there was a transfer of some kind registered on that date.
STOKES, MR: And you'll see on the same date, your Honour, the first encumbrance of the mortgage to Police and Nurses Credit Society.
SIMMONDS J: Yes, and that the two caveats - one by Mr Chin and one by Mr Law - were both subsequent to that transfer and that mortgage. Sorry, you were going to ‑ ‑ ‑
STOKES, MR: No. I was saying that fact really concluded my part of that submission; that there has been, in effect, a disbursement of the assets of the estate in relation to the transfer to Ms Gannaway. This is a matter that has been on foot certainly since October 2010, so that any claim that may be held pursuant to this deed - and I don't accept, with respect, that there is a caveatable interest, but any caveatable interest that may arise would be against the assets of the estate and not against property that has been transferred out of the estate.
And dealing, of course, with the technical issue that if it's being asserted that it's not as a judgment creditor but as some form of equitable chargee pursuant to this deed document, that is not the way that the estate or interest has been framed in the caveat that's been lodged.
SIMMONDS J: Yes.
STOKES, MR: And that would, with respect, be a very different form of claim to that claimed because clearly
the interest that Mr Law was claiming was pursuant to the
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default judgment, and that is further borne out by the nature of the requisitions that were issued against him by the Landgate officers. If I could, for instance, take you to page 122, on the requisition notice at the top you'll see the requisition there noted:
The caveator makes a claim as judgment creditor in the default judgment obtained on 10 October 2002 in District Court 2509 of 2002.
They go on to observe:
This may not be a caveatable claim and a judgment made in the District Court could create a claim as chargee. However, you will need to seek legal advice -
and a reference to the Imperial Judgments Act.
SIMMONDS J: Yes.
STOKES, MR: That perhaps highlights that that was what was perceived to be the nature of the caveatable claim, and a claim harking back to the deed would be a claim of a different nature to that stated.
SIMMONDS J: Yes.
STOKES, MR: Le Miere J in a decision late last year, which I can send down to your Honour's associate, made comment that where a claim of a completely different nature is being sought, that amendment may be as to the nature of the claim being an absolute or subject to claim, but the court is loath to allow an amendment to a caveat to make a claim of a very complete nature to that asserted in the caveat that was lodged. As I understand it, these submissions go to the question of the adjournment.
SIMMONDS J: Yes. I'm to some extent concerned with the underlying merits in order for me to get a proper appreciation of the basis upon which at least Mr Law seeks time. You have certainly put to me that in your submission there is simply nothing Mr Law could put on at any time that would be sufficient for the purpose of resisting or for showing the relevant cause.
Mr Law's position is, of course, distinct from that of Mr Chin. We need to deal with Mr Chin, I think, in a moment. We've dealt with him, as it were, to some extent already. You also put to me that what's involved in the pending settlement is such that it is simply not in
accordance with the balance of convenience to do otherwise in view of that state of the possible evidence, and to make the order for removal that's sought. Correct?
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SIMMONDS J: Mr Law has put at least one possible solution to the difficulty he faces, as well as the difficulty your client faces, might be to permit the sale to go ahead - this doesn't, of course, reach Mr Chin - but with a set‑aside of the proceeds for further argument about the proceeds.
STOKES, MR: That's a different claim, your Honour.
SIMMONDS J: Yes, indeed it is.
STOKES, MR: That would be a claim in which Mr Law would have to issue proceedings.
SIMMONDS J: Indeed he would.
STOKES, MR: As your Honour would be fully familiar ‑ ‑ ‑
SIMMONDS J: Yes.
STOKES, MR: - - - the notion of a constructive trust in relation to the sale proceeds is - - -
SIMMONDS J: Indeed.
STOKES, MR: - - - not a claim of a caveatable interest in the property.
SIMMONDS J: No, exactly - I understand that. I'm simply thinking through the implications of what it is that Mr Law is proposing. It's not the case, is it, reaching for recollections of past judgments in this area, that it is beyond the scope of the orders possible under the Transfer of Land Act for an order for removal to be made on condition - I'm thinking here - - -
STOKES, MR: 138C.
SIMMONDS J: Yes, 138C, subsection (2). Paragraph (a), of course, requires that the court be satisfied the caveator's claim has or may have substance, and paragraph (b):
If not satisfied the caveator's claim has or may have substance, shall dismiss the application.
There doesn't seem, as it were, to be an intermediate point, does there?
STOKES, MR: No.
SIMMONDS J: No.
STOKES, MR: With respect, there isn't.
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STOKES, MR: This has been the subject of a couple of decisions. Jenkins J delivered one about two or three years ago where she was faced with the difficulty that the parties wanted her to make a decision, but they had agreed amongst themselves that, subject to her decision, they would set the moneys aside.
SIMMONDS J: Right.
STOKES, MR: She said that would affect the balance of convenience, but other than that, it has no impact on whether there is a caveatable interest in the property.
SIMMONDS J: No, I agree. Yes.
STOKES, MR: As I said, with respect, in response to that I'd say Mr Law has his remedies; if he wishes to bring proceedings, to seek to injunct the proceeds of sale. That's his option, to test his claim to a constructive trust in relation to the sale proceeds.
SIMMONDS J: Yes.
