IN THE MATTER OF S. 138 OF THE TRANSFER OF LAND ACT, 1893 WA
BETWEEN
MICHELE-MAREE-GANNAWAY PLAINTIFF
AND
NICHOLAS NI KOK CHIN FIRST DEFENDANT
AND
MAURICE FREDRICK LAW SECOND DEFENDANT
REGISTRAR OF TITLES THIRD DEFENDANT
------------------------------------------------------------------------------------------------------------OUTLINE OF WRITTEN SUBMISSIONS BY NICHOLAS NI KOK CHIN IN DEFENCE AGAINST PLAINTIFF’S ORGINATING MOTION TO REMOVE BOTH THE CAVEATS OF THE FIRST AND SECOND DEFENDANTS SWORN AND DATED 12TH DAY OF AUGUST, 2011.
DATE OF DOCUMENT: 11TH AUGUST, 2011
FILED ON BEHALF OF: THE SECOND DEFENDANT:
DATE OF FILING: 11TH AUGUST, 2011.
PREPARED BY:
Nicholas Ni Kok Chin Phone: 06 92757440
No. 387, Alexander Drive Emails: nnchin1@gmail.com; nnchin@msn.com
Dianella WA 6059
THE POWERS OF THE PLAINTIFF
1. The Plaintiff is the administrator and therefore the trustee of the estate of her late mother Nancy Cloonan Hall (deceased since January, 2008) by virtue of the former being the only surviving issue of the latter. The latter did not leave the former a formal will nor an informal will but the latter did leave an informal will to the Second Defendant. The Plaintiff is therefore a residuary beneficiary of the said estate of the latter only if all creditors claim of the said estate have been fully satisfied. As a corollary, the former as a trustee of the latter’s estate has fiduciary obligations towards the creditors of the latter’s estate. It is common knowledge that if the former were to steal from the said estate without discharging fully her fiduciary obligations as trustee of the latter’s estate, a criminal offence under the provisions of the Criminal Code Act 1913 (WA) as amended[1] would have been committed by the former . Therefore the rights of the purchaser of the land referred to in paragraph 1 of the Plaintiff’s Submission dated 9.8.2011 is subservient to the rights of the legitimate creditors of the said estate (the disposal rights of the trustee).
2. The Plaintiff has only the disposal rights of the trustee but she has acted contrary to those rights by entering into the contract with the purchaser of the land referred to in the said paragraph 1 for which the Chin and the Law Caveats referred to in paragraph 2 of the Plaintiff’s Submission are already in place to prevent such transactions from occurring. Therefore the Plaintiff by entering into the contract for the sale of the said land is doing so at her own peril as this is forbidden by the criminal coder[2]. The right thing for the Plaintiff to do now is to postpone the sale of the said land and settle all outstanding debts of the creditors of the said estate before she can consider disposing of the said land (the rights of the Plaintiff to dispose of the caveat land).
3. Notwithstanding the disposal rights of the trustee and the rights of the Plaintiff to dispose of the caveat land, the Plaintiff has already disposed of the Mt. Lawley Property of the said estate and this is the triggering event when the just emoluments of the First Defendant as the salvour of the said estate should have been paid first. The Plaintiff has not performed this part of her fiduciary obligations as trustee of the said estate. Besides, the Plaintiff has taken a mortgage for some $702,000.00 over the caveat land to pay to her aunty Audrey Frances Hall referred to in paragraph 8 of the Plaintiff’s Affidavit sworn 9.8.2011[3]. The Plaintiff therefore has disposed of property which is not hers to dispose of and the Criminal Code forbids it.[4] The fact that the Plaintiff is an administrator of the said estate appointed by the Supreme Çourt of Western Australia does not entitle her by way of probate to steal the said land unless and unless all creditors’ claims have been settled[5].
NATURE OF THE CAVEATABLE INTERESTS – CHIN
4. With reference to paragraph 3 of the Submission of the Plaintiff, the First Defendant has equitable interests and therefore caveatable interests in the salvaged property namely the Mt. Lawley Property and the Hazelmere Property ( the said land) both of which is the subject of the Çhin and the Law Caveats (the two properties).
