NICHOLAS NI KOK CHIN [2026] WASC 90 (27 March 2026)

1. The claim for which Mr Chin seeks leave is described in the March Application in the following terms (bold in original):
   1. The Plaintiff, Nicholas Ni Kok Chin, is the original purchaser of Unit 1, 383 Victoria Road, Malaga. His sons, Ignatius Chung Mian Chin and Paul Chung Kiong Chin, were nominees for the purpose of registration of the title deeds only. At all material times, the Plaintiff remained the directing mind, financier, and beneficial owner of the property and the associated lunch bar business.
   2. The Plaintiff acquired the property and business in 2000 and operated the lunch bar continuously until the displacement of its commercial utility following the Nguyen lease and subsequent events.
   3. The Plaintiff suffered loss of commercial utility, loss of rental income, and loss of business value arising from administrative oversight, failure to protect pre-existing commercial rights, and the displacement of the longstanding lunch bar use.
   4. The Plaintiff made complaints to the Local Government Inspectorate and to Parliament regarding systemic oversight failures. The City of Swan has admitted the relevant planning facts (Grulke), and no relief is sought against the City.
   5. The Plaintiff seeks compensation under current law, not under repealed provisions of the Transfer of Land Act 1893 (WA).

1. In his affidavit, Mr Chin deposes that he purchased Unit 1, 338 Victoria Road, Malaga (Unit 1) in 2000. In the same transaction he purchased the lunch bar business that was then operating from Unit 1. His sons were on the title, but Mr Chin says he retained full beneficial ownership and control. He provided the full purchase price, negotiated the transaction and operated the associated lunch bar business. He and his family then carried on the business of a lunch bar from Unit 1.
2. In 2015, Mr Chin leased Unit 1 to a Mr and Mrs Nguyen (Nguyens). The lease permitted them to operate the lunch bar. However, the Nguyens made alterations and changes to Unit 1 and ultimately returned it in a dilapidated state which meant that a lunch bar could no longer be operated from it. This, says Mr Chin, meant that the commercial utility of Unit 1 was extinguished, causing him loss of rental income and loss of business value.

1. In his oral submissions, Mr Chin referred to a number of prior decisions in which the issues raised in the Proposed Action were considered.
2. 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 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'.[3] The Court of Appeal decision was the subject of an application for special leave in the High Court.[4] 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.'[5]
3. 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:[6]

(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.

1. The second decision referred to by Mr Chin was one by Justice Lemonis. This was an application by Mr Chin seeking leave pursuant to VPRA s 6(1).[7] It was dismissed by his Honour on 11 September 2024. His Honour delivered gave ex tempore reasons for his decision, which were again not the subject of a reported decision. As Mr Chin referred to this decision in his oral submissions, I have reviewed the transcript of this decision.
2. The history is apparent from the decision of Justice Lemonis.[8] There was an issue about the scope of the orders made by Justice Murray which I don't need to consider for present purposes. Mr Chin brought proceedings in the Magistrates Court of Perth (GCLM/1010 of 2021). Those proceedings came before her Honour Magistrate Ward. On 4 April 2022, Magistrate Ward found that Mr Chin had no standing to bring the proceedings. In that respect, her Honour noted in her reasons that the proceedings concerned a property of which Mr Chin was not the registered proprietor and a lease to which he was not a party. Her Honour also declined to grant leave to bring the proceedings under VPRA s 6(1) as her Honour was not satisfied that there was a prima facie ground for the proceedings. Her Honour therefore made orders striking out Mr Chin's case statement and entering judgment for the defendant.
3. Mr Chin then commenced proceedings in the District Court concerning the same subject matter. This was dismissed by Judge Tovey, in part because the application was incomprehensible and in part because there was no prima facie ground warranting a grant of leave to institute the proceedings.
4. Mr Chin then filed a notice of appeal against the decision of Magistrate Ward. The District Court initially accepted this for filing, but once it was identified that Mr Chin had not obtained leave pursuant to VPRA s 6(1), it was rejected.
5. Justice Lemonis held that, to the extent that the application before him was to seek leave to commence proceedings in the District Court, it was misconceived as the application had to be made in the District Court. To the extent that the application was to seek leave to commence a judicial review application against the decision of Judge Tovey in the Supreme Court, there was no arguable basis for it, and leave would not be granted pursuant to VPRA s 6(1).
6. In the oral hearing before me, Mr Chin stated that the effect of the decisions considered by Justice Lemonis, and his Honour's decision, was that he had exhausted all avenues to sue the Nguyens directly.

1. In his affidavit, Mr Chin sets out the basis for the Proposed Proceedings in the following terms (bold in original):

1. I made formal complaints to the Local Government Inspectorate and to Parliament regarding the displacement of commercial utility and the failure to protect pre-existing commercial rights.
2. The City of Swan, through officer Grulke, confirmed that Unit 1 continued to hold valid approval for lunch bar use. This demonstrates that the loss did not arise from planning changes but from administrative oversight and displacement.
3. The failure to protect the longstanding commercial utility of Unit 1 has caused ongoing financial loss.

