CHIN [2026] WASC 157

[2026] WASC 157 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : CHIN [2026] WASC 157 CORAM : GETHING J HEARD : 23 APRIL 2026 DELIVERED : 4 MAY 2026 FILE NO/S : CIV 1495 of 2026 BETWEEN : NICHOLAS NI KOK CHIN Applicant Catchwords: Application by person subject to Vexatious Proceedings Restriction Act 2002 (WA) for leave to proceed Legislation: Property Law Act 1969 (WA) s 52 Transfer of Land Act 1893 (WA) s 201, s 205 Vexatious Proceedings Restriction Act 2002 (WA) s 6 Result: Application dismissed Category: B -- 1 of 9 -- [2026] WASC 157 Page 2 Representation: Counsel: Applicant : In Person Solicitors: Applicant : In Person Case(s) referred to in decision(s): Chin [2019] WASCA 116 Du Bray v RSM Australia [2026] WASC 113 Eureka Operations Pty Ltd v Viva Energy Australia Ltd [2015] VSC 648 Jones v Skyring [1992] HCA 39 Medical Board of Australia v Nugawela [2026] WASC 64 Nicholas Ni Kok Chin [2026] WASC 40 Nicholas Ni Kok Chin [2026] WASC 90 Sheraz Pty Ltd v Vegas Enterprises Pty Ltd (2015) 48 WAR 93; [2015] WASCA 4 The Principal Registrar of the Supreme Court v Chin [2012] WASC 7 -- 2 of 9 -- [2026] WASC 157 GETHING J Page 3 GETHING J: 1 By originating motion filed 16 April 2026, the applicant, Nicholas Ni Kok Chin, seeks leave pursuant to Vexatious Proceedings Restriction Act 2002 (WA) (VPRA) s 6(1) to commence proceedings (April Application). Leave is required as in 2012 the Supreme Court prohibited Mr Chin from instituting any proceedings in any Western Australian court or tribunal without the leave of that court or tribunal.1 The leave he seeks is to commence proceedings against the State of Western Australia and the Registrar of Titles (as nominal defendant under Transfer of Land Act 1893 (WA) (TLA) s 201(3)). The proposed proceedings will seek: (a) compensation under TLA s 201(1) and s 205(1); (b) declarations concerning the extinguishment of the statutory implied easement arising under Property Law Act 1969 (WA) (PLA) s 52 and Strata Titles Act 1985 (WA) (STA) s 4(5); (c) damages for deprivation of an estate or interest in land; and (d) such further orders as the Court considers appropriate. 2 In support of the April Application, Mr Chin filed the same day: (a) an affidavit (which is attached to the originating motion) (April Affidavit); (b) submissions (April Submissions); (c) addendum submissions (April Addendum). Mr Chin then filed Final Submissions on 19 April 2026. 3 This is the third application filed so far this year relating to the same dispute. In the first two applications, leave was not granted.2 4 I gave some consideration to whether the April Application could be determined on the papers. However, VPRA s 6(8) provides that the applicant is 'to be given an opportunity to be heard at the hearing of the application for leave'. This suggests a legislative intent that there be an oral hearing. So I convened a hearing. 1 The Principal Registrar of the Supreme Court v Chin [2012] WASC 7. 2 Nicholas Ni Kok Chin [2026] WASC 40 (Chin [No 1]); Nicholas Ni Kok Chin [2026] WASC 90 (Chin [No 2]). -- 3 of 9 -- [2026] WASC 157 GETHING J Page 4 5 In Chin [No 2] I set out the factual background to the dispute and summarised a number of the prior decisions, which I incorporate into this decision (and use the same definitions).3 The dispute concerns a development of units in Malaga (Malaga Property). The factual background to the April Application is in essence that on '12 February 2016, the tenants of Unit 1 relocated the lunch-bar business to Unit 10, thereby extinguishing the statutory implied easement and displacing the commercial utility of Unit 1'.4 The registered proprietors of Unit 1 was Mr Chin's son, though he says he retained full beneficial ownership and control. This is the same factual basis as set out in Chin [No 2] [5] - [6]. 6 Only one new point is made in the April Application. This centres on the application of PLA s 52. Mr Chin says in the April Affidavit: Upon subdivision of Strata Plan 34659, a statutory implied easement arose under: • s 52 Property Law Act 1969 (WA) • s 4(5) Strata Titles Act 1985 (WA) • Part V Properly Law Act 1969 (WA) • s 136C Transfer of Land Act 1893 (WA) These rights: • arise automatically on subdivision • do not require annotation on the title • are incidents of the land • cannot be extinguished except by lawful process The seven written instruments created by St Marks in 1997 satisfy s 34(1)(a) PLA and evidence the statutory implied rights. 7 Mr Chin submits that PLA s 52 is the 'statutory source of the easement'.5 He goes on:6 … the statutory implied easement relied upon arises under s 52 of the Property Law Act 1969. That provision creates easements of support, 3 Chin No 2 [5] - [15]. 