5. The Chin caveat is preceded by the Chin First Caveat referred to in paragraph 4 and marked as Annexure MMG 18 in the Affidavit of the Plaintiff dated 9.8.2011. The First Defendant entered into a contract with the said Nancy Hall to remove the Spunter Pty Ltd Caveats in CIV 1142 of 2005 from the two properties which mission has already been fulfilled by the First Defendant on 11.2.2006 which culminated in the falsifications of the court records in CIV 1131 of 2006. Spunter is the corporation of the Second Defendant. Spunter in this action is synonymous with Second Defendant or Law (the mission of First Defendant in Spunter).
6. The mission of the First Defendant in Spunter has been achieved by the First Defendant on 11.2.2006 and it is not correct that my learned friend Anthony Prime as solicitor for Mrs. Audrey Frances Hall in CIV 1775 of 2008 achieved that mission in Spunter on 29.10.2008 as pronounced in the judgment of Master Sanderson who also incorrectly said that the First Defendant did nothing as salvour[6] for the two properties. This judgment is the subject of my Appeal in CACV 107 of 2008 for which the Court of Appeal had delivered its near perfect decision. Since then I have made an application in CIV 1877 of 2010 for Owen JA’s refusal to receive the fresh evidence of Registrar Powell found at page 136 of the Yellow Appeal Böok to be perfected. Commissioner Sleight has delivered his decision on 15.6.2011 with specific directions on how this case shall and could be proceeded further. I have acted on this cue by filing an application to efface the errors of law apparent on the court records in this appeal judgment on 15.7.2011and the matter is pending[7]. See also my detailed argument as to why the fresh evidence of Registrar Powell if accepted by the Court of Appeal as fresh evidence would have vindicated my case at my blogspot at: http://nicholasnchin.blogspot.com/2011/06/invoices-and-receipt-obtained-from.html.
One could also read at the blogspot the effects of the other inconsistent judgments of the Court of Appeal which avoided the issues before it and which did not provide cogent statement of reasons for its decision. Once the error of law has been effaced from the court records, my mission would have been completely fulfilled (my mission as salvour is accomplished).
7. My mission as salvour is accomplished could have happened earlier but the Plaintiffs has caused me to work incessantly and she had refused to pay me my just emoluments and this has caused my salvour’s professional fees to accumulate to the extent of some $110k and is continuing….. This sum would have to be paid from the sale of the said land as I have first priority to be so paid. The Plaintiff by refusing to pay me my just emoluments is now criminally liable for disposing of the Mt. Lawley Property from the estate of the said Nancy Hall (the criminal responsibility).
SUMMARY REMOVAL OF CAVEAT
8. I have discharged my onus to show to this court in the manner as indicated above that I have a serious question to be tried as to whether a caveatable interests exists in that there is a sufficient likelihood of my claim succeeding to justify the preservation of the status quo pending trial and the balance of convenience favour s the maintenance of the caveat (my onus discharged).
FORM OF CAVEAT
9. Forms and procedural law does not really matter as they are adjectival law and it is for the court to advise the litigants if they are in error; what really matters is the substantive law: Will I get paid my just emoluments for my fair days work under conditions of necessity to defend my caveats and my caveatable interests and as salvour for the two properties having regard to the fact that my onus has been discharged in so far as the Çhin’s Caveat is concerned? The Court of Appeal has said yes to this question. The job that was assigned to me by Nancy Hall is to accomplish my mission and I am the salvour to that extent in so far as the mission of First Defendant on Spunter is concerned which has been accomplished (the effect of my mission).
10. As for the Law Caveats, it is for the court to decide that the effect of my mission and how and whether it has enabled the rights of Law as the creditor of Nancy estate to be forfeited by the negligent and malicious act of David Taylor acting as solicitor for Law against me in the falsification of the court records in CIV 1131 of 2006 by enlisting the help of the judicial officer Registrar Powell and thereby caused David Taylor and Registrar Powell to assume responsibility for that loss and the extent of that loss. Law will have to institute a separate legal action against David Taylor and the Registrar in order to enable the court to ascertain the current liability of the estate of Nancy Hall to Law as its legitimate creditor (the separate action).
11. Independent of that separate action and the effect of my mission, the Plaintiff would need to put an advertisement in the media calling for all creditors of the late Nancy Hall to stake a claim on the estate of the late Nancy Hall (discharge of other creditors).
