Singh v Singh [No 4] - [2010] WASC 224

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SINGH -v- SINGH [No 4] [2010] WASC 224

CORAM: MAZZA J

HEARD: 21 JUNE, 9 & 22 JULY 2010

DELIVERED : 24 AUGUST 2010

FILE NO/S: CIV 1677 of 2004

BETWEEN: SARDUL SINGH
Plaintiff
AND
MAN MAHAN SINGH
Defendant

Catchwords:

Practice and procedure - Application by plaintiff to set aside final orders which have been extracted - Inherent power of the court to do so

Legislation:

Rules of the Supreme Court 1971 (WA), O 43 r 1

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr E Carlose
Defendant: Mr S S Sandhu

Solicitors:

Plaintiff: Eapon Carlose
Defendant: S S Sandhu

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

Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529
Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226
D'Orta‑Ekenaike v Victoria Legal Aid [2000] HCA 12; (2005) 223 CLR 1
Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145
Narayan bhnf Wignall v Morphett [No 2] [2010] ACTSC 32
R v Forbes; Ex parte Bevan [1972] HCA 34; (1972) 127 CLR 1
Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264
Singh v Singh [No 3] [2010] WASC 64
Sirius Shipping Corporation v The Ship Sunrise [2007] NSWSC 766

MAZZA J: By chamber summons filed 1 June 2010, the plaintiff applied for certain orders pursuant, it was said, to my judgment dated 24 March 2010. The application has been the subject of three hearings, on 21 June 2010, 9 July 2010 and 22 July 2010. During this period, the orders sought by the plaintiff have evolved. When the matter was before me on 22 July 2010, the plaintiff's counsel sought orders in terms of a Minute dated 18 July 2010. The orders sought in that Minute are as follows:
1.The Plaintiff be granted leave to amend the Defendant's name in the title in the manner shown above. [Man Mahon Singh Bal].
2.The Defendant forthwith provide Eapon Carlose, the Plaintiff's Solicitor, with the current residential address of his brother-in-law, Jaspal Singh s/o Harbhajan Singh (Jaspal).
3.Orders Nos 3 and 4 of the Judgment herein dated 26 March 2010 be deleted and replaced by the orders following.
4.Within 7 days of receipt from the Plaintiffs Solicitor of
(a) an Irrevocable Power of Attorney (hereinafter referred to as 'PA 1'), in triplicate, a copy of which is attached to the Plaintiff's Supplementary Submissions dated 18 July 2010, pertaining to the property and the house erected thereon at No 14 Jalan Lim Swee Aun, Birch Village 34000, Taiping, Perak, Malaysia, held under Grant No. 53671, Mukim Tupai, Lot 1606, District of Larut & Matang, in the State of Perak, Malaysia (hereinafter referred to as No 14'), the Defendant do execute, in accordance with directions of the Plaintiff's solicitor and in the presence of a Notary Public in Perth the 3 copies of the Irrevocable Power Attorney,
(b) a Revocation of Irrevocable Power of Attorney (RPA), in triplicate, revoking the Power of Attorney given in favour of Jaspal on 9 February 2009 (hereinafter referred to as 'PA2'), the Defendant do execute, in accordance with directions of the Plaintiff's solicitor and in the presence of a Notary Public in Perth, the 3 copies of the RPA and return the copies of PAl and the RPA, unamended and duly executed, together with the original PA2, to the Plaintiff's Solicitor.
5.The Defendant forthwith take all appropriate and necessary steps to procure and obtain Jaspal's consent to the said revocation and the removal of the caveat lodged by him against the said property.
6.Upon obtaining such consent and within 7 days of receipt from the Plaintiff's Solicitor of the Consent to Revocation of Irrevocable Power of Attorney and Consent to Removal of Caveat, each in triplicate, the Defendant forthwith thereafter forward them to Jaspal for his execution in the presence of a Notary Public in Singapore, and return them, unamended and duly executed, to the Plaintiff's solicitor within 14 days thereafter.
7.Until further order, the Defendant be restrained and an injunction is hereby granted restraining him, whether by himself, his agents or otherwise, from selling, encumbering or otherwise disposing of the said property or doing anything that will impede or hinder the said property being made available, free of encumbrance, to the Plaintiff pursuant to the PA and the RPA.
8.The Plaintiff be at liberty to apply for further orders, if appropriate and necessary.
The defendant opposes the making of these proposed orders.

