Gannaway v Chin [No 3]

[2012] WASC 269

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   GANNAWAY -v- CHIN [No 3] [2012] WASC 269

CORAM:   MASTER SANDERSON

HEARD:   25 JULY 2012

DELIVERED          :   27 JULY 2012

FILE NO/S:   CIV 2157 of 2011

BETWEEN:   MICHELE-MAREE GANNAWAY

Plaintiff

AND

NICOLAS NI KOK CHIN
First Defendant

MAURICE FREDERICK LAW
Second Defendant

REGISTRAR OF TITLES
Third Defendant

FILE NO/S :CIV 1275 of 2012

BETWEEN              :NICOLAS 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:

Application for suspension order under Civil Judgments Enforcement Act - Turns on its own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA)

Result:

Applications dismissed

Category:    B

Representation:

CIV 2157 of 2011

Counsel:

Plaintiff:     No appearance

First Defendant             :     In person

Second Defendant         :     In person

Third Defendant           :     No appearance

Solicitors:

Plaintiff:     No appearance

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):

Audrey Francis Hall as executrix of the estate of Kenneth Duncan Hall v Chin [2008] WASC 255

1. MASTER SANDERSON:  This appears to be the return of three applications made by the first and second defendants.  The first is an application for a suspension order under the Civil Judgments Enforcement Act 2004 (WA). That application is made by the first and second defendants. The second application made by letter without initiating process asks that I recuse myself from dealing with matters associated with Mr Chin. The third application, again made without initiating process, appears to be an application by Mr Chin for leave to commence proceedings. Mr Chin has been declared a vexatious litigant and needs leave before any action can be commenced.

2. Dealing first with the application for a suspension order, it is supported by an affidavit of the first and second defendants sworn 20 June 2012.  Although not specified in the application itself, it would appear the first and second defendants are seeking an order suspending enforcement of a costs order made by Simmonds J on 12 August 2011.  The affidavit is hardly comprehensible.  It appears to re‑agitate issues which have already been decided.  It provides no basis for the orders sought by the first and second defendants.  Moreover, I was advised by Mr Chin appeal proceedings are on foot.  If the enforcement order is to be suspended, it should be by order of the Court of Appeal.

3. The application for the suspension order will be dismissed.

4. As I understand the position, the application I recuse myself is based upon a decision I made in 2008:  Audrey Francis Hall as executrix of the estate of Kenneth Duncan Hall v Chin [2008] WASC 255. There is nothing in that decision which could lead to an apprehension of bias. There is, accordingly, no basis upon which I should disqualify myself. That application will be dismissed.

5. Finally, there is no basis upon which Mr Chin should be given leave to commence any further proceedings.  He is simply seeking to re‑agitate matters which have been considered on numerous occasions.  There is no substance to the allegations made in the affidavit material and it would be a waste of time and money to allow Mr Chin to commence further proceedings. 

6. Accordingly, all of the first and second defendants' applications will be dismissed.