1. As a result of the displacement of commercial utility and administrative failures, I suffered:
   • loss of commercial utility of Unit 1
   • loss of rental income
   • loss of business value
   • consequential financial losses
2. These losses are ongoing and directly. attributable to administrative oversight failures.

1. The proposed proceeding seeks compensation under current law, not under repealed provisions of the Transfer of Land Act 1893 (WA).
2. The claim is based on:
   • administrative negligence
   • systemic oversight failure
   • breach of statutory duty
   • misfeasance in public office (if established)
   • displacement of pre-existing commercial rights
3. He then says that:

(a) there is an implied easement on subdivision, which establishes implied rights of access, drainage, and support from subdivision;

(b) that these rights form part of the legal incidents of the land unless lawfully extinguished;

(c) that extinguishment requires lawful process, notice and procedural fairness; and

(d) that his implied sub-divisional quasi-easement was extinguished on 14 February 2016 without notice; and

(e) only a court can correct a defective title position arising from unlawful administrative action.

(a) over the period 2016 to 2018 the City of Swan had a duty to act fairly in planning decisions and failed to do so by making decisions without lawful reasoning and denying procedural fairness;

(b) the court should declare that 'the extinguishment of the implied subdivisional quasi-easement on 14 February 2016' occurred without lawful authority, without notice or procedural fairness and contrary to Property Law Act 1969 (WA) s 52;

(c) over the period 2018 to 2020 Landgate failed to correct a defective title and failed to provide reasons for not doing so;

(d) the court should order the Registrar of Titles to correct the defective title position, restore the implied subdivisional quasi‑easement or otherwise rectify the register;

(e) the court should order Landgate to consider his rectification request according to law; and

(f) alternatively, the court should remit the matter to Landgate or the City of Swan for reconsideration according to law.

1. In oral submissions, Mr Chin said that the primary basis for the Proposed Action was a claim pursuant to Transfer of Land 1893 (WA) (TLA) s 201(3). In full context, it provides:
   1. Compensation of person deprived of land

(1) Any person deprived of land or of any estate or interest in land in consequence of fraud or through the bringing of such land under the operation of this Act or by the registration of any other person as proprietor of such land estate or interest or in consequence of any error or misdescription in any certificate of title or in any entry or memorandum in the Register may bring and prosecute an action at law for the recovery of damages against the person upon whose application such land was brought under the operation of this Act or such erroneous registration was made or who acquired title to the estate or interest through such fraud error or misdescription.

(2) Despite subsection (1) except in the case of fraud or of error occasioned by any omission misrepresentation or misdescription in the application of such person to bring such land under the operation of this Act or to be registered as proprietor of such land estate or interest or in any instrument signed by him such person shall upon a transfer of such land bona fide for value cease to be liable for the payment of any damage beyond the value of the consideration actually received which but for such transfer might have been recovered from him under the provisions herein contained.

(3) In such last-mentioned case and also in case the person against whom such action for damages is directed to be brought as aforesaid shall be dead or shall have been adjudged bankrupt or cannot be found within the jurisdiction of the Supreme Court then and in any such case such damages with costs of action may be recovered from the State by action against the Registrar as nominal defendant.

(4) All damages and costs to be paid by the State under this section shall be charged to the Consolidated Account and this section appropriates the Consolidated Account accordingly.

(5) In estimating such damages the value of all buildings and other improvements erected or made subsequently to the deprivation shall be excluded.

1. Mr Chin said that he then had a secondary basis for the Proposed Action, being TLA s 205(1). That subsection provides (again in context):
   1. Actions for damages may in some cases be brought against Registrar as nominal defendant

(1) Any person sustaining loss through any omission mistake or misfeasance of the Registrar or any other officer or clerk in the execution of their respective duties under the provisions of this Act or by any error omission or misdescription in any certificate of title or any entry or memorandum in the Register or by the registration of any other person as proprietor and who by the provisions of this Act is barred from bringing an action of ejectment or other action for the recovery of land estate or interest may in any case in which the remedy by action for recovery of damages as herein provided is inapplicable bring an action against the State with the Registrar as nominal defendant for recovery of damages.

(2) In estimating those damages however the value of all buildings and other improvements erected or made subsequently to the loss or deprivation shall be excluded.

