Chin v Hall

[2009] WASCA 216

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   CHIN -v- HALL [2009] WASCA 216

CORAM:   McLURE P

OWEN JA
BUSS JA

HEARD:   12 AUGUST 2009

DELIVERED          :   9 DECEMBER 2009

FILE NO/S:   CACV 107 of 2008

BETWEEN:   NI KOK (NICHOLAS) CHIN

Appellant

AND

AUDREY FRANCIS HALL as Executrix of the Estate of KENNETH DUNCAN HALL
First Respondent

SPUNTER PTY LTD
Second Respondent

THE REGISTRAR OF TITLES
Third Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MASTER SANDERSON

Citation  :AUDREY FRANCIS HALL as executrix of the estate of KENNETH DUNCAN HALL -v- CHIN [2008] WASC 255

File No  :CIV 1775 of 2008

Catchwords:

Legal practitioners - Rights and privileges - Statutory charge for legal costs incurred in proceedings resulting in recovery or preservation of property - Whether property 'recovered or preserved' - Turns on its own facts

Legislation:

Legal Practice Act 2003 (WA), s 244

Result:

Appeal dismissed
Application to adduce further evidence dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

First Respondent           :     Mr A M Prime

Second Respondent      :     No appearance

Third Respondent          :     No appearance

Solicitors:

Appellant:     In person

First Respondent           :     McCallum Donovan Sweeney

Second Respondent      :     No appearance

Third Respondent          :     No appearance

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

Australian Electrical Electronics Foundry & Engineering Union Western Australia Branch v Hamersley Iron Pty Ltd (1998) 19 WAR 145

CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172

Davies v Lewis [2001] NTSC 105; (2001) 11 NTLR 81

Foxon v Gascoigne (1874) LR 9 Ch App 654

Franich v Swannell (1993) 10 WAR 459

Gower v Woodman Sales Pty Ltd [1988] 2 Qd R 15

Greer v Young (1883) LR 24 Ch D 545

Hall v Chin [2008] WASC 255

Hall v Hall [2007] WASC 34

Hall v Hall [2007] WASCA 94

Law v Hall [2005] WADC 75

Law v Hall [2008] WASCA 257

Law v Hall [2008] WASCA 257 (S)

Law v Hall [2009] WASCA 86

Michell Sillar McPhee (A Firm) v First Industries Corporation [2006] WASCA 24; (2006) 32 WAR 1

Spunter Pty Ltd v Hall [2006] WASC 6

Spunter Pty Ltd v Hall [No 2] [2007] WASC 239

Wollongong Corporation v Cowan (1955) 93 CLR 435

1. McLURE P:  I agree with Owen JA.  However, I wish to reserve my position on the question whether, even if the caveat was not in fact extended, the properties were relevantly recovered or preserved by the proceedings in which the appellant acted for the purposes of the Legal Practice Act 2003 (WA), s 244(1).

   OWEN JA: 

Introduction

1. This is an appeal against a decision of a master granting the first respondent, Audrey Hall, summary judgment for the removal of a caveat lodged by the appellant, Chin.  The appellant's caveat was lodged over two properties in order to protect a statutory charge which he said arose under the Legal Practice Act 2003 (WA) by virtue of legal work he did in connection with those properties. The appellant also applies for leave to adduce further evidence in the appeal. Because of the myriad actions and proceedings related to this dispute and to avoid confusion, I will refer to the appellant as 'Chin'.

Background facts

1. The facts of this case are complex because they are part of a long running and convoluted dispute involving, relevantly, two parallel sets of litigation: an action between Audrey Hall and Nancy Hall (CIV 2073 of 2003) and proceedings between Maurice Law, Cheryl Law and Spunter Pty Ltd, on the one hand, and Nancy Hall on the other (CIV 2509 of 2002, CIV 1142 of 2005 and CIV 1131 of 2006).  I will set out the facts in chronological order rather than deal with each of the sets of litigation separately.

2. Nancy Hall was the registered proprietor of two properties (together 'the properties'):  one in Mount Lawley and one in Hazelmere.  There was a registered first mortgage over the properties in favour of Engineering Facilities Pty Ltd which secured a $350,000 loan made to Nancy Hall in 1992.

3. In December 1994 Kenneth Hall, Nancy Hall's brother, lent Nancy Hall $374,107 to pay the money then owing under the mortgage to Engineering Facilities Pty Ltd.  As security for the loan he took a transfer of the mortgage from Engineering Facilities Pty Ltd.  On 12 December 1994 the transfer of the mortgage was registered and Kenneth Hall became the registered first mortgagee of the properties.