STOKES, MR: Cook J in a decision a couple of weeks ago in a case I appeared in, Como
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STOKES, MR: Yes.
SIMMONDS J: If I find of course in that material a matter which would establish the arguable case that there is a caveatable interest, so be it, and if there is not, so be it also. We haven't quite reached that point yet. If an adjournment were to be granted I take it it would be your submission that any such adjournment would need to be of a very short-term character so as to leave room for the settlement of the sale that is due to take place about a week and a few days from now. Correct?
STOKES, MR: Yes, if your Honour pleases, Wednesday, 17 August is our sort of absolute drop-dead date.
SIMMONDS J: All right. Of course there needs to be an affidavit - service of the originating process in this case in any event so far as Mr Law is concerned, although Mr Law has not taken objection to the point of service. He has accepted it occurred around the middle of July.
STOKES, MR: Yes.
SIMMONDS J: Your point with respect to the matter of the caveatable interest resting on, I think it's the 1 November 2000 deed, is that no caveatable interest is in fact claimed, as it were, directly on that; rather the caveatable interest is said to arise out of the default judgment and its relationship to that deed. Correct?
STOKES, MR: Yes.
SIMMONDS J: And as leave to enforce that judgment has been set aside, pending determination in an appeal where the appeal has not yet been determined and there is no stay that has been ordered, you would say no caveatable interest is capable of arising and therefore there's no evidence that can be put on - which Mr Law could reasonably be expected to put on - in respect of that matter.
STOKES, MR: Yes, that is our position, your Honour.
SIMMONDS J: For that purpose my attention would need to be drawn to whatever the relevant authorities are. You would say that the claim to a caveatable interest cannot be
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understood in any other way, or should not be understood in any other way, and no amendment should be allowed in respect of that caveat so far as that particular character of the interest is concerned. We're going back here to page 104.STOKES, MR: Being Mr Law's caveat?
SIMMONDS J: Yes, indeed.
STOKES, MR: Yes. May I say the decision I was thinking when I referred to Le Miere J is the decision of Palazzo Homes v Goh (2010) WASC 407 and that dealt with the nature of amendment of caveatable interest and the very limited bases upon which a court would typically grant an amendment.
SIMMONDS J: I'm aware there is of course a controversy - or at least a live issue that has been raised - in respect of whether the statutory declaration can be read with the caveat in order to determine the nature of the caveatable interest claimed and the question that arises here in respect of the way in which the state or interest being claimed alongside note 5 relates to the matter by virtue of which that caveatable interest arises alongside note 6. I don't know because I don't recall directly at least from Goh whether his Honour Le Miere J went into that kind of distinction.
STOKES, MR: No, I don't think he did. I think he was looking at the description of the nature of the caveatable interest and whether you could amend the description, such as from a constructor - a beneficiary under a constructive trust to a chargee.
SIMMONDS J: Yes, right.
STOKES, MR: That sort of example.
SIMMONDS J: Yes.
STOKES, MR: He didn't go onto the matter you have identified, your Honour.
SIMMONDS J: Yes. It seems to me that this one is a little, if I may say so, trickier than that disjuncture. The result isn't the same, but it's not as easily set aside, given the character of the constructive trust interest and the character of an equitable charge interest. If Mr Law was to be granted an adjournment, I presume that the adjournment could not last later than the end of this week.
STOKES, MR: I think we would need that, yes. I think we would still need a day or two to get service if we were to be successful - service of the order on the registrar of
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SIMMONDS J: Yes.
STOKES, MR: To enable that to be discharged, so we would need Monday and Tuesday.
SIMMONDS J: Yes. I would have thought that was the case. If there were to be no further adjournment granted - let's just say for a hypothetical hearing on Friday, and I should immediately say that I haven't yet determined the application for the adjournment - then Friday would be the day on which the merits of the application would fall to be determined.
STOKES, MR: Yes, well, certainly from the plaintiff's perspective we would need that to be done on that date.
SIMMONDS J: Yes, I can understand that. It would be of assistance to the court of course to understand a little more about how Ms Gannaway's interest in the Hazelmere property was derived. At present it has to be inferred from the face of the certificate of title and if I have understood what you put to me a moment ago it is of no small significance that Ms Gannaway's interest is derived from a transfer by the estate that occurred before the caveats were lodged, where the caveatable interests relied upon are in respect of matters arising before that transfer and therefore in respect of which I take it there is an indefeasibility - fairly straightforward - argument that's being put up.
STOKES, MR: Yes. We don't rely solely on that.
SIMMONDS J: No.
STOKES, MR: We do rely on the default judgment and other matters but, yes, that is a matter that would need to be put before you.
SIMMONDS J: Yes. At present, if I may say so, it's not squarely or clearly before me. Unless there is anything further with respect to Mr Law, that brings us back to Mr Chin.
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STOKES, MR: By Mr Chin, do you ‑ ‑ ‑
SIMMONDS J: No, but by - Master Sanderson as I understand it ordered the removal of not one but two caveats, did he not?
STOKES, MR: No.
SIMMONDS J: Perhaps I'm wrong.
STOKES, MR: No. I think he only ordered the removal of Mr Chin's.
SIMMONDS J: Mr Chin's.
STOKES, MR: Yes.