12. The Court will have to make an order for my just emoluments as salvour of the estate of the late Nancy Hall to be paid to me before the separate action and the discharge of other creditors is finalized as I have a priority to be paid as the salvour ( the satisfaction of the salvour).
CHIN CAVEAT SHOULD NOT BE REMOVED UNTIL AFTER THE SATISFACTION OF THE SALVOUR
13. Chin has filed his Affidavit in support of his Application in CACV 107 of 2008 to EFFACE THE ERRORS OF LAW APPARENT ON THE FACE OF THE COURT RECORDS dated and sworn 15th day of July, 2011 that has been accepted for filing and has been lodged with the Court of Appeal and is pending approval, in the manner as described above.
14. The balance of convenience does not favour the removal of the Chin’s Caveat as described above.
THE NATURE OF THE LAW CAVEATABLE INTERESTS:
15. The Spunter’s Caveats have been removed by the mission of the First Defendant in Spunter that was caused by the said falsification of the court records of David Taylor working in cohort with judicial officer Registrar Powell in the manner as described above which is a fraud upon the court and upon the Second Defendant (the fraud).
16. It is the responsibility of this court to unravel that fraud as it must not remain within the court records as it is an error of law apparent on the face of the court records which must be effaced from it (the responsibility of this court).
17. The fraud and the responsibility of this court must therefore give effect to the rights of the Second Defendant against the perpetrators of the fraud i.e. David Taylor and Registrar Powell. This does not mean that the estate of the late Nancy Hall must be unjustly enriched by the fraud although the perpetrators of the fraud must bear some responsibility for the consequences of that fraud i.e. Nancy ‘s estate had suffered some irreparable loss as a result of its being unable to proceed with its proposed and scheduled business plan during the lifetime of Nancy Hall. This loss must be compensated for by the perpetrators of the fraud and therefore the Plaintiff may join the Second Defendant in the separate action as given by the directions of Commissioner Sleight in CIv 1877 of 2010 ( the joint action).
18. Therefore, the Law Caveat must remain to protect the Second Defendant’s equitable interests and therefore caveatable interests in the estate of the late Nancy Hall as the Second Defendant had at all material times been contributing to the growth of that equitable interests in the said land for which the Law Caveat as distinguished from the Spunter’s Caveats which has been removed by the mission of the First Defendant in Spunter ( Nancy’s estate not to unjustly enriched).
19. The Salvour First Defendant is continuing to work for the estate of Nancy Hall in order to achieve a final outcome so as to confer the residuary interests of that estate on the Plaintiff. It is in the interests of the Plaintiff to join force with the Second Defendant in the joint separate action against her Aunt Audrey Frances Hall and the perpetrators of the fraud on the ground that Nancy did not owe her brother the late Kenneth Duncan Hall any monies due on that fictitious mortgage nor to Áudrey Frances Hall (the continuing responsibility of the First Defendant).
SUMMARY REMOVAL OF THE LAW CAVEAT:
20. The Law Caveat is not to be summarily removed based on the considerations argued above.
21. The Affidavit of the First Defendant in support of his application for the effacement of the error of law on the court records in CÄCV 107 of 2008 filed and sworn 15.7.2011 as indicated above speaks for itself in so far as it concerns the caveatable interests of the Second Defendant.
THE SIGNATURE OF THE FIRST DEFENDANT AS A LITIGANT IN PERSON ACTING UNDER CONDTIONS OF NECESSITY AS THE SALVOUR OF THE ESTATE OF THE LATE NANCY HALL.
[1] 371. Term used: steal
(1) A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person any property, is said to steal that thing or that property.
(2) A person who takes anything capable of being stolen or converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say —
(a) An intent to permanently deprive the owner of the thing or property of it or any part of it;
(b) An intent to permanently deprive any person who has any special property in the thing or property of such special property;
(c) An intent to use the thing or property as a pledge or security;
(d) An intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;
(e) An intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion;
(f) In the case of money, an intent to use it at the will of the person who takes or converts it although he may intend to afterwards repay the amount to the owner.
The term special property includes any charge or lien upon the thing or property in question, and any right arising from or dependent upon holding possession of the thing or property in question, whether by the person entitled to such right or by some other person for his benefit.
(3) The taking or conversion may be fraudulent, although it is effected without secrecy or attempt at concealment.
