Hall v Chin
[2008] WASC 255
•29 OCTOBER 2008
AUDREY FRANCIS HALL as executrix of the estate of KENNETH DUNCAN HALL -v- CHIN [2008] WASC 255
| Link to Appeal : |
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| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 255 | |
| 04/11/2008 | |||
| Case No: | CIV:1775/2008 | 29 OCTOBER 2008 | |
| Coram: | MASTER SANDERSON | 28/10/08 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Judgment entered for plaintiff | ||
| B | |||
| PDF Version |
| Parties: | AUDREY FRANCIS HALL as executrix of the estate of KENNETH DUNCAN HALL NICHOLAS NI KOK CHIN SPUNTER PTY LTD (ACN 002 179 375) THE REGISTRAR OF TITLES |
Catchwords: | Summary judgment Application by plaintiff Turns on own facts |
Legislation: | Nil |
Case References: | Greer v Young (1883) 24 Ch Div 545 Hall v Hall [2007] WASC 34 Michell Sillar McPhee (A Firm) v First Industries Corp [2006] WASCA 24; (2006) 32 WAR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
NICHOLAS NI KOK CHIN
First Defendant
SPUNTER PTY LTD (ACN 002 179 375)
Second Defendant
THE REGISTRAR OF TITLES
Third Defendant
Catchwords:
Summary judgment - Application by plaintiff - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Judgment entered for plaintiff
Category: B
Representation:
Counsel:
Plaintiff : Mr A M Prime
First Defendant : In person
Second Defendant : No appearance
Third Defendant : No appearance
Solicitors:
Plaintiff : McCallum Donovan Sweeney
First Defendant : In person
Second Defendant : No appearance
Third Defendant : No appearance
Case(s) referred to in judgment(s):
Greer v Young (1883) 24 Ch Div 545
Hall v Hall [2007] WASC 34
Michell Sillar McPhee (A Firm) v First Industries Corp [2006] WASCA 24; (2006) 32 WAR 1
(Page 3)
1 MASTER SANDERSON: By chamber summons, the plaintiff sought summary judgment against the first and second defendants. At the conclusion of the hearing, I made the orders sought by the plaintiff. I indicated that I would publish reasons at a later date. These are those reasons.
2 On 19 February 2007, the plaintiff obtained judgment against Nancy Cloonan Hall (Ms Hall), the registered proprietor of two properties - one in Hazelmere and one in Mount Lawley. Judgment was obtained on the basis that the plaintiff held first registered mortgages over both properties securing an amount of $2,301,010.28 (in CIV 2073 of 2003 - see Hall v Hall [2007] WASC 34). Judgment required that Ms Hall deliver up the properties to the plaintiff for sale.
3 The evidence suggests that the combined value of the properties is significantly less than the judgment sum obtained by the plaintiff. The plaintiff has entered into a contract to sell the Mount Lawley property with the settlement date now extended to 30 November 2008.
4 The first and second defendants each hold caveats over the Mount Lawley and Hazelmere properties, each caveat being lodged years subsequent to the plaintiff's mortgage and in respect of alleged interests arising well subsequent to the plaintiff's mortgage.
5 The first defendant, who is a solicitor, acted for Ms Hall in an attempt to remove the second defendant'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 first registered mortgage. 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
(Page 4)
- by his work and labour. Into whatever hands it may fall it is charged with the salvage (556).
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.
7 The position of the second defendant is somewhat more difficult to formulate. There is an affidavit of one Maurice F Law which is attached to the file. It appears this document was never filed and does not form part of the court record. The second defendant has not filed an appearance. No one appeared for the second defendant at the hearing of this application. I did, however, take into account the affidavit when reaching my decision. Mr Law says he is the sole director of the second defendant. He claims that he is the holder of a first mortgage 'over the estates of Nancy Cloonan Hall'. (The reference by Mr Law is to himself personally; I have assumed he is referring to the second defendant.) He says that this mortgage arose as a consequence of payment of moneys at various times to Ms Hall starting in November 2000.
8 It is clear that the second defendant had no registered interest against the properties when the plaintiff took out the mortgage the subject of this application. Even if the second defendant did have some form of interest in the property which arose by the advance of money, it is an interest subordinate to the plaintiff's interest as first registered mortgagee. That is enough to dispose of the second defendant's argument. The second defendant has no defence to this claim.
9 For the sake of completeness, I should mention that the plaintiff's application is supported by her affidavit sworn 28 July 2008. In that affidavit, she verifies the statement of claim and complies with all of the requirements of O 14. That being so, and the evidence of the defendants not disclosing any arguable defence, I was satisfied that judgment ought be entered for the plaintiff. I made orders accordingly.
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