SIMMONDS J: I see, all right. So far as the ‑ ‑ ‑
STOKES, MR: Sorry, sorry to interrupt. Sorry, your Honour. Yes, he did order the removal of Spunter's caveat as well.
SIMMONDS J: Spunter's caveat. Right. He didn't order the removal of any caveat by Mr Hall because Mr Hall hadn't lodged any such caveat. Is that correct?
STOKES, MR: Do you mean Mr Hall or Mr Law?
SIMMONDS J: I'm sorry, Mr Law.
STOKES, MR: Yes, Mr Law had not lodged a caveat.
SIMMONDS J: That's right.
STOKES, MR: Yes.
SIMMONDS J: That's right. So, so far as Mr Law is concerned, there is no question of res judicata arising out of Master Sanderson's decision, let alone the Court of Appeal's decision.
STOKES, MR: No. With respect, that's right, your Honour.
SIMMONDS J: So far as Mr Chin is concerned, those issues do arise, do they not?
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STOKES, MR: Yes. We would say they do quite squarely.SIMMONDS J: Right.
STOKES, MR: His claim in relation to the caveat that he lodged against the estate was based on an argument of salvage, and that he had in some way - his legal cost, his legal efforts had in some way assisted Nancy Hall in the preservation of her estate, and that his efforts had enabled Ms Hall to protect her estate.
SIMMONDS J: That takes us to his caveat which is in the Gannaway affidavit at pages 9 to 10. Is that right?
STOKES, MR: I think so, your Honour.
SIMMONDS J: Yes. That's in MMG2. Here of course I do have an affidavit of service properly completed. Mr Chin has provided the indications that he has with respect to why it is that he's not present here today, and hasn't put the matter on today. If I've understood the character of his caveatable interest correctly, he has in respect of the determinations that he didn't have - or rather that his earlier caveat should be removed, a caveat which appears to be - although I don't have a copy of it, I don't think - very similar to this one.
STOKES, MR: Yes.
SIMMONDS J: It might be useful to me to have a copy of that earlier caveat unless you can draw my attention to a reproduction of its terms in any of the decisions.
STOKES, MR: I was just wondering if - the Court of Appeal sometimes usefully sets out - no. All we would have is the summary that Master Sanderson provides, to be found at paragraph 5 of his reasons on page 62 of the affidavit, your Honour.
SIMMONDS J: Page 62, and I'm sorry, which paragraph?
STOKES, MR: Paragraph 5.
SIMMONDS J: 5, right, thank you. All right. Yes.
STOKES, MR: It appears to be based again - what that shows in that summary of what the caveatable interest claim was, it's referenced to section 244 of the Legal Practice Act.
SIMMONDS J: Yes.
STOKES, MR: Which is the same section that Mr Chin seeks to rely on his present caveat.
SIMMONDS J: Yes.
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SIMMONDS J: Yes, and as I understand it, he seeks to meet the orders made by Master Sanderson for removal of his earlier caveat, and orders which were - and an appeal against the making of which was dismissed by the Court of Appeal, and special leave refused by the High Court on the basis of matters set out in his statutory declaration at MMG3. Is that correct?
STOKES, MR: Yes, which is really - when one looks at the declaration - an attempt to relitigate the same issues.
SIMMONDS J: I can understand why that appearance might be something that you would derive from the document. As I understand it, he has launched proceedings in respect of the Court of Appeal's decision, and presumably Master Sanderson's decision as well, to the extent that it's bound up with the Court of Appeal decision, and that a decision has been made by an officer of this court in respect of those proceedings. Is that correct? That's Sleight C's decision.
STOKES, MR: It is, yes, which is at MMG8, pages 83 and following.
SIMMONDS J: Is that decision itself the subject of an appeal at present?
STOKES, MR: I don't know, your Honour.
SIMMONDS J: I see.
STOKES, MR: I can't advise on that. I didn't have a look to see whether there was an appeal pending notation.
SIMMONDS J: All right. You would say, I take it, that so long as the Court of Appeal's decision stands, and given that special leave was refused, it would take an extraordinary set of circumstances for such a decision to be set aside - extraordinary in the literal sense: out of the ordinary, unusual, not common. And you would say on the basis of that, and the identity or degree of similarity between the caveat of Mr Chin ordered to be removed previously, and the present caveat, that there is simply no cause that can be shown.
STOKES, MR: Yes. Whether or not an adjournment is granted, it can't be dealt with. We would say just that, your Honour. The matter has been determined in a way that nothing that Mr Chin could now produce could add anything to that position.
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STOKES, MR: Yes.
SIMMONDS J: If Mr Law's application for an adjournment were to be granted, you would, I presume, at least as a first argument, be putting to me that there is no reason not to reject Mr Chin's application for an adjournment. But even were, as it were, the two applications to be dealt with in the same terms, there is no adequate justification for an adjournment to be granted longer than the Friday that we've indicated?
STOKES, MR: Certainly. Yes, Friday would be our absolute extension.
SIMMONDS J: Yes. And the only matter in respect of which it would be of assistance to the court to have additional material in respect of Mr Chin, apart from, I take it, the position in respect of Ms Gannaway, that would also obtain so far as Mr Chin is concerned. So the indefeasibility argument would be the same for Mr Chin as it is for Mr Hall.