1. In 1995 Nancy Hall became bankrupt.  She completed a Statement of Affairs which listed Kenneth Hall as a secured creditor and acknowledged that she owed him at least $500,000.  On 28 April 1995 Kenneth Hall lodged a proof of debt with the bankruptcy trustee claiming that he held the first mortgage security in respect of a loan of $374,107 and accrued interest of $18,387 to 28 April 1995.

2. On 5 October 2000 Maurice Law and Cheryl Law (the Laws) and the second respondent, Spunter Pty Ltd (Spunter) (of which the Laws were the directors), executed a deed in which they agreed to lend Nancy Hall $24,000.  On 4 November 2000 the Laws, Spunter and Nancy Hall executed a second deed which modified the earlier deed and provided that the Laws and Spunter would have 'first call' on the properties (second deed).

3. On 9 August 2001 Kenneth Hall died.  Earlier that year he had executed his last will appointing Audrey Hall, his wife, sole executor and sole beneficiary of his estate.  Probate was granted on 6 February 2002.

4. On 26 July 2002 Spunter lodged two caveats on the properties.  On 10 September 2002 the Laws and Spunter commenced CIV 2509 of 2002 in the District Court and issued a writ against Nancy Hall claiming liquidated damages consequent on a breach of the second deed.  On 20 September 2002 the writ was served on her.  On 10 October 2002 judgment in default of appearance was granted in favour of the Laws and Spunter in the sum of $144,871 plus interest and costs.  A writ of fieri facias was issued by the Laws and Spunter in respect of the judgment amount, but the writ was returned unexecuted.  A writ of fieri facias against land was then issued and filed with the Registrar of Titles.

5. On 6 March 2003 Audrey Hall served a default notice on Nancy Hall pursuant to the mortgage.  The notice alleged that Nancy Hall had failed to pay the principal sum and interest due under the mortgage.  A letter of demand requiring repayment or vacant possession of the properties was left unsatisfied and on 3 September 2003 Audrey Hall commenced CIV 2073 of 2003 in the Supreme Court in which she claimed the money outstanding under the mortgage and possession of the properties.

6. On 9 February 2005 Spunter commenced CIV 1142 of 2005 in the Supreme Court in which it sought the extension of the two caveats that had been lodged over the properties in July 2002. 

7. On 2 March 2005 Nancy Hall filed a chamber summons in the District Court to set aside the default judgment made in October 2002 in favour of the Laws and Spunter in CIV 2509 of 2002.  Nancy Hall's application was dismissed by a registrar of that court on 8 March 2005.  On 18 March 2005 Nancy Hall filed a fresh application in the District Court to set aside the default judgment but that application was dismissed by Groves DCJ on 1 April 2005:  Law v Hall [2005] WADC 75.

8. In the following months Nancy Hall applied on two further occasions to set aside the default judgment, but on both occasions the application was dismissed (on 22 April 2005 by Sleight DCJ and on 31 May 2005 by Registrar Kingsley).  On the second of those occasions, Nancy Hall was represented by counsel.

9. On 21 June 2005 Nancy Hall appointed Chin (the appellant) as her solicitor in CIV 1142 of 2005.

10. On 19 December 2005 Jenkins J heard Spunter's application to extend its two caveats over the properties in CIV 1142 of 2005.  The application was opposed by Nancy Hall, who was represented by Chin.  On 20 January 2006 Jenkins J extended the caveats on the condition that Spunter commence proceedings within 21 days to determine whether it had an equitable charge over the properties by virtue of the second deed:  Spunter Pty Ltd v Hall [2006] WASC 6.

11. On 7 February 2006 Chin lodged a caveat over the properties.  According to Chin, he lodged the caveat because he had come to the conclusion in late 2005 that Nancy Hall, his client, was not going to pay him for his legal services.  The purpose of him lodging his caveat over the properties was to protect his solicitor's lien.

12. On 10 February 2006 the Laws and Spunter commenced CIV 1131 of 2006 in the Supreme Court and issued a writ against Nancy Hall claiming, among other things, a declaration that the second deed created an equitable charge. The commencement of the action fulfilled the condition that Jenkins J had imposed on the extension of the caveats in CIV 1142 of 2005.  On 14 March 2006 Nancy Hall entered an appearance and indicated that she was legally represented by Chin.  On 11 May, however, a notice of solicitor having ceased to act was filed, and on 3 November 2006 Nancy Hall filed a notice indicating her intention to act in person.  That action has become inactive, having been stayed before the close of pleadings.