Background

On 26 March 2010, after a short trial in which the defendant did not participate, I gave judgment in favour of the plaintiff: Singh v Singh [No 3] [2010] WASC 64. The history of the matter is set out in my reasons. There is no need to repeat it. The main issue before me was whether a deed of trust dated 22 June 2001 was genuine. The deed of trust related to a property which is located in Malaysia which I will refer to in these reasons as 'Number 14'. Pursuant to the terms of the trust deed, the defendant, who is presently the registered proprietor of the property, held the property on trust for the plaintiff.
At the trial, I heard evidence from both the plaintiff and the witness to the deed of trust. Their evidence was brief and was restricted to the issue of the genuineness of the deed. Although the dispute between the plaintiff and the defendant has a long running history in both this State and Malaysia, these were not matters which were raised in the trial before me.
On 26 March 2010, after delivering my reasons for decision, the plaintiff's counsel, Mr Carlose, handed to me a document entitled 'Amended Minute of Proposed Orders/Declarations' (the Minute). The Minute did not seek an order requiring the defendant to execute any irrevocable power of attorney, or a revocation of an irrevocable power of attorney, or liberty to apply. After discussing some aspects of the Minute with Mr Carlose, final orders were made. Relevantly to this application, they were:
2.The Defendant, as trustee, held and holds the property at No 14 Jalan Lim Swee Aun, Taiping, Perak, Malaysia, registered in Grant of Land No 16458 and known as Lot No 1606 Mukim Tupai, District Larut, Perak, Malaysia, on trust for the Plaintiff, as beneficiary.
3.Within 7 days of receipt from Eapon Carlose, the Plaintiff's Solicitor, of a Transfer Document conveying the said Property to the Plaintiff, the Defendant
(a)execute, in the presence of the Malaysian Consulate in Perth, the said document,
(b)do all other things and execute all other documents, appropriate and necessary, to enable any existing mortgage on the property to be discharged and the said property transferred, free of encumberance [sic], absolutely to the Plaintiff and
return the said documents, duly executed, to Eapon Carlose.
4.Until compliance with Order No 3 hereof, the Defendant be restrained and an injunction is hereby granted restraining him, whether by himself, his agents or otherwise, from selling, encumbering or otherwise disposing of the said property.
Those orders were extracted on 7 April 2010.
I note that there is an error in extracted order 3(a). The word 'Consulate' should be 'Consul' (see ts 271 ‑ 272).
On 13 May 2010, the plaintiff's counsel sent to the defendant a letter enclosing a number of documents, including the transfer which the defendant had been ordered to sign. The letter requested that the defendant sign the documents 'before a Consulate Officer of the Malaysian Consulate in Perth'.
On 21 May 2010, the defendant's wife sent an email to the plaintiff's counsel advising him that she had received advice from the Malaysian Consulate in Perth that none of its officers had the authority to witness the transfer. Indeed, by letter dated 20 May 2010 addressed 'To Whom it May Concern' the Consul‑General of Malaysia in Perth stated that a transfer document must, under the Malaysian National Land Code (1965) be executed before either the High Commissioner of Malaysia, the Deputy High Commissioner of Malaysia or any Secretary of the High Commissioner of Malaysia or a notary public having an official seal (see affidavit of Eapon Carlose sworn 1 June 2010 pages 4, 5, 15 and 18).
The summons filed on 1 June 2010 sought an order that the defendant execute an irrevocable power of attorney with respect to Number 14. That summons was accompanied by an affidavit from Mr Carlose sworn 1 June 2010. The terms of the proposed irrevocable power of attorney are set out between pages 11 and 13 of Mr Carlose's further affidavit sworn 16 June 2010. Mr Carlose filed a third affidavit sworn 17 June 2010.
The defendant, having been served with the plaintiff's application dated 1 June 2010, sought and obtained legal representation. In response to the affidavits of Mr Carlose, the defendant swore an affidavit on 18 June 2010.