STOKES, MR: Yes.
SIMMONDS J: Leaving that off to one side, it would be of assistance to the court, and to the parties perhaps, to have evidence as to the caveat that was originally lodged by Mr Chin and it was therefore ordered to be removed.
STOKES, MR: Well, yes.
SIMMONDS J: In fact, that it may not be provided is neither - it's obviously not something the court is stipulating for but it would be, as with the transfer or the way in which Ms Gannaway obtained her position, it might be a matter that the court found to be of some significance.
STOKES, MR: For the sake of completeness it would be useful for the court to know how Mr Chin originally framed his application for his caveat.
SIMMONDS J: Right, his caveat, yes.
STOKES, MR: This is all being considered in the absence of Mr Chin - - -
SIMMONDS J: Indeed, it is.
STOKES, MR: - - - making any formal application, putting in any affidavit material - - -
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SIMMONDS J: Yes, indeed.STOKES, MR: - - - and in circumstances where he bears the onus of showing why the caveat ought be extended.
SIMMONDS J: Yes.
STOKES, MR: I know that the court, as it is always concerned to ensure, that parties be given every opportunity, but Mr Chin has not chosen to come here today ‑ ‑ ‑
SIMMONDS J: No.
STOKES, MR: - - - to identify any of these issues on his own behalf - - -
SIMMONDS J: Indeed.
STOKES, MR: - - - where we say both the balance of convenience and the onus is on him.
SIMMONDS J: Yes.
STOKES, MR: So it's always helpful to have as complete a picture as the court can be presented with, so I couldn't cavil at that.
SIMMONDS J: Yes.
STOKES, MR: Whether it's necessary for the purpose of an adjournment, I would say it's not, given what the courts have determined.
SIMMONDS J: Yes. So you would recur to the point with which you began your submissions, that Mr Chin had received notice of these proceedings now more than two weeks ago; indeed, more than three weeks?
STOKES, MR: Yes, three.
SIMMONDS J: And that Mr Chin had received notice against the backdrop of an extensive history in relation to the nature of the interest that he's claiming as a caveatable interest. Furthermore, unlike the position, perhaps, of Mr Law, Mr Chin is an admitted legal practitioner. As far as I know his admission remains on foot.
STOKES, MR: I do understand it is. There may be conditions attached to his practising certificate.
SIMMONDS J: Yes.
STOKES, MR: But I do understand he's still an admitted practitioner.
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STOKES, MR: None. On my calculations, Mr Chin has had 27 days. It's just under a month.
SIMMONDS J: Yes, it sounds about right. Just one moment. We're just pulling out the communications from Mr Chin.
STOKES, MR: Yes, if your Honour pleases.
SIMMONDS J: My associate reminds me that Mr Chin's communication with the court seems to have been on the same day he was served with notice of the originating process. That was not drawn to my attention as it seems to have gone up from listings to my chambers while I was away on leave the week before last. I'm not sure that affects the point. I just simply insert it for historical completeness.
STOKES, MR: Yes.
SIMMONDS J: I'm sorry, I think I cut you off at one point.
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SIMMONDS J: I see.
STOKES, MR: I am in a position to proceed with the argument on the merits in relation to Mr Chin, if you needed to hear that in terms of assessing whether or not the adjournment should be granted, but I would have thought that ‑ ‑ ‑
SIMMONDS J: Yes. I think you've certainly made sufficient submissions, it seems to me, for that purpose.
STOKES, MR: Yes.
SIMMONDS J: The matter with which I'm grappling at present to explain for your benefit, and perhaps for anything further you would wish to say briefly by way of response, is that any adjournment in relation to this matter would have to be relatively brief. It would have to run no longer than till Friday morning, and I'm assuming I'm available then, and I'm assuming you're available then.
STOKES, MR: I'll make myself available, your Honour.
SIMMONDS J: Yes. In fact, it would have to be Thursday afternoon in terms of my availability.
STOKES, MR: Right.
SIMMONDS J: All right. What I'm grappling with is this: it seems to me that it would be of considerable assistance to the court to have Mr Law have an opportunity to revisit or review his decision whether or not to use professional assistance. It seems to me this is a matter in respect of which Mr Law is very much in need of professional assistance. If he's unable to obtain it by Thursday afternoon so be it, and it may well be either that he is unable to obtain professional assistance, or such professional assistance as he is able to obtain can't be deployed fast enough for the purpose of a hearing then.
In relation to Mr Law, there are matters of a kind that have been reviewed in the exchange I've had with you that would be the subject of the transcript of today. Production of the transcript may not be possible much before the opening of business tomorrow. I'm just simply not certain on that account. It would, as I say, however, be of considerable assistance to the court in relation to Mr Law to have that, but it seems to me Mr Law has had some time with the material.
Mr Law is of course a person who's had the benefit of the substantial history in relation to these proceedings,
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which while not the same benefit that Mr Chin as a professional has derived from that history, isnonetheless something that will have equipped Mr Law to respond in some fashion or another - in fact, he's begun to do so - to the nature of the case put against him; the nature of the case that he would have to put up to show that he has an arguable claim to a caveatable interest in respect of the caveat he's lodged.