4 April Affidavit, part C. 5 April Addendum, part 2. 6 April Addendum, part 4. -- 4 of 9 -- [2026] WASC 157 GETHING J Page 5 shelter, services, access and other necessary rights automatically upon subdivision, unless expressly excluded. Once created, s 136C of the Transfer of Land Act incorporates those easements into the incidents of registered land, meaning they bind successors and do not require notation on the title. The Strata Titles Act operates within that framework but does not create or extinguish implied easements. The extinguishment that occurred on 12 February 2016 was therefore unlawful, and the Registrar's failure to correct the register constitutes a deprivation of an interest in land under ss 201 and 205 of the Transfer of Land Act. Compensation follows. 8 PLA s 52 provides: (1) Any covenant, whether express or implied, or agreement entered into by a person with himself and one or more other persons shall be construed and be capable of being enforced in like manner as if the covenant or agreement had been entered into with the other person or persons alone. (2) This section applies to covenants or agreements entered into before or after the coming into operation of this Act. 9 The purpose of s 52 PLA is to modify the common law position that an agreement by one person with themself and others is void.7 In the context of a proposed strata development, it allows the developer to enter into covenants with itself as part of the subdivision process, and prior to the sale of the lots created. However, PLA s 52 is not a statutory source of any easement or covenant. It does not create any 'statutory implied easement' as suggested by Mr Chin in [7]. There is no other provision in the balance of PLA Part V which creates an easement of the kind referred to by Mr Chin in [7]. 10 There is no s 4(5) in the STA. Rather, STA s 4 simply provides that a 'note or example set out at the foot of a provision of this Act is provided to assist understanding and does not form part of this Act'. 11 TLA s 136C provides that a 'proprietor of land that is a subject of a plan may note, in an approved form, on the plan the location of an easement to which the land is proposed to be subject'. There is no evidence filed with the April Application that there was any easement noted on any plan relating to the Malaga Property. 7 Eureka Operations Pty Ltd v Viva Energy Australia Ltd [2015] VSC 648 [122] - [126] (Croft J) (referring to the equivalent provision in Property Law Act 1958 (Vic) s 82(1)). -- 5 of 9 -- [2026] WASC 157 GETHING J Page 6 12 In any event, on the materials before the court in the April Application: (a) there is no evidence that the owners of Unit 10 (former tenants of Unit 1) or their predecessors in title covenanted not to use the property for the purpose of a lunch bar; and (b) there is no evidence that any easement or covenant was granted to registered proprietors of Unit 1 (or Mr Chin for that matter) to use Unit 1 as a lunch bar to the exclusion of the other lots at the Malaga property being used for that same purpose. 13 At the hearing on 23 April 2026, Mr Chin referred the court to the Appeal Book filed in CACV of 2018 (Appeal Book). This appeal was the appeal which was the subject of the decision in Chin [2019] WASCA 116 (2019 Decision). I refer to the 2019 Decision in Chin [No 2] at [8] and [9]. Although this material was not in the evidence filed in the April Application, I have taken the view that I ought to consider the material and the submissions made on it in order to avoid further proceedings. So I obtained a copy of the Appeal Book from the Court of Appeal. 14 The primary document referred to by Mr Chin on the Appeal Book was the affidavit sworn by his son, Paul, dated 15 June 2018 in support of the originating summons which I referred to in Chin [No 2] at [8]. Mr Chin placed particular emphasis on the attachments to that document at pages 40 to 95 of the Appeal Book. 15 Axiomatically, the material in the Appeal Book was before the Court of Appeal and was taken into account in the 2019 Decision. I repeat what I said about the 2019 Decision in Chin [No 2] (footnotes omitted):8 In his oral submissions, Mr Chin referred to a number of prior decisions in which the issues raised in the Proposed Action were considered. The first was a decision of Justice Vaughan in 2018. Justice Vaughan gave ex tempore reasons for his decision, which were not the subject of a reported decision. However, his Honour's reasons