As a result of Mr Carlose's affidavit sworn 16 and 17 June 2010 and the defendant's affidavit sworn 18 June 2010 as well as other matters which have been referred to by counsel from the bar table, I have been made aware that:
(a)The plaintiff lodged a caveat over Number 14 in 2001.
(b)Jaspal Singh, a brother of the plaintiff and the defendant, also registered a caveat on the property on 16 June 2006.
(c)There are pending proceedings before the High Court in Malaysia concerning both caveats.
(d)On 9 February 2009, the defendant executed an irrevocable power of attorney in relation to Number 14 in favour of Jaspal Singh. The terms of this document are set out between pages 13 and 18 of the defendant's affidavit dated 18 June 2010. The document refers to a trust deed dated 14 July 1999 in which it is said that the defendant, as registered proprietor of the property, holds the property on trust for Jaspal Singh.
Nowhere in Mr Carlose's three affidavits has it been explained why the plaintiff requires an irrevocable power of attorney. However, in the plaintiff's outline of submissions dated 17 June 2010, Mr Carlose stated that the execution of a proposed irrevocable power of attorney 'is essentially a step in the process of ensuring that the legal title and the beneficial interest in the property is conveyed to the Plaintiff'.
The proceedings on 21 June 2010 were adjourned without objection to 9 July 2010. On 9 July 2010, the proceedings were further adjourned to 22 July 2010.
When the proceedings resumed on 22 July 2010, Mr Carlose sought the orders referred to at the commencement of these reasons. He told me that the plaintiff accepts that notwithstanding the orders made by me on 26 March 2010 his client will have to take proceedings in Malaysia to deal with the 1999 trust deed, the irrevocable power of attorney dated 9 February 2009 and the caveats (ts 310). Essentially, the plaintiff will be seeking orders to the effect that he is the rightful owner of Number 14 and that the 1999 trust deed is a forgery and the irrevocable power of attorney executed on 9 February 2009 is invalid. He will also seek an order for the removal of Jaspal Singh's caveat over the property.
Mr Carlose informed me that the irrevocable power of attorney is required because, he asserted, it will obviate the need for him to register my judgment in Malaysia (ts 320). It will also allow him to 'short circuit' legal proceedings because he would be able to remove any encumbrances to the property and sell it, all in the name of the defendant.
Leaving to one side the merits of the plaintiff's application, the threshold question is whether I have the power to make the orders sought.
With respect to the plaintiff's counsel, insufficient attention has been given to this fundamental issue. Mr Carlose, in his written submissions, put the plaintiff's case on the question of jurisdiction as follows:
It is now settled that where neither the facts nor the law are to be agitated again and where the court is making a further or consequential order to resolve a procedural matter that remains unresolved, which is the case here, the court is empowered to act. Sirius Shipping Corporation v The Ship Sunrise [2007] NSWSC 766 at [37] ‑ [42] and Narayan bhnf Wignall v Morphett [No 2] [2010] ACTSC 32. See also Singh v Singh [No 3] [2010] WASC 64 at [28].
The orders that I made were extracted pursuant to O 43 r 1 of Rules of the Supreme Court1971 (WA). They are plainly final orders disposing of the proceedings. Once such an order is made and then perfected, subject to any liberty to apply given in the order, or any relevant statutory provision, or the inherent jurisdiction of the court, the trial judge is functus officio and has no further power in the matter.
One frequently invoked statutory provision used to correct errors or mistakes made in any final judgment or order is O 21 r 10 of the Rules of the Supreme Court1971, known as the slip rule. The plaintiff has not sought to invoke the slip rule, nor could it conceivably have been invoked. This is because no mistake was made by the court or the plaintiff's lawyer when the final orders were made.
The plaintiff is left to rely on the inherent jurisdiction of the court to provide a basis for the orders he now seeks.