So far as Mr Chin is concerned, the case is much more difficult it seems to me, for an adjournment. Mr Chin has all of the advantages that you've described, including some that Mr Law does not enjoy. There is, however, a significant overlap between the issues Mr Law would have or might have a further opportunity to ventilate, and those that Mr Chin would have an opportunity to ventilate, and I'm thinking here in particular of the indefeasibility point; that is to say that Ms Gannaway was a person who received a transfer, and the consequence of that is that whatever interests might have been opposed to the registered proprietor earlier could not be opposed to her.
I would therefore, I must admit, be inclined - if I was going to accede to Mr Law's application for an adjournment, but grant it only through to Thursday afternoon, assuming he still wanted an adjournment on that basis - be inclined to grant the application for an adjournment to Mr Chin, but in exactly the same terms, through to Thursday afternoon at 2.15.
STOKES, MR: I accept that, for the sake of completeness on the plaintiff's position, indefeasibility point against Mr Chin would be of assistance.
SIMMONDS J: Yes.
STOKES, MR: But we certainly don't require it.
SIMMONDS J: No. I can understand that.
STOKES, MR: Yes.
SIMMONDS J: You might decide not to put it up.
STOKES, MR: Yes. I accept that obviously if we file the affidavit in relation to the transfer from the estate to Ms Gannaway ‑ ‑ ‑
SIMMONDS J: Yes.
STOKES, MR: - - - we would ‑ ‑ ‑
SIMMONDS J: There would be a slightly difficult matter of how that affidavit might be made available to Mr Chin, although Mr Chin ‑ ‑ ‑
8/8/11 STOKES, MR 39
SIMMONDS J: - - - it appears is communicating with the court and passing on communications to you, as I understand it ‑ ‑ ‑
STOKES, MR: I think he has been copying the correspondence, yes.
SIMMONDS J: - - - by facsimile transmission.
STOKES, MR: Email.
SIMMONDS J: By email, is it?
STOKES, MR: I think I've been getting them by both actually. Yes, so certainly he's been communicating to me by email.
SIMMONDS J: Which would then be a means by which the material could be provided to him.
STOKES, MR: Yes. Yes, we could certainly serve him any additional material that we were to file.
SIMMONDS J: Yes, all right. Is there anything further you would wish to say to me about the application for an adjournment. I appreciate this has now taken some considerable time.
STOKES, MR: It has. No, your Honour, I suppose if Mr Law were to be granted the adjournment, we would want some little time prior to the adjourned hearing to consider whatever materials he were to put up.
SIMMONDS J: Yes.
STOKES, MR: Now, there's not going to be a lot of time. We'll need to deal with it as best we can.
SIMMONDS J: Right.
STOKES, MR: But if there were to be a direction by close of business on Wednesday that any material be filed and serve, that would assist us to assist the court in dealing with that material.
SIMMONDS J: And in fact there would be a similar - what would be the appropriate programming order with respect to material from you?
STOKES, MR: Lunchtime tomorrow, I think.
SIMMONDS J: Yes. My associate reminds me Friday afternoon is a possibility, which gives us a little more time. How does that work from the plaintiff's standpoint?
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SIMMONDS J: It would be a not‑before 2.30 matter because there's a judgment delivery I'll be doing that afternoon.
STOKES, MR: Right. Certainly from my perspective, yes, your Honour.
SIMMONDS J: All right. Mr Law, you've heard an exchange between myself and Mr Stokes that's been quite lengthy. The reason for the length is twofold: first, there is a party to the proceedings who's not present here today, Mr Chin, and I have been endeavouring to take account of the matters that he has raised in his correspondence. It would have been far better had he himself been present here today, or had provided material that the court could have employed that was in addition to or substitution for the correspondence from him. In addition, of course, you are not legally represented, and there are some matters of a little technical nicety, if I can put it that way - they're not altogether straightforward - that need some reflection.
STOKES 41
I am inclined, Mr Law, to grant you an adjournment, but only a short one. The reason why it's only a short one is because you were served some weeks ago. There is a background to all of this, which I have presumed - in fact you have indicated yourself is a correct presumption - you are aware of. Finally, and perhaps most importantly, there is a looming sale of the Hazelmere property that the caveat would, on the face of it, potentially jeopardise.
Now, it's subject to claim caveat, but nonetheless there is a potential for jeopardy of the sale there, which would warrant giving the plaintiff its opportunity to put to me argument why you have not shown cause for your caveat to be extended. You also heard Mr Stokes remind me - and this is clear from the statute - that there is a burden of proof on you, as well as on Mr Chin, to show that you have a caveatable interest of the kind you claim.
It's not for Mr Stokes to disprove such an interest. It is rather for you to show an arguable case, a case of some arguable character - it doesn't have to be a finally convincing of me, but it must be an arguable case that you have the caveatable interest you claim. Those matters - particularly the last - the caveatable interest argument and some of the technical matters that I referred to, strongly indicate the wisdom of you obtaining legal assistance.
The court is not ordering you to obtain such legal assistance - it can't, nor should it. It is, however, strongly commending to you that you should have legal assistance and if this matter is adjourned through to Friday afternoon, this coming Friday afternoon, for the court to work with whatever material it has by then - and I will get back in a moment to what that material might be - you would be much assisted, perhaps critically assisted, by having legal advice. If, however, you do not either choose to seek it or succeed in obtaining it, then so be it.