13. I return now to CIV 2073 of 2003, the action between Audrey Hall and Nancy Hall.  In August 2006, the trial for payment of money under the mortgage and possession of the properties commenced before Jenkins J.  Nancy Hall was unrepresented.  After Audrey Hall presented her case, the trial judge adjourned the hearing to allow Nancy Hall to prepare her defence.  But when the trial resumed in November Nancy Hall failed to appear.  On 19 February 2007 Jenkins J awarded judgment in favour of Audrey Hall for the principal sum of $374,107 plus interest at the agreed rate of 15% per annum, resulting in a total judgment sum of $2,301,010.  She also ordered that Nancy Hall deliver up possession of the properties:  Hall v Hall [2007] WASC 34.

14. In March and April 2007 Nancy Hall brought several applications in the Supreme Court in relation to CIV 2509 of 2002, CIV 2073 of 2003 and CIV 1142 of 2005.  On 23 March 2007 she applied in CIV 1142 of 2005 to remove Spunter's caveats over the properties and to set aside the default judgment given in the District Court in October 2002.  On 27 March 2007 in CACV 53 of 2007 she filed an appeal notice out of time against the orders that Jenkins J had made on 19 February 2007 for the payment of moneys and delivery up of possession of the properties to Audrey Hall.  On 12 April 2007, in the same appeal, she applied for a stay of execution of Jenkins J's orders.

15. Those applications were, for the most part, unsuccessful.  On 27 April 2007 McLure JA dismissed the application for a stay of Jenkins J's orders and adjourned the application for an extension of time within which to appeal:  Hall v Hall [2007] WASCA 94. To date, there has been no hearing to determine that application. On 19 October 2007 Simmonds J dismissed Nancy Hall's application to remove Spunter's caveats over the properties and to set aside the summary judgment: Spunter Pty Ltd v Hall[No 2] [2007] WASC 239.

16. On 13 January 2008 Nancy Hall died.

17. On 30 June 2008 Audrey Hall brought an action in CIV 1775 of 2008 against Chin and Spunter seeking the removal of their caveats over the properties.  She sought the removal of the caveats so as to be able to sell the properties under the powers contained in the mortgage.  On 14 August 2008 Audrey Hall brought an application for summary judgment against Chin and Spunter.

18. Audrey Hall's application for summary judgment was heard by Master Sanderson on 29 October 2008.  The application was granted and Chin's caveat was ordered to be removed immediately, with reasons to be published at a later date.  These are the orders the subject of the appeal.  On 5 November 2008 the master published his reasons:  see Hall v Chin [2008] WASC 255. The master also granted summary judgment against Spunter and ordered that its caveats be removed immediately. As will become apparent, Spunter was dissatisfied with these orders.

19. For completeness, I should make some mention of what occurred after the master granted Audrey Hall's application for summary judgment.

20. On 4 November 2008 in CACV 106 of 2008 Maurice Law filed an appeal against the master's orders granting summary judgment and directing that Spunter's caveats be removed immediately.  Law claimed to be appealing on behalf on Spunter.  The gravamen of his complaint was that Spunter was never informed of the hearing of the application and, in any event, the mortgage held by Audrey Hall was a 'fictional' document.  The appeal was dismissed on 4 December 2008 by Pullin and Buss JJA on the basis that it had no reasonable prospect of success:  Law v Hall [2008] WASCA 257.

21. On 13 December 2008 Maurice Law made an application for the court to recall the judgment dismissing his appeal on the ground that he had been dealt with unfairly by the court.  The application to recall the judgment was dismissed on 20 January 2009 by Pullin and Buss JJA:  Law v Hall [2008] WASCA 257 (S).

22. On 22 January 2009 in CACV 100 of 2008 the court heard an application by Maurice Law for an extension of time within which to appeal against the orders that Jenkins J had made on 19 February 2007 for the payment of moneys and delivery up of possession of the properties to Audrey Hall.  The basis of the appeal was that Spunter, rather than Audrey Hall, had the first mortgage on the properties.  The application was refused and the appeal dismissed by McLure and Pullin JJA on 15 May 2009:  Law v Hall [2009] WASCA 86.

23. As at the date of this appeal hearing, neither the Mount Lawley property nor the Hazelmere property have been sold.  The court was informed from the bar table that the Mount Lawley property had been subject to a contract for two years but had not proceeded to settlement.  Audrey Hall had given an undertaking to Chin that should the property be settled, $20,000 would be put in trust pending the outcome of the appeal.  The Hazelmere property had been taken off the market, but would be offered for sale again.

