Chin v Thies - [2010] WASCA 230

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CHIN -v- THIES [2010] WASCA 230

CORAM: PULLIN JA
NEWNES JA

HEARD: 23 NOVEMBER 2010

DELIVERED : 7 DECEMBER 2010

FILE NO/S: CACV 75 of 2010

BETWEEN: NICHOLAS NI KOK CHIN
Appellant
AND
TIMOTHY ROBIN THIES
First Respondent
PAUL CHUNG KIONG CHIN
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :KENNETH MARTIN J
Citation  :RE MICHELIDES; EX PARTE CHIN [No 2] [2010] WASC 169
File No  :CIV 1903 of 2008

Catchwords:

Practice and procedure - Application for leave to appeal against order for security for costs - Appellant's case defective - Grounds of appeal have no reasonable prospect of success - Appeal dismissed

Legislation:

Rules of the Supreme Court 1971 (WA), O 25 r 2(g)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4), r 32(5), r 43(2)(g)(i), r 43(2)(g)(ii)

Result:

Leave to appeal refused
Appeal dismissed with costs

Category: B

Representation:

Counsel:

Appellant:     In person
First Respondent           :     Mr D S Ellis
Second Respondent      :     No appearance

Solicitors:

Appellant:     In person
First Respondent           :     In person
Second Respondent      :     No appearance

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

Chin v Thies [2008] WADC 71
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Re Michelides; Ex parte Chin [2008] WASC 256
Re Michelides; Ex parte Chin [No 2] [2010] WASC 169

JUDGMENT OF THE COURT: On 23 November 2010, we dismissed an appeal by the appellant against an interlocutory decision of Kenneth Martin J of 8 July 2010 by which his Honour ordered the appellant to provide security for costs in proceedings by the appellant for a writ of certiorari: Re Michelides; Ex parte Chin [No 2] [2010] WASC 169. We said we would provide reasons for our decision. These are our reasons.

Background

It is necessary, to put the present proceedings in context, to outline some of the background. The following account is taken substantially from the reasons for decision of Commissioner Herron in the District Court in Chin v Thies [2008] WADC 71. It will be necessary to return to that judgment in due course.
In November 2004, the first respondent agreed to act on behalf of the second respondent, the son of the appellant, in proceedings in the District Court. It was common ground that both the appellant and the second respondent were responsible for payment of the first respondent's fees and disbursements.
Subsequently a dispute arose regarding the first respondent's fees. On 11 December 1986, the first respondent lodged a caveat against the second respondent's property. The caveat was lodged on the basis of cl 18 of the retainer agreement, entered into by the parties, by which the second respondent agreed to charge his property with payment of the first respondent's fees. The second respondent then caused a notice under s 138B of the Transfer of Land Act 1893 (WA) to be issued.
In response to…

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.

Continue reading Chin v Thies

Details

AGLC: Chin v Thies [2010] WASCA 230
Case: [2010] WASCA 230
Decision Date: 7 DECEMBER 2010

CaseChat Overview and Summary

The appeal in Chin v Thies involved the appellant, who sought leave to appeal against an order for security for costs. The respondent, Thies, was represented by a law firm that had previously acted for the appellant's son. The dispute arose from a disagreement over legal fees, leading to a caveat being lodged against the son's property. The matter eventually settled, with the appellant paying the law firm $11,500, and the caveat being removed. However, the appellant later sought a writ of certiorari against the order for security for costs.

The central legal issue before the court was whether the appellant's grounds of appeal had a reasonable prospect of success. This required the court to assess the merits of the appellant's case and determine if the appeal could succeed based on the presented arguments. The court had to consider the nature of the security for costs order and the standard of proof required to justify an appeal against such an order.

The court found that the appellant's case was defective and that the grounds of appeal did not have a reasonable prospect of success. The appellant's arguments lacked merit, and the court was not satisfied that the appeal would succeed if leave were granted. As a result, the appeal was dismissed, and the order for security for costs remained in place.

The final orders of the court were to dismiss the appeal and uphold the interlocutory decision made by Kenneth Martin J, which required the appellant to provide security for costs.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

JUDGMENT OF THE COURT: On 23 November 2010, we dismissed an appeal by the appellant against an interlocutory decision of Kenneth Martin J of 8 July 2010 by which his Honour ordered the appellant to provide security for costs in proceedings by the appellant for a writ of certiorari: Re Michelides; Ex parte Chin [No 2] [2010] WASC 169. We said we would provide reasons for our decision. These are our reasons. It is necessary, to put the present proceedings in context, to outline some of the background. The following account is taken substantially from the reasons for decision of Commissioner Herron in the District Court in Chin v Thies [2008] WADC 71. It will be necessary to return to that judgment in due course. In November 2004, the first respondent agreed to act on behalf of the second respondent, the son of the appellant, in proceedings in the District Court. It was common ground that both the appellant and the second respondent were responsible for payment of the first respondent's fees and disbursements. Subsequently a dispute arose regarding the first respondent's fees. On 11 December 1986, the first respondent lodged a caveat against the second respondent's property. The caveat was lodged on the basis of cl 18 of the retainer agreement, entered into by the parties, by which the second respondent agreed to charge his property with payment of the first respondent's fees. The second respondent then caused a notice under s 138B of the Transfer of Land Act 1893 (WA) to be issued. In response to the s 138B notice, the first respondent commenced proceedings in this court seeking an order extending the operation of the caveat. On 8 February 2007, the proceedings came on for hearing before Templeman J who ordered that the caveat be extended until further order and directed that the first respondent commence proceedings in the Magistrates Court to resolve the substantive issue. On 23 March 2007, the first respondent commenced proceedings in the Magistrates Court, in action FR 417 of 2007, against the appellant and the second respondent claiming the sum of $24,685.61 pursuant to the retainer. Subsequently there were discussions between the parties which ultimately led to the execution of a settlement deed on or about 12 April 2007. Under the terms of the settlement deed, the appellant and the second respondent jointly and severally agreed to pay to the first respondent the sum of $11,500 on or before 13 April 2007. Upon payment, the parties agreed to request the registrar of the Magistrates Court to enter judgment in FR 417 of 2007 and the first respondent agreed to remove the caveat. The settlement deed was expressed to be an absolute bar to the commencement or continuation of any legal proceedings by any party against the other. The appellant paid the first respondent the sum of $11,500 on 13 April 2007 and, on 18 May 2007, the appellant faxed a copy of the settlement papers and a request for judgment to the Magistrates Court. On 7 June 2007, judgment was entered.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.