are referred to by the Court of Appeal in Chin [2019] WASCA 116 (which I will refer to as the 2019 Decision). The decision of Justice Vaughan under appeal was to refuse to accept a notice of originating summons filed by Paul Chung Kiong Chin (Paul Chin), who I understand is the son of Mr Chin and the registered proprietor of Unit 1. The refusal was 8 Chin [No 2] [7] - [9] (footnotes omitted). -- 6 of 9 -- [2026] WASC 157 GETHING J Page 7 pursuant to Rules of the Supreme Court 1971 (WA) (RSC) O 67 r 5 on the ground that the proposed proceedings would be an abuse of process or a frivolous or vexatious proceeding. This was on the basis that the claim could not succeed, was doomed to fail and was plainly unsustainable. The Court of Appeal dismissed the appeal, observing that nothing 'in the appellant's grounds of appeal or submissions in support of those grounds provides any basis for doubting the correctness of the primary judge's conclusion that the material on which the proposed proceedings were based did not arguably give rise to an express or implied easement or restrictive covenant'…The Court of Appeal decision was the subject of an application for special leave in the High Court … The High Court refused to grant special leave, stating '[t]here is no reason to doubt the correctness of the Court of Appeal's judgment.'… In fairness to Mr Chin, there were some facts referred to in the 2019 Decision which enable me to consider the Proposed Action at its most cogent. It appears that after the expiry of their lease over the Malaga property, the Nguyens (referred to by the Court of Appeal as the 'intended defendants'), operated a lunch bar from another strata lot in the same strata plan, which they had purchased (referred to as Unit 10). By the proposed originating summons, Paul Chin sought to claim that Unit 1 enjoyed the benefit of an easement or restrictive covenant requiring that Unit 10 not be used as a lunch bar. Justice Vaughan concluded that:… (a) there was no evidence that the intended defendants, as owners of Unit 10, or their predecessors in title covenanted not to use the property for the purpose of a lunch bar; and (b) there is no evidence that any easement was granted to the appellant to use Unit 1 as a lunch bar to the exclusion of the other lots at the Malaga property being used for that same purpose. 16 The Court of Appeal concluded:9 Nothing in the appellant's grounds of appeal or submissions in support of those grounds provides any basis for doubting the correctness of the primary judge's conclusion that the material on which the proposed proceedings were based did not arguably give rise to an express or implied easement or restrictive covenant. Our examination of the material on which the appellant relies confirms that the primary judge's conclusion is undoubtedly correct. That material does not provide even a remotely arguable foundation for the asserted grant of an easement or restrictive covenant. The primary judge correctly concluded that the proposed proceedings would be an abuse of process or a frivolous or 9 2019 Decision [17]. -- 7 of 9 -- [2026] WASC 157 GETHING J Page 8 vexatious proceeding, for the reasons which his Honour gave. The appeal must be dismissed for that reason. 17 Having reviewed the material in the Appeal Book to which Mr Chin refers, unsurprisingly, I come to the same conclusion as Justice Vaughan at first instance and the Court of Appeal: the material does not provide even a remotely arguable foundation for the asserted grant of an easement or restrictive covenant. 18 I observe that seeking to re-agitate a question already determined is both an abuse of the processes of the court10 and a hallmark of a vexatious litigant.11 19 I add that, even if there was some evidence that an easement or restrictive covenant had been created, the barriers to claims against the State and the Registrar of Titles set out in Chin [No 2] [22] - [33] would remain insurmountable. 20 I find that there is no prima facie ground for the proposed action set out in the April Application for the purposes of VPRA s 6(5). Therefore, I must dismiss the application. 10 Sheraz Pty Ltd v Vegas Enterprises Pty Ltd (2015) 48 WAR 93; [2015] WASCA 4 [10] - [11] (Buss JA); Du Bray v RSM Australia [2026] WASC 113 [67] - [68] (Gething J). 11 Jones v Skyring [1992] HCA 39; (1992) 66 ALJR 810, 814 (Toohey J); Medical Board of Australia v Nugawela [2026] WASC 64 [244] (Gething J). -- 8 of 9 -- [2026] WASC 157 GETHING J Page 9 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CC Associate to the Hon Justice Gething 4 MAY 2026 -- 9 of 9 --