24. The court was also told from the bar table that in CIV 1588 of 2009 the daughter of Nancy Hall, Michele‑Maree Gannaway, had lodged a caveat over the properties claiming an interest as a beneficiary by reason of the Administration Act 1903 (WA), Nancy Hall having died without a will. The master had ordered that the caveat be removed pursuant to a memorandum of consent filed by the solicitors for Gannaway and Audrey Hall. Gannaway had indicated, however, that she was seeking to reignite the appeal instituted by her mother in CACV 53 of 2007. As I mentioned earlier, an application for an extension of time within which to commence that appeal had been adjourned by McLure JA on 27 April 2007 and has not yet been heard.

The master's decision

1. The reasons of the master ordering the immediate removal of Chin's caveat are brief.  The master began by outlining the facts of the case, including the order of Jenkins J that Nancy Hall deliver up possession of the properties to Audrey Hall.  He mentioned Chin's and Spunter's caveats over the properties.  He pointed out that all the caveats were lodged well after Kenneth Hall's mortgage was registered, and were said to protect interests which arose after the registration of Kenneth Hall's mortgage.

2. The master set out the main argument of Chin, saying (at [5]):

   The first defendant [Chin], who is a solicitor, acted for Ms [Nancy] Hall in an attempt to remove the second defendant's [Spunter's] caveat from the properties. The thrust of the first defendant's defence appears to be that he claims he is entitled to maintain a caveat over the properties by reason of s 244 of the Legal Practice Act 2003 (WA). He claims that the charge created by that Act has priority over the plaintiff's [Audrey Hall's] first registered mortgage.

3. The master then outlined the legal principles applicable to solicitor's liens and statutory charges under the Legal Practice Act, saying (at [5]):

   It was accepted by counsel for the plaintiff that a solicitor is entitled to a lien over property which is recovered or preserved by the efforts of the solicitor and in the interests of their client.  There have been a number of recent decisions in relation to this section, the most comprehensive of which is the decision of the Court of Appeal in Michell Sillar McPhee (A Firm) v First Industries Corp [2006] WASCA 24; (2006) 32 WAR 1. In that decision, reference is made to the decision of the UK Court of Appeal in Greer v Young (1883) 24 Ch Div 545.  Bowen LJ described the function of the section (here referring to the UK section which is in similar terms to our section) in these terms:

   It appears clear to me that this is a salvage section.  The solicitor is treated as a salvor who has recovered or preserved something in a time of danger by his work and labour.  Into whatever hands it may fall it is charged with the salvage (556).

4. The master then dismissed Chin's claim, saying (at [6]):

   It might be the case that a solicitor who performs 'salvage services' could establish a lien which takes precedence even against a mortgagee.  It is difficult to imagine a fact situation where that circumstance might arise; but in theory it is possible.  But that is not the case here.  The first defendant has done nothing to preserve the property the subject of the plaintiff's mortgage.  The plaintiff's mortgage was in place well before he began to act for Ms Hall.  No lien could have arisen which would defeat the plaintiff's position.  The plaintiff was entitled to summary judgment.

5. The master ordered that Chin's caveat be removed immediately and Chin (along with Spunter) pay the costs of the action, including reserved costs and the costs of the application, to be taxed.

Grounds of appeal

1. Chin advances two grounds of appeal, namely:

   1.The [master] erred in facts when he stated in [paragraph 6] that 'It is difficult to imagine a fact situation where that circumstance might arise; but in theory it is possible.  But that is not the case here.  The first defendant has done nothing to preserve the property the subject of the plaintiff's mortgage' when the following facts were before him:

   (a)The Appellant was duly appointed as solicitor and counsel by the late [Nancy Hall] who is the registered proprietor of the Hazelmere and Mt Lawley lands (the caveat lands) in CIV 1142 of 2005 No 1 that was heard before the learned Justice Jenkins.

   (b)The purpose of [Chin's] appointment was to seek the judgment of the Supreme Court of WA to remove the caveats of Spunter Pty Ltd and the Laws from the caveat lands, which judgment was reported in the case of Spunter Pty Ltd v Hall & Anor [2006] WASC 6 delivered 21.1.2006 (the Jenkin's [sic] judgment).

