CHIN - [2019] WASCA 116

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CHIN [2019] WASCA 116
CORAM:   MITCHELL JA
BEECH JA
JENKINS J

HEARD:   7 AUGUST 2019
DELIVERED          :   7 AUGUST 2019
PUBLISHED           :   7 AUGUST 2019
FILE NO/S:   CACV 88 of 2018
BETWEEN:   PAUL CHUNG KIONG CHIN
Appellant

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   VAUGHAN J
File Number             :   CIV 2074 of 2018

Catchwords:

Practice and procedure - Appeal against refusal of leave to file and issue originating summons - Whether originating summons an abuse of process or frivolous or vexatious - Where evidence relied on is incapable of establishing claim of the benefit of an easement or restrictive covenant - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 67 r 5

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant

In person

Solicitors:

Appellant

In person

Case(s) referred to in decision(s):

Ives [2019] WASCA 86
Re Rules of the Supreme Court 1971 (WA); ex parte Gates [2018] WASC 213
Walton v Gardiner (1993) 177 CLR 378

REASONS OF THE COURT:

We dismissed this appeal at the conclusion of the hearing on 7 August 2019, and indicated that we would publish reasons later. These are our reasons for dismissing the appeal.

Background and primary proceedings

The appellant appeals against the order of the primary judge dismissing his application for leave to file and issue a proposed originating summons in the General Division of this court.
The following facts, indicated by the evidence before the primary court, were assumed by the primary judge (who did not make any final and conclusive findings of fact in the absence of the intended defendants).
The appellant is the registered proprietor of a strata lot (which it is convenient to refer to as Unit 1) at a property in Malaga. Unit 1 is part of a development of units undertaken at the Malaga property in 1997 by St Marks Investment Co Pty Ltd (St Marks). On 19 December 1997, St Marks obtained planning approval for the development of a lunch bar at the Malaga property. At some time, the appellant operated a lunch bar from Unit 1, before selling the business to a third party, who on-sold the business to the intended defendants. From 2010 to 2015, the intended defendants operated a lunch bar at Unit 1 under a lease granted by the appellant.
Following the expiry of that lease, the intended defendants have, from about 14 February 2016, operated a lunch bar at the Malaga property from another strata lot in the same strata plan (which it is convenient to refer to as Unit 10). The intended defendants had purchased Unit 10 earlier in 2016, after applying for and obtaining planning approval to convert its use from 'general' to 'lunch bar'.
By the proposed originating summons, the appellant sought to claim that Unit 1 enjoyed the benefit of an easement or restrictive covenant requiring…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] WASCA 116
Decision Date: 7 AUGUST 2019

CaseChat Overview and Summary

The matter before the court was an appeal against the refusal of leave to file and issue an originating summons. The applicant, Mr. Chin, sought to establish an easement or a restrictive covenant over a neighbouring property owned by the respondents. The primary judge had determined that the originating summons was an abuse of process, frivolous or vexatious, and thus refused leave to file and issue it. The applicant appealed this decision to the higher court.

The legal issues before the court were whether the originating summons was an abuse of process, frivolous or vexatious, and whether the evidence relied upon by the applicant was capable of establishing a claim for the benefit of an easement or a restrictive covenant. The court had to consider the nature of the evidence provided and assess its relevance and sufficiency in establishing the applicant's claims.

The court held that the evidence relied upon by the applicant was incapable of establishing the claimed easement or restrictive covenant. The evidence did not demonstrate any significant interference with the applicant's use and enjoyment of his property, nor did it establish any historical or contemporary basis for the claimed rights. The court found that the primary judge's conclusion that the originating summons was frivolous or vexatious was not an abuse of process, and therefore upheld the decision to refuse leave to file and issue the summons. The appeal was dismissed.

The court did not make any specific orders beyond dismissing the appeal. The applicant was left to consider alternative legal avenues to address any grievances he might have regarding the use of the neighbouring property.

Orders