I appreciate, Mr Law, that you would have wished a much longer adjournment than the one I am proposing. This is your opportunity to say whatever more you wish to say about that, but you've had the benefit of my inclination, if I can put it that way - my disposition thus far. Yes?
LAW, MR: Sir, I understand these places are a court of justice.
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12.30
SIMMONDS J: Yes.LAW, MR: I have lent the money. I have handwritten notes of Ms Hall, in agreeing to give me first call on her estate.
SIMMONDS J: Yes.
LAW, MR: The property went on the market, let's say December-January. Why have they waited for the last moment to take my caveats off? Why didn't they go back into January when they put the property on the market? Now they're giving me a month to defend my caveats. Why didn't they go to remove the caveats - because it's trickery. These people give me short time all through the case with dealing with Mr Stokes.
I've got there where Judge Sweeney says next time the short time comes to pass appeal or delay it. Now, a week's delay in front of the sale of this property isn't going to be enough for even an experienced solicitor, barrister, anything, to deal with it. I've got to go from here and find somebody that will take it on and will proceed to put my defence in.
I just can't believe that solicitors can work on this business. They're supposed to be an officer of the court, an honest person. I haven't met one honest solicitor yet, sorry, but that's the case. It's just wait till the last minute. I've had papers handed in court, which is wrong. You know they're supposed to be an officer of the court, which is supposed to be good.
I have been waiting 10 years for my money. Here they are wanting to wait a month to sell the property to somebody that's made an offer; you know, handwritten notes to say I will get my money. Now, it's going to be thrown out because there's no time to wait for this sale. Let them wait. I've waited 10 years and now they want to turn around and sell it in four weeks.
I would like the chance to let them wait a month - a month. A week is not going to do anything to get stuff put together and come back to court. There was no proof of the original mortgage. I would like to say my proof of those deeds - see, you don't want to go to a solicitor. It was a simple thing. I was gracious in giving this lady money. She would have had her properties taken off the council, so I lent $24,000 straight off like that.
She signed that she would owe it and it's not being acknowledged. Is this justice? One block has been sold and there was no recognition of my debt. Ms Gannaway has had all that evidence. Nancy Hall borrowed, pinched, $500,000 and run away with it, put it under the carpet. It might have been in the house when Ms Gannaway went through
8/8/11 LAW, MR 43
I have been waiting since January, say, and now they come up, giving me four weeks' notice to lift my caveats. Well, I should have five months of - this should have been held five months ago. "We're putting the property on the market. We want the caveats lifted." Do it back then, not now. Mr Stokes has done that in all the time I've been here. I haven't had all my mail replied, so what's the difference.
The sale of Mount Lawley
STOKES, MR: Your Honour, I'm hesitant, but I'm going to interrupt here because I'm hearing a lot of material, a lot of it quite insulting towards my client. None of it is of assistance to your Honour, with great respect ‑ ‑ ‑
SIMMONDS J: Mr Stokes, you will appreciate that I'm allowing Mr Law some opportunity to speak as he is a self‑represented litigant. I propose shortly to indicate to Mr Law what I would conclude, if anything, from all of that.
8/8/11 LAW, MR 44
SIMMONDS J: Perhaps if there is something further you would wish to then say, I'd be more than willing to hear it.
STOKES, MR: I don't want to extend it any further.
SIMMONDS J: Yes, all right, thank you. Mr Law, the difficulty that I face is that there are a variety of ways in which concerns that you have about money you've lent that's not been properly accounted for paid back might be dealt with. This is only one of a potential set of proceedings that raise issues of that kind. What do I mean by that? I mean this: that you have claimed an interest in property in Hazelmere, and you've indicated what the basis of that claim is in your caveat.
Unless you are able to show, by evidence or argument or both, that there is an arguable basis for that claim and the fact that you lent money and it hasn't been paid back, is not of itself an arguable basis. It might be part of an arguable basis because others may have lent money to Mrs Hall and the fact that they lent money to Mrs Hall and it hasn't been paid back doesn't necessarily mean that they have an interest in her property.
Your claim is set out in your caveat. The way the caveat is worded is of particular importance. You will have heard me have an exchange with Mr Stokes about that. That's part of the reason why it's important that you consider carefully your determination not to have legal assistance because legal assistance would enable you to review what it is that needs to be put up if an arguable case - - -
LAW, MR: I'll get legal representation. I'll get ‑ ‑ ‑
SIMMONDS J: Yes. Just one moment, Mr Law. The second point is this: removal of caveat proceedings are relatively short time frame ones because they are not final determinations of whether you have an interest in property. They are whether you have an arguable case that you have an interest in property. If you have an arguable case, then your caveat will not be removed, but other orders may be made, for example, requiring you to commence proceedings to finally establish you have the interest that you claim. You, Mr Hall, would be familiar with that from what happened back in 2006 with Spunter and its caveats.
It is for that reason that the time frames here are not unreasonable. It is for that reason that I do not conclude that there has been any sharp practice here in
relation to the way in which this matter has been brought before me.