   (c)But for [Chin's] efforts in time and labour as solicitor and counsel for Ms Hall in rendering his meritorious services to Ms Hall which recovered and preserved her properties in the caveat lands, the Jenkin's Judgment would never have been brought into existence for the benefit of that owner of the caveated lands 'in a time of danger by his work and labour' and [Chin] is therefore entitled to his solicitor's lien over the salvaged properties which is the caveat lands.

   (d)The Jenkin's judgment imposed a time constraint for Spunter Pty Ltd and the Laws (Spunter) to file the CIV 1131 of 2006 to prove that Spunter have a caveatable interests [sic] to wit an equitable interests [sic] over the lands which was not complied with by David Taylor Solicitors although the court records proves otherwise except for the learned Justice Simmond's Discovery [sic] in CIV 1142 of 2006 No 2 which was timeously [sic] communicated to Ms Hall; but this point was never put forward to the court by her effectively because she was unrepresented.

   (e)[Chin's] labour and time as solicitor and counsel for Ms Hall was expended in the salvage of the caveat lands not only in the CIV 1142 of 2005 case but in its aftermath when [Chin] resisted the attempts of David Taylor Solicitors to have the CIV 1131 of 2006 litigated, resulting in the case dying its natural death; these efforts of [Chin] confers a further benefit on the salvaged lands for which the Plaintiff becomes the ultimate beneficiary because the Spunter's caveats are automatically removed by operation of law.

   2.The [master] erred in law when he further stated in that paragraph that 'The Plaintiff's mortgage was in place well before he began to act for Ms Hall.  No lien could have arisen which would defeat the plaintiff's action.  The plaintiff was entitled to summary judgment.' in the following terms:

   (a)[Chin] came to the scene as the salvor of the caveat lands only in 2005 whereas the Plaintiff came as the mortgagee of the salvaged lands through her late husband Kenneth Duncan Hall in 2000; this does not alter the right of [Chin] to a first charge of the salvaged lands under statute as provided for in s 244 of the Legal Practice Act 2003 as well as under the common law principles as enunciated by Bowen LJ in Greer v Young [1881-5] All E R Rep, at p 518 [sic] at paragraph H when the Plaintiff either as 'remainderman' or mortgagee of the 'salvaged property' who 'might be a mere stranger and who has no knowledge of the proceedings but if the property is recovered for [her], there is nothing in the section to prevent a charge from being declared against [her] interests in the salvaged lands.'

   (b)Irrespective of whose hands the caveat lands finally to [sic] and in this case it fell into the Plaintiff's hands, the caveat properties are to be charged with salvage.  Bowen LJ in Greer v Young (1883) 24 Ch D 545 refers to the English provision which is the predecessor of s 244 of the Legal Practice Act 2003 (WA) in terms which drew an analogy between that provision and a salvage section. (at 556) said:

   'It appears to me that this is a salvage section.  The solicitor is treated as a salvor who has recovered or preserved something in a time of danger by his work and labour.  Into whatever hands it may fall it is charged with the salvage.'

1. Chin has also applied for leave to admit further evidence in the appeal.  Chin submits that the additional evidence shows that CIV 1131 of 2006 (initiated by the Laws and Spunter) was not commenced until 16 February 2006, outside the time period directed by Jenkins J.  Accordingly, the caveats had lapsed.  This was due to his efforts and, thus, he had recovered and preserved property.  I will deal with the application when I come to discuss the first ground of appeal.

Law relating to statutory charges under the Legal Practice Act

1. There seems to be little disagreement between the parties about the law in relation to statutory charges under the Legal Practice Act which, although now replaced by the Legal Profession Act 2008 (WA), was in force at all material times.

2. Section 244(1) of the Act provides that:

   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.

3. Section 244(1) of the Act is cast in similar terms to s 73 of the Legal Practitioners Act 1893 (WA), which in turn had its origins in s 28 of the Solicitors Act 1860 (23 and 24 Vict C 127).

4. The law relating to statutory charges under s 73 of the Legal Practitioners Act 1893 was discussed in some detail in Michell Sillar McPhee (A Firm) v First Industries Corporation [2006] WASCA 24; (2006) 32 WAR 1. The principles espoused in that case are also applicable to s 244 of the Legal Practice Act.