(4) In the case of conversion, it is immaterial whether the property converted is taken for the purpose of conversion or whether it is at the time of the conversion in the possession, control or management of the person who converts it. It is also immaterial that the person who converts the property is the holder of a power of attorney for the disposition of it, or is otherwise authorised to dispose of the property.
(5) When the property converted has been lost by the owner and found by the person who converts it, the conversion is not deemed to be fraudulent if at the time of the conversion the person taking or converting the property does not know who is the owner, and believes, on reasonable grounds, that the owner cannot be discovered.
(6) The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act.
(7) In this section, property includes any description of real and personal property, money, debts, bank credits, and legacies and all deeds and instruments relating to or evidencing the title or right to any property or giving a right to recover or receive any money or goods and also includes not only such property as has been originally in the possession or in the control of any person but also any property in which or for which it has been converted or exchanged and anything acquired by the conversion or exchange, whether immediately or otherwise.
[2] 375. Money received for another
When a person receives, either alone or jointly with another person, any money on behalf of another, the money is deemed to be the property of the person on whose behalf it is received, unless the money is received on the terms that it shall form an item in a debtor and creditor account, and that the relation of debtor and creditor only shall exist between the parties in respect of it.[3] I believe the Second Defendant is disputing this issue.
[4] 375. Money received for another
When a person receives, either alone or jointly with another person, any money on behalf of another, the money is deemed to be the property of the person on whose behalf it is received, unless the money is received on the terms that it shall form an item in a debtor and creditor account, and that the relation of debtor and creditor only shall exist between the parties in respect of it.[5] 376. Stealing by persons having an interest in the thing stolen
When any person takes or converts anything capable of being stolen, under such circumstances as would otherwise amount to stealing, it is immaterial that he himself has a special property or interest therein, or that he himself is the owner of the thing taken or converted subject to some special property or interest of some other person therein; or that he is lessee of the thing; or that he himself is one of 2 or more joint owners of the thing; or that he is a director or officer of a corporation or company or society who are the owners of it.
[6] LEGAL PRACTICE ACT 2003 - SECT 244
244 . Legal practitioner’s costs to be a first charge on the property recovered or preserved
(1) In every case in which a legal practitioner is employed to prosecute or defend any suit, matter or proceeding in a court, the practitioner —
(a) is entitled to a first charge upon the property recovered or preserved; and
(b) has a prior right to payment out of the property recovered or preserved for the taxed costs, charges and expenses as between practitioner and client of or in reference to the suit, matter or proceeding.
(2) The court before which the suit, matter or proceeding has been heard or is pending, or judge of the court in chambers, may make ex parte any order for taxation of, and for raising and paying the costs, charges and expenses referred to in subsection (1)(b) out of, the property as the court or judge thinks just and proper.
Although s.244 is of the repealed Act, but its effect is being survived by s.607 of the Legal Profession Act, 2008 which provides as follows:
LEGAL PROFESSION ACT 2008 - SECT 607
607 . Actions before the commencement day that continue to have effect
(1) This section applies to an action taken, however described, by — (a) the Board, in relation to a person or the person’s practice certificate before the commencement day, other than an action dealt with in another section of this Part; or
(b) the Complaints Committee or the Law Complaints Officer in relation to a person whether the action is taken before or after the commencement day.
(2) The action, and any rights or entitlements the person has in relation to that action, continue to have effect under this Act subject to —
(a) any conditions stated in a document by which the action was taken in relation to the person, or in a notice given to the person about the action; and
(b) this Act.
(3) To the extent of any inconsistency among provisions applying to the action, this Act prevails.
(a) if the action, right or entitlement involves an appeal to the Supreme Court or a proceeding before the Court started before the commencement day — without limiting the power of the Supreme Court, the Court may direct how that action, right, entitlement or proceeding should be continued; or
(b) if the action, right or entitlement involves an application for review to the State Administrative Tribunal or a proceeding before the Tribunal started before the commencement day — without limiting the power of the State Administrative Tribunal, the Tribunal may direct how that action, right, entitlement or proceeding should be continued; or
(c) otherwise — a regulation made under section 637 may provide for the way the action, right or entitlement is to continue under this Act.
[7] See the annexed documents marked as MFL1 and MFL2 to the Affidavit of the Second Defendant sworn filed and dated 10.8.2011.
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