8/8/11 STOKES, MR 45
12.40
You have made a number of points to me that you would wish an opportunity to develop in an argument before the court in order to show there is - and I repeat - an arguable basis for a claim of an interest in the property. That's a less burdensome task than establishing that you do, in fact, have that interest. It's that you have an arguable basis for claiming it.Your caveat was lodged, if I remembered it correctly, back in February 2011 against a history of a substantial nature concerning moneys lent, default judgments obtained and the like. What I am proposing to do in view of the nature of what it is you would wish to put before me is to give you a little more time to put it before me, but not a lot. The little more time is to Friday afternoon. By Friday afternoon there will be a hearing at which a determination will be made about an arguable basis for your claim, for Mr Chin's claim.
If there is additional material that you would wish to have put before the court, and again I would urge on you the wisdom of seeking professional assistance in that regard, to assist you in how to put the material before the court in affidavit form, for example, although you're familiar with affidavits, you've sworn them before, and you've prepared them yourself, as I understood it, without legal assistance, then you will have that opportunity by that time.
I am proposing - and I'll need to hear from Mr Stokes again - that there will be a program for provision of material. The program is designed to ensure that both parties have the chance to look at any additional material they would wish to put - all three parties have a chance to look at what additional material is to be put before the court in enough time to think about it and have a response, if possible, at the hearing. As I say, the hearing would occur Friday not before 2.30 pm.
I'm going to ask Mr Stokes about his suggestions for deadlines for additional material, if any, and I'm not requiring it.
STOKES, MR: We'd like until midday tomorrow to file any further affidavit.
SIMMONDS J: Right.
STOKES, MR: And I can say that that will be limited to the issue of Mr Chin's caveat and the transfer of land from the estate of Ms Gannaway.
SIMMONDS J: Is it the plaintiff's proposal to file
written submissions?
STOKES, MR: It is. I had, in fact, come along today with
8/8/11 STOKES, MR 46
assumption of it being on an undefended basis. But yes, we would file submissions. I'm happy to do it this way: file the submissions with the affidavit tomorrow at the same time.
SIMMONDS J: Right.
STOKES, MR: And I say this for the transcript and for Mr Law's benefit: upon him filing any affidavit material, I may choose to file some further short submissions and that may only be on the morning of Friday.
SIMMONDS J: Right.
STOKES, MR: I would not want Mr Law to be getting up complaining about the late service of documents because I did that. That would be responsive to matters that he may be raising.
SIMMONDS J: So there might be responsive submissions that were filed say by 10 am Friday morning?
STOKES, MR: Yes.
SIMMONDS J: And they would be responsive to material filed by Mr Law or, indeed, perhaps by Mr Chin?
STOKES, MR: Yes, your Honour.
SIMMONDS J: All right. Anything further of a programming character?
STOKES, MR: No. I think if we asked that any responsive material be filed by 4 pm on Thursday.
SIMMONDS J: Yes.
STOKES, MR: I think that was my understanding of what your Honour was proposing.
SIMMONDS J: Yes. Perhaps we shouldn't call it responsive material. It's just material.
STOKES, MR: Yes.
SIMMONDS J: Yes, all right. Now, Mr Law, the proposal is that Mr Stokes would have until midday tomorrow to provide any additional affidavit material he would wish the court to consider in determining the application by the registered proprietor, Ms Gannaway, to have the - - -
LAW, MR: That's to me and the court, is it?
SIMMONDS J: To you, the court and Mr Chin.
8/8/11 LAW, MR 47
SIMMONDS J: And that in addition, by midday tomorrow, Mr Stokes would provide any written submissions. Indeed, I believe he's indicated he's likely to file written submissions, which will be a written account or explanation of the argument that he proposes to make why the orders he seeks should be granted. I remind you the burden of proof is on you, as it is on Mr Chin, so his written submissions will be about presumably why in his submission that burden of proof has not or, indeed, cannot be discharged. That will be the argument he would be making.
So far as you are concerned and Mr Chin is concerned, you would have until 4 pm on Thursday to file with the court and serve on Mr Stokes any additional material that you would wish the court to consider in the form of affidavit evidence and in the form of any written submissions you wish to make.
STOKES, MR 48
That doesn't prevent him orally responding and that may be the way he would wish to do it, but that is a facility that he has asked the court to allow. Do you understand all of that? In a moment I will explain what is meant perhaps, with Mr Stokes's assistance, by service of your affidavit and any written submissions - how you would do that and how, for that matter, Mr Chin's position would be dealt with.
LAW, MR: Going on his past performances I think I'll get them handed to me in court. It doesn't give me much chance to review them and think how I can address them, but I'll get this legal advice. Whether I get them to come to court, as well - I'll see what their schedule is.
SIMMONDS J: Yes. Let me say Mr Stokes has indicated as an officer of the court that that is the time line that he will follow, so you have already got the affidavit of Ms Gannaway; that's the substantial document that we have been referring to repeatedly. You have also got a copy of the original application and notice that got this going. What we're talking about is any further affidavit.
LAW, MR: Yes.
