Chin v Hall [No 2]

[2011] WASCA 96

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   CHIN -v- HALL [No 2] [2011] WASCA 96

CORAM:   PULLIN JA

NEWNES JA

HEARD:   1 APRIL 2011

DELIVERED          :   1 APRIL 2011

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:

Application for suspension order - Application dismissed - Turns on own facts

Legislation:

Nil

Result:

Application 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):

Chin v Hall [2009] WASCA 216

Chin v Hall [2010] HCASL 104

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308

Hall v Chin [2008] WASC 255

1. PULLIN JA:  This is an application for a suspension order under the Civil Judgments Enforcement Act 2004 (WA). The background is that Mr Chin lodged a caveat against the title of the properties registered in the name of Nancy Hall, over which Audrey Hall held a registered mortgage. Audrey Hall applied for the removal of the caveats. Master Sanderson made such an order: see Hall v Chin [2008] WASC 255.

2. Mr Chin appealed.  This court dismissed the appeal and ordered Mr Chin to pay the first respondent's costs to be taxed:  see Chin v Hall [2009] WASCA 216. Mr Chin applied for special leave to appeal to the High Court. The application was dismissed: see Chin v Hall [2010] HCASL 104.

3. During the appeal to the Court of Appeal, Mr Chin applied to adduce some additional evidence. The evidence that he sought to adduce was evidence to show that an action, CIV 1131 of 2006, was not commenced on 10 February 2006: see [51] of the Court of Appeal reasons. The court held that the evidence would not have produced a different result had it been available to the master: see [57].

4. During this hearing, Mr Chin applied to call a Mr Maurice Law to prove that action CIV 1131 of 2006 was not commenced on 10 February 2006.  This court refused to permit Mr Chin to call Mr Law.  It was for the purpose of proving a fact which was considered and dealt with by the Court of Appeal and which the Court of Appeal said would not have produced a different result had it been available before the master.

5. This application is for a suspension order in relation to the costs ordered by the Court of Appeal.  The costs were taxed and certified by the taxing officer at $13,983.26.  The court record shows that on 3 November 2010, after the costs were taxed, the registrar advised that the allocator was to be signed on 10 November, unless a request for review and objection was filed before that date.

6. It seems that there was an application for a review, because on 17 December 2010, there is a note from the registrar stating:

   Review dismissed as not being a review of objections to taxation.  Allocator signed.

   At the foot of the bill of costs for taxation, there is a certificate signed by the taxing officer, which reads:

   I certify that I have taxed the within bill of costs and allowed the same at $13,983.26. 

It then has 'Dated 3 November 2010', but has a note:  'Signed after review on 17 December 2010', and it is signed by the taxing officer.

1. Pursuant to O 66 r 57, the costs so certified are deemed to be a judgment of the court and recoverable accordingly.  The judgment is the judgment which Mr Chin asks to be suspended.  The application asks for the judgment to be suspended, not until some event occurs but indefinitely, and Mr Chin has confirmed this in his oral submissions.

2. The affidavit Mr Chin has filed in support seeks to reargue matters argued in the Court of Appeal.  The Civil Judgments Enforcement Act 2004 (WA) states that special circumstances have to be shown before a suspension order may be granted: s 15(3). The principles in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 apply where a person is appealing against a judgment. In this case, there is no appeal against the decision, those appeal rights having been exhausted. There is no reason to suspend the judgment of the court, no special circumstances have been shown, and the application should be dismissed.

3. NEWNES JA:  I agree with Pullin JA.