The scope of the court's inherent powers is wide, dynamic and defies exhaustive definition: see Mason K QC The Inherent Jurisdiction of the Court (1983) 57 ALJ 449, 449, 458 ‑ 459. The jurisdiction derives from the powers that a court has by virtue of it being a court: R v Forbes; Ex parte Bevan [1972] HCA 34; (1972) 127 CLR 1, 7. Such powers are necessary for the administration of justice: Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264, 270.
Mason QC described the court's inherent jurisdiction as 'a judicial power of last resort that will be invoked to block certain types of conduct which are not regulated by statutes or rules of court, or indeed expressly permitted by them' (57 ALJ 449, 458).
Is there an inherent power to recall or vary final orders in order to facilitate actions which will be undertaken by the successful party in another jurisdiction? If such an inherent power exists, I have been unable to find a decided case to support its existence. While the absence of precedent is not decisive, it is hardly surprising.
One of the clear policies of the law is that there should be finality in litigation. This principle has been emphasised on many occasions in the High Court in such cases as Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529; Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145, 154; DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 [94]; D'Orta‑Ekenaike v Victoria Legal Aid [2000] HCA 12; (2005) 223 CLR 1, 17; Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218, 223.
I have carefully read the two cases primarily relied upon by the plaintiff: Sirius Shipping Corporation v The Ship Sunrise [2007] NSWSC 766 and Narayan bhnf Wignall v Morphett [No 2] [2010] ACTSC 32. The facts of those cases are very different from the facts here and are readily distinguishable. Neither case provides any support for the plaintiff's position. This is not a case of resolving a procedural matter left unresolved at the trial. The stark reality in this case is that the plaintiff, having sought one set of orders before me on 26 March 2010, now seeks another set of orders for the purpose of facilitating proceedings in Malaysia. I do not think that this is a sufficient reason to depart from the principle of finality in litigation and I am not prepared to do so. Indeed, to make the orders sought would, in my view, undermine the principle.
For the sake of completeness, an issue arose before me as to whether the doctrine of res judicata operates to prevent the defendant from litigating issues relating to the validity of the 1999 trust deed, having regard to my judgment in respect of the 2001 trust deed. The existence and validity of the 1999 trust deed were not matters before me. This is one of the matters that will be litigated in Malaysia. Any issue of res judicata will be resolved there. It is not appropriate for me to deal with this issue after trial in the context of an application such as this.
For these reasons, I refuse to make the orders sought by the plaintiff on 22 July 2010.
However, it does seem that an error was made by the plaintiff's solicitor concerning the appropriate person before whom a transfer document can be signed. This is an error which can be remedied by the slip rule. I would be prepared, if requested by the plaintiff, to vary order 3(a) of the orders made on 26 March 2010 to allow the transfer to be witnessed by either the High Commissioner of Malaysia, the Deputy Commissioner of Malaysia, any Secretary of the High Commissioner of Malaysia, or a Notary Public having an official seal.
On the assumption that the plaintiff wishes me to amend order 3(a) to provide for a properly qualified witness, I propose to make the following orders:
1.Pursuant to O 21 r 10 of the Rules of the Supreme Court1971, order 3(a) of the orders made on 26 March 2010 be amended by deleting the reference to the Malaysian Consulate and substituting the words ';the High Commissioner of Malaysia, the Deputy Commissioner of Malaysia, any Secretary of the High Commission of Malaysia, or a Notary Public having an official seal.
2.The application filed on 1 June 2010 be dismissed.
The effect of the proposed orders is that, subject to order 3(a) being amended, the orders I made on 26 March 2010 remain as the final orders in these proceedings.
I will hear the parties as to costs.