SIMMONDS J: And any further affidavit, Mr Stokes says, will be provided by midday tomorrow to you and to Mr Chin. In addition, with that, will be written submissions; submissions by Mr Stokes, explaining why the orders should be made that he seeks. You have a corresponding opportunity to provide affidavit evidence to Mr Stokes, copy to Mr Chin, by a later time, 4 pm on Thursday, this coming Thursday - by 4 pm then you provide that material.
Just as you would complain if affidavit or written submissions turned up later than that so Mr Stokes could complain if affidavits from you, or written submissions from you appear late.
LAW, MR: I have given plenty of notice all along.
SIMMONDS J: Yes. You understand all of that.
LAW, MR: Yes.
SIMMONDS J: We now just need to clarify with Mr Stokes how service might be properly effected. Mr Stokes?
8/8/11 LAW, MR 49
12.50
STOKES, MR: I think in the circumstances a facsimile should suffice to ensure that all the parties at least get it immediately.SIMMONDS J: So a facsimile to Mr Law. You have a facsimile machine, Mr Law?
LAW, MR: It's not working too good. Can I have emails?
STOKES, MR: Email? I'm happy to serve by email.
SIMMONDS J: All right, and your email address, Mr Law?
LAW, MR: He has it, but it's ‑ ‑ ‑
SIMMONDS J: All right.
LAW, MR: - - - moza35@bigpond.com.
SIMMONDS J: Very well. I take it you can receive documents in PDF form?
LAW, MR: Yes, sir.
SIMMONDS J: Very good. Now, so far as service on you, Mr Stokes ‑ ‑ ‑
STOKES, MR: I am happy for it to be by email or facsimile.
SIMMONDS J: I take it you would prefer email, Mr Law?
LAW, MR: Yes, sir.
SIMMONDS J: So you have the capacity to scan documents and things of that kind?
LAW, MR: Yes.
SIMMONDS J: And you have Mr Stokes's email address?
LAW, MR: Yes.
SIMMONDS J: All right, thank you, Mr Law, for the moment. So far as Mr Chin is concerned, I think we had determined earlier, had we not, that email to him is the best way to proceed?
STOKES, MR: I think by email and fax, just to be safe.
SIMMONDS J: All right.
STOKES, MR: I have both.
SIMMONDS J: All right, both them. So far as your material is concerned, Mr Law, it would be appropriate to
8/8/11 LAW, MR 50
LAW, MR: Yes, sir.
SIMMONDS J: All right.
LAW, MR: We spoke earlier about the transcript - you thought that it might take till tomorrow morning.
SIMMONDS J: Indeed, and in fact it could well take later than that, so I have deliberately abstained from saying anything more about that. It seems to me that we will endeavour to ensure that the transcript is generated as quickly as possible and once it's generated the parties will be made aware of its availability, but because of the very short time frame I think we must proceed as I have indicated we will primarily proceed, by submissions and affidavits from the plaintiff by midday tomorrow and from you and from Mr Chin by 4 pm on Thursday.
LAW, MR: I appreciate the crunch time. I would just like to reiterate that they have had the property on the market; they have known of my caveats and I think that I should ‑ ‑ ‑
SIMMONDS J: Yes, I have heard what you have had to say on that account, Mr Law, thank you, and I have taken account of it while balancing the other considerations that I have described, including the nature of the proceedings for removal of a caveat. Are there any other matters of a procedural kind?
STOKES, MR: There is, your Honour.
SIMMONDS J: Apart from reserving the costs of today, of course.
STOKES, MR: You have pre-empted me. I was going to say the defendants have come along today, seeking an indulgence of the court.
SIMMONDS J: Yes.
STOKES, MR: It was not a short service application which they would be entitled to an adjournment or reply. This was an indulgence granted to Mr Chin in his absence; an indulgence granted to Mr Law, having been served with the documents for 27 days. We have spent nearly three hours, or two and a half hours, on this application, which will be as long, I suspect, as the hearing itself.
SIMMONDS J: Yes.
STOKES, MR: I respectfully submit that the defendants
8/8/11 STOKES, MR 51
SIMMONDS J: Yes, thank you. I don't propose to make any other costs order today than costs reserved for this reason: I have treated what Mr Chin put before me as an application for an adjournment, not unreasonably, I think, but it seems to me that if there is something to be said against the application you make, which seems to me to be a strong one, if I may put it that way, Mr Chin should have an opportunity to put whatever submissions he would wish.
So far as Mr Law is concerned - who has been personally present here today, although that basis doesn't as readily obtain - Mr Law should have the opportunity to say whatever he would wish to say as to why the costs of today should not be paid by him. For his benefit, in the case of an indulgence - and it undoubtedly is an indulgence to allow time - the normal order would be that the parties seeking that indulgence would pay the cost of the hearing today, and it has been an unusually long hearing in relation to an adjournment.
Given that Mr Law is not legally represented and given that he is considering, at the very least, as I understand him, seeking legal representation it seems to me that that is a matter, with respect, to which legal advice may also be of considerable assistance to him. However, I would clearly signal that I am strongly drawn to an order of the kind Mr Stokes has suggested, without making it today, allowing for whatever further submissions might be put to me with respect to it on Friday.
STOKES, MR: If your Honour pleases.
SIMMONDS J: Thank you.
LAW, MR: Thank you, sir.
AT 1 PM THE MATTER WAS ADJOURNED ACCORDINGLY
8/8/11
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