5. In Michell Sillar McPhee the court found that a statutory charge arises in favour of a solicitor over a client's property when, through his efforts, the property is recovered or preserved.  The charge arises by virtue of the legislation rather than by declaration of the court.  Significantly, the statutory charge is not confined to the interests of the solicitor's client in the property but extends to the whole of the property recovered or preserved.  In explaining this point, Steytler P (at [14]) cited Greer v Young (1883) LR 24 Ch D 545 in which Bowen LJ said of a similar provision (at 556):

   It authorizes a charge not on the mere interest of the plaintiff but on all property recovered in the action whatever, for the plaintiff only, or for him in connection with others.  It appears clear to me that it is a salvage section.  The solicitor is treated as a salvor who has recovered or preserved something in a time of danger by his work and labour.  Into whatever hands it may fall it is charged with the salvage.

   The rationale for this rule is that a party should not be entitled to the fruits of the cause without first paying the solicitor by whose efforts the fruits were obtained.

6. The court in Michell Sillar McPhee also commented on the requirements that must be satisfied before a charge arises. There must be a causal connection between the recovery or preservation of the property and the work performed by the solicitor: [20]. The question of what is meant by the words 'recovery' or 'preservation' of the property was addressed by Steytler P. According to his Honour (at [19]), the best explanation was provided by Sir George Jessel MR in Foxon v Gascoigne (1874) LR 9 Ch App 654 at 657 (footnote 1), who said:

   [I]t means that where the Plaintiff claims property, and establishes a right to the ownership of the property in some shape or other, there the property has been recovered; that where a defendant's right to the ownership of property is disputed, and that right has been vindicated by the proceedings, there the property has been preserved … recovery and preservation are correlative terms, … they both relate to the ownership of the property.

7. It is clear, therefore, that for a charge to arise in favour of a solicitor in respect of certain property the client's right to ownership of that property must either be established or vindicated through the efforts of the solicitor.  If that occurs, the solicitor's statutory charge will be over the whole of the recovered or preserved property and will not be limited to the client's interest in that property.

Ground 1

1. Chin alleges in the first ground that the master erred in fact in finding that he had done nothing to preserve the properties the subject of Audrey Hall's mortgage.

2. Chin's argument is that he was appointed by Nancy Hall as her solicitor in CIV 1142 of 2005.  As I mentioned earlier, this action involved an application by Spunter to extend its two caveats over the properties which were said to protect an interest pursuant to the second deed which provided that Spunter and the Laws would have the 'first call' on the properties.  On 20 January 2006 Jenkins J extended the caveats on the condition that Spunter commence proceedings within 21 days to determine whether it had an equitable charge over the properties by virtue of the second deed.  Court records show that on 10 February 2006 (21 days after Jenkins J's orders) Spunter and the Laws commenced proceedings against Nancy Hall claiming by way of relief a declaration that the second deed created an equitable interest in the properties.

3. Chin asserts that Spunter did not commence proceedings within the 21 days required by Jenkins J.  He claims that, in truth, the proceedings were not commenced on 10 February 2006 but on some later date, probably 16 February 2006.  As a consequence, Spunter did not comply with the conditions imposed by Jenkins J and the caveats lapsed.  It was through his efforts, Chin says, that the caveats came to an end and the property of Nancy Hall was 'preserved'.  He was entitled, he argues, to a statutory charge over the properties.  Chin's application to adduce further evidence is brought in order to present additional evidence which he claims proves that Spunter did not actually commence proceedings on 10 February 2006.

4. I will assume, without deciding, that effecting the removal of a caveat constitutes recovery or preservation of property.  In my view there is no merit in the first ground of appeal.  Contrary to Chin's assertions, the caveats did not lapse following Spunter's application before Jenkins J in CIV 1142 of 2005.  Spunter's caveats remained until 29 October 2008 when the master ordered that they be removed ‑ along with Chin's caveat ‑ following Audrey Hall's successful application for summary judgment.  The gravamen of Chin's argument seems to be that Spunter's caveats should have lapsed in February 2006.  But the reality is that they did not.

5. In any event, the claim that Spunter did not commence proceedings within the 21 days specified by Jenkins J has already been aired and determined.  In Spunter Pty Ltd v Hall [No 2] [2007] WASC 239 Nancy Hall made that claim in support of her application to have Spunter's caveats removed. Nancy Hall gave evidence on affidavit that she had waited all day on 10 February 2006 in the Central Office of the Supreme Court and that CIV 1131 of 2006 was definitely not filed that day: see [107] ‑ [111]. However, the affidavit of Spunter's then solicitor and the date stamp on the writ indicated it was filed on 10 February 2006: see [112], [116].

