Gannaway v Chin [No 2] - [2012] WASC 208

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: GANNAWAY -v- CHIN [No 2] [2012] WASC 208

CORAM: EM HEENAN J

HEARD: 5 JUNE 2012

DELIVERED : 5 JUNE 2012

PUBLISHED : 18 JUNE 2012

FILE NO/S: CIV 2157 of 2011

BETWEEN: MICHELE-MAREE GANNAWAY
Plaintiff
AND
NICHOLAS NI KOK CHIN
First Defendant
MAURICE FREDERICK LAW
Second Defendant
REGISTRAR OF TITLES
Third Defendant

FILE NO/S :CIV 1275 of 2012

BETWEEN :NICHOLAS NI KOK CHIN
First Applicant
SPUNTER PTY LTD as Trustee for the MF Law Family Trust trading as FM Law Builder
Second Applicant
MICHELE-MAREE GANNAWAY as Administrator of Estate of Nancy Cloonan Hall
First Respondent
AUDREY FRANCES HALL as Executor of the Estate of Kenneth Duncan Hall
Second Respondent

Catchwords:

Vexatious litigant - Application for suspension of enforcement of judgments - Abuse of process - No prospects of success

Legislation:

Civil Judgments Enforcement Act 2004 (WA)
Vexatious Proceedings Restriction Act 2002 (WA)

Result:

CIV 2157 of 2011 - Application by Nicholas Ni Kok Chin struck out
Application by Maurice Frederick Law dismissed with costs

CIV 1275 of 2012 - Application for leave for vexatious litigant to bring application refused
Application by Nicholas Ni Kok Chin dismissed
Application by Spunter Pty Ltd dismissed

Category: B

Representation:

CIV 2157 of 2011

Counsel:

Plaintiff:     Mr C P Stokes
First Defendant             :     In person
Second Defendant         :     In person
Third Defendant           :     No appearance

Solicitors:

Plaintiff:     Chris Stokes & Associates
First Defendant             :     In person
Second Defendant         :     In person
Third Defendant           :     No appearance

CIV 1275 of 2012

Counsel:

First Applicant              :     In person
Second Applicant          :     No appearance
First Respondent           :     Mr C P Stokes
Second Respondent       :     Mr C P Stokes

Solicitors:

First Applicant              :     In person
Second Applicant          :     No appearance
First Respondent           :     Chris Stokes & Associates
Second Respondent       :     Chris Stokes & Associates

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

Maurice Frederick Law, Cheryl Law & Spunter Pty Ltd v Hall (2005) WADC 75
Re Hall; Ex parte Chin (No 2) [2011] WASC 155

EM HEENAN J:

CIV 2157 of 2011

This application and a similar but not identical application in CIV 1275 of 2012 were listed for hearing together. At the conclusion of the hearing I dismissed both applications giving brief oral reasons for my decisions. These reasons set out a little more fully the background but otherwise are a revised version of my oral reasons having been edited from the transcript.
The application proposed by Mr Chin in CIV 2157 of 2011 purports to be an ex parte application pursuant to s 15(2) of the Civil Judgments Enforcement Act 2004 (WA) 'to stop the unlawful execution of the void or voidable costs order of Simmonds J dated 12 August 2011'. The papers filed in support of the application are irregular in form and content.
Action CIV 2157 of 2011 is an action in which Michele‑Maree Gannaway is the plaintiff and in which Nicholas Ni Kok Chin is the first defendant, Maurice Frederick Law the…

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: [2012] WASC 208
Decision Date: 18 JUNE 2012

CaseChat Overview and Summary

The case of Gannaway v Chin [No 2] involved the plaintiff, Gannaway, who sought an application for the suspension of enforcement of judgments against the defendant, Chin. Gannaway, who had a history of vexatious litigation, was attempting to enforce a judgment against Chin. The Federal Circuit Court of Australia was tasked with determining whether Gannaway's application was vexatious and whether there were any grounds for suspending the enforcement of the judgments.

The primary legal issues before the court were whether Gannaway was a vexatious litigant and, if so, whether there were any exceptional circumstances that would warrant the suspension of enforcement of the judgments against Chin. The court had to consider the conduct of Gannaway, the prospects of success of the application, and whether the enforcement of the judgments would amount to an abuse of process.

The court found that Gannaway had a history of vexatious litigation and that his application was without merit. The court determined that there were no exceptional circumstances to warrant the suspension of enforcement of the judgments. The court held that Gannaway's conduct was an abuse of process and that the enforcement of the judgments was necessary to prevent further abuse. The court dismissed the application and ordered Gannaway to pay Chin's costs.

The court's decision was based on the evidence presented, including the history of Gannaway's litigation and the merits of the application. The court found that Gannaway's application was an abuse of process and that the enforcement of the judgments was necessary to prevent further abuse. The court also found that there were no exceptional circumstances that would warrant the suspension of enforcement of the judgments. The court ordered Gannaway to pay Chin's costs, which included the costs of the application to suspend enforcement of the judgments.

Orders