6. After considering the evidence, Simmonds J was satisfied that the writ had been filed on 10 February 2006 and the caveats had not lapsed.  He said (at [117]):

   On balance I am satisfied on the balance of probabilities that the writ of summons in CIV 1131 of 2006 was indeed filed on 10 February 2006, the last day allowed for the commencement of that action in the orders of Jenkins J.  It seems to me that the evidence of the first defendant lacks the specificity that would be required to counter the evidence that the writ of summons was filed on that date.  In particular, I do not consider the first defendant's recall of the comprehensiveness of her watch for a filing on 10 February, her references to the persons with whom she spoke then, and the somewhat equivocal character of what she learnt on 13 February 2007 (if I believe the account in her 31 August 2006 affidavit rather than that in her 11 April 2007 one) to be sufficient for that purpose.

   His Honour dismissed Nancy Hall's application to have the caveats removed.

7. Chin was not a party to that action so he is not formally bound by that finding.  I see no reason, however, to depart from the finding of Simmonds J on that issue.  The date stamp on the writ initiating the action bears the date 10 February 2006.  There was other evidence which supported the conclusion that the date stamped on the writ was accurate.  Simmonds J was not persuaded by the evidence of Nancy Hall that the date marked on the writ was incorrect.  Neither am I.

8. In this appeal Chin filed an application to adduce further evidence to show that CIV 1131 of 2006 was not commenced on 10 February 2006.  The circumstances in which a court will entertain further evidence on appeal are well known.  The general principle guiding the admission of further evidence on appeal was formulated by Dixon CJ (with whom Williams, Webb, Kitto and Taylor JJ agreed) in Wollongong Corporation v Cowan (1955) 93 CLR 435 where he said (at 444):

   If cases are put aside where a trial has miscarried through misdirection, misreception of evidence, wrongful rejection of evidence or other error and if cases of surprise, malpractice or fraud are put on one side, it is essential to give effect to the rule that the verdict, regularly obtained, must not be disturbed without some insistent demand of justice.  The discovery of fresh evidence in such circumstances could rarely, if ever, be a ground for a new trial unless certain well-known conditions are fulfilled.  It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary.  Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial.

9. The test formulated in Wollongong Corporation was thus taken to require that the evidence be 'fresh' (that is, it could not with reasonable diligence have been obtained for use at trial) and that had it been available at trial, it is reasonably clear that the opposite outcome would have ensued:  see, for example, Australian Electrical Electronics Foundry & Engineering Union Western Australia Branch v Hamersley Iron Pty Ltd (1998) 19 WAR 145 at 161 ‑ 162; Franich v Swannell (1993) 10 WAR 459 at 466.

10. In CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 McHugh, Gummow and Callinan JJ in their joint judgment expressed the opinion that Wollongong Corporation had 'authoritatively laid down' the general law principles in relation to admitting fresh evidence on appeal [89]. Their Honours noted, however, that if a right of appeal is conferred by statute, the terms of the statutory grant determine the nature of the appeal and consequently the right, if any, to adduce further evidence [95]. Despite the admission of further evidence being a matter of statutory construction, the joint judgment noted that [111]:

    The power to admit the further evidence exists to serve the demands of justice.  Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the [court] is satisfied that the further evidence would have produced a different result if it had been available at the trial.  Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.

11. I have reviewed the evidence which Chin seeks to adduce and it does not prove his contention.  The high point of Chin's evidence is a letter written to him by a registrar of this court dated 11 June 2009 saying:

    You state you have a copy of the writ.  In that case you will note it has 2 dates on it.

    The first is 10 February 2006 with a notation that the fee was $654.20.

    The second is the assessment which in its original form shows a date of 10 February 2006 and an assessment no of 201702.  That assessment was cancelled after close of business on 10 February 2006 when it was realised by the Court that the cheque tendered for payment was for $654.00 and was therefore 20 cents short.

    I assume that fact was forwarded to the plaintiffs' solicitors because on 16 February 2006 the correct amount was paid:  $654.00 by credit card and 20 cents cash.  The assessment stamp was altered to 16 February 2006 and the new assessment number 202483 entered on the altered stamp.

    The assessment number is given on payment.

12. The letter does not establish that the action was not commenced on 10 February 2006.  It indicates that the writ was filed on 10 February 2006 and, through an oversight, the filing fee paid was 20 cents short of the proper amount.  The underpayment was brought to Spunter's solicitor's attention and the correct amount was paid.  This does not mean that the writ was not filed until the correct fee was paid. 

13. Order 4 r 1 of the Rules of the Supreme Court 1971 (WA) provides that an action must be commenced by a writ of summons. Order 5 r 6 provides that a writ is issued upon its being sealed by the proper officer, and r 7 and 8 provide that a copy shall be left with the appropriate officer for filing. Regulation 6 of the Supreme Court (Fees) Regulations 2002 (WA) requires that fees be paid before documents are filed. Regulation 7, however, confers on the court and registrars a discretion to waive, reduce, refund or defer fees. Regulation 11 provides that an unpaid fee is a debt due to the State and may be recovered by action in a court of competent jurisdiction. It seems to me that on the proper interpretation of the Rules it does not necessarily follow that a document is deemed not to be 'filed' merely because, as a result of oversight, the correct fee has not been paid.  This conclusion is supported by authority from other jurisdictions:  see Davies v Lewis [2001] NTSC 105; (2001) 11 NTLR 81; Gower v Woodman Sales Pty Ltd [1988] 2 Qd R 15.

14. Leaving aside the question of whether, in light of CDJ v VAJ, Chin needs to establish that his evidence is fresh and, if so, whether it possesses that quality, it is clear that the evidence would not have produced a different result had it been available before the master.  I have already dealt with the letter from the registrar dated 11 June 2009.  None of the other evidence which Chin seeks to adduce establishes that CIV 1131 of 2006 was not commenced on 10 February 2006.  As the evidence the subject of the application would not have made a difference to the outcome of the master's decision had it been available before him, I would dismiss the application to adduce further evidence.

15. The efforts of Chin did not bring the operation of the caveats to an end.  Even if the objective fact of the caveats' continued existence is put to one side, there is little force in the argument that they should have ceased due to Spunter's non-compliance with Jenkins J's orders.  There was insufficient evidence to support that contention before Simmonds J, and there is nothing in the additional evidence which Chin now seeks to adduce to cast doubt on Simmonds J's conclusion.

16. Because Chin's efforts did not bring about the removal of the caveats, he cannot be said to have 'recovered' or 'preserved' any property within the meaning of the Legal Practice Act. There was no sufficient connection between work done by Chin and the establishment or vindication of some right in relation to the properties. The caveats lodged by Spunter were removed pursuant to the master's order made 29 October 2008, consequent upon Audrey Hall's successful application for summary judgment. As a consequence, no statutory charge arose in Chin's favour in relation to the properties by virtue of his efforts.

17. This ground of appeal fails.

Ground 2

1. The second ground alleges that the master erred in law in stating that even if a statutory charge had arisen in favour of Chin, it could not have defeated Audrey Hall's registered first mortgage. Chin argues that a statutory charge under the Legal Practice Act takes priority over a registered first mortgage, even if the work giving rise to the charge is carried out after the registration of the mortgage.

2. This ground of appeal only requires resolution if ground 1 is made out.  The reason is that the issue of priorities as between Chin's statutory charge and Audrey Hall's registered first mortgage only arises if Chin is found to have a statutory charge over the properties.  If there is no statutory charge in favour of Chin, there is no need to resolve the question as to whether that charge would, theoretically, defeat Audrey Hall's first registered mortgage.

1. As ground 1 has not been made out, there is no need to reach a conclusion on the substance of the second ground.

Conclusion

1. It follows that the appeal must be dismissed.  I think it is necessary to make a general comment about the circumstances of this appeal.

2. In his oral submissions in the appeal Chin concentrated more on his status as a solicitor than he did on the substantive matters at issue in the appeal.  Chin had been the subject of complaints to, and disciplinary orders made by, the Legal Practice Board arising from matters connected with the performance of his duties as solicitor for Nancy Hall.  It is clear that he believes he has been the victim of false allegations and untrue claims and that he has been dealt with unfairly.  He indicated that he wanted to 'continue to practise and to serve the people of Western Australia'.

3. This appeal, however, is not about Chin's personal qualities or competence as a solicitor.  The question is whether he 'recovered' or 'preserved' property and whether he can claim a lien over that property.  It is understandable that a person in Chin's position may wish to take steps to vindicate his reputation and standing.  But the issues raised in this appeal are separate from those in the disciplinary proceedings.  The result of this appeal has to be viewed accordingly.

4. BUSS JA:  I agree with Owen JA, for the reasons he gives, that the appeal should be dismissed.  It is unnecessary to decide in this appeal whether work performed by a legal practitioner (including the prosecution of legal proceedings), which results in the removal of a caveat lodged in respect of land owned by the practitioner's client, constitutes work for or involving the 'recovery' or 'preservation' of the land.  I assume, for the purposes of this appeal, that work of that kind may constitute work for or involving the 'recovery' or 'preservation' of the land in question.