1. Mr Chin then submitted that, on either basis, the Proposed Action did not fall within the circumstances in which the State is not liable as set out in TLA s 196. That section provides:
   1. State not liable in certain cases

(1) The State shall not under any circumstances be liable for compensation for any loss damage or deprivation occasioned by any breach by a registered proprietor of any trust, whether express or implied or constructive, or by the improper exercise of any power of sale expressed or implied in any mortgage or encumbrance; in any case in which the same land may have been included in 2 or more grants from the Crown or transfers of Crown land in fee simple; nor shall the State be liable in any case in which loss or deprivation has been occasioned by any land being included in the same certificate of title with other land through misdescription of boundaries or parcels of any land unless in the case last aforesaid it shall be proved that the person liable for compensation and damages is dead or has absconded or has been adjudged bankrupt or the sheriff shall certify that such person is unable to pay the full amount awarded in any action for recovery of such compensation and damages.

(1A) Any amount paid by the State under section 201 on account of any person who may have absconded may be recovered by the State from such person by action in the name of the Registrar at any time thereafter if such person shall be found within the jurisdiction of the Supreme Court.

(1B) The State shall be liable for such amounts only as the sheriff shall fail to recover from the person liable as aforesaid.

(2) The State shall not be liable for compensation for any loss, damage or deprivation occasioned by any error in -

(a) the description of the area, boundaries or position of a parcel of Crown land to which a certificate of Crown land title endorsed with the words "Subject to survey" relates; or

(b) a qualified certificate of Crown land title; or

(c) a document accepted for recording or registration in respect of a qualified certificate of Crown land title; or

(d) the order of priority of a document recorded or registered in respect of a qualified certificate of Crown land title.

Is there a prima facie ground for an action pursuant to TLA s 201(3)?

1. It is the case that in certain limited circumstances an action may be commenced against the Registrar (as nominal defendant) seeking damages pursuant to TLA s 201(3). Mr Chin does not rely on TLA 201(2), only a damages claim pursuant to s 201(1). That being so, there are two prerequisites before an action can be commenced against the Registrar:

(a) there is a person against whom an action for damages pursuant to s 201(1) could have been brought; and

(b) the person is dead, bankrupt or cannot be found within the jurisdiction of the Supreme Court.

1. There are then three prerequisites to an action for damages pursuant to TLA s 201(1), being:

(a) the person seeking to bring the action must have been deprived of land or of any estate or interest in land;

(b) the deprivation in (a) must have been in consequence of fraud or through the bringing of such land under the operation of the TLA or by the registration of any other person as proprietor of such land estate or interest or in consequence of any error or misdescription in any certificate of title or in any entry or memorandum in the Register; and

(c) the action must be against the person upon whose application such land was brought under the operation of the TLA or such erroneous registration was made or who acquired title to the estate or interest through such fraud error or misdescription.

1. In my assessment, Mr Chin has difficulties with all three limbs.
2. As to the first, Mr Chin is not the registered proprietor of the Malaga property. In any event, the precise nature of the estate or interest in land he says he is deprived of is not evident in the materials before the court in the March Application. However, assuming that the precise nature of the estate of interest in land he was deprived of was the same as asserted in the proceedings before Justice Vaughan, that is restrictive covenants (see [9]), there is again no evidence in the materials before the court in the March Application to support their existence.
3. As to the second, although Mr Chin mentioned fraud in oral submissions, there is nothing in the materials before the court in the March Application to suggest that either the Nguyens or any staff of either the City of Swan or Landgate engaged in fraud. Rather, the error asserted by Mr Chin is a failure by the Registrar to amend the certificate of title for Unit 1 (presumably to correct the position as regards easements as set out in [9]). However, there is nothing in the materials in the March Application to suggest that there was in fact an error or misdescription in the certificate of title or in an entry in the memorandum in relation to Unit 1.
4. As to the third, Mr Chin says that the relevant person was either the Nguyens or the persons from whom he purchased Unit 1 (referred to as the 'Filippous').[9] However, there is nothing in the materials before the court in the March Application that, if there was in fact an error or misdescription in the certificate of title or in an entry in the memorandum in relation to Unit 1, it was made as a result of an application by either the Nguyens or the Filippous.
5. In relation to the potential cause of action in TLA s 201(3), the findings in [25] to [27] are to the effect that there was no person against whom Mr Chin could have brought an action for damages falling within s 201(1). Even if there was a basis for an action for damages against either the Nguyens or the Filippous, there is nothing in the materials before the court in the March Application suggest that the Nguyens or the Filippous. are dead, bankrupt or cannot be found within the jurisdiction. Mr Chin suggested that s 201(3) should be interpreted to also include the case where attempts to recover from the Nguyens and the Filippous have been exhausted. However, there is no basis for such an interpretation. The ordinary meaning of the words 'dead or shall have been adjudged bankrupt or cannot be found within the jurisdiction of the Supreme Court' are plain and comprehensive.
6. For these reasons, there is no prima facie ground for an action by Mr Chin against either the State or the Registrar pursuant to TLA s 201(3).

Is there a prima facie ground for an action pursuant to TLA s 205(1)?

1. In relation to the causes of action in TLA s 205(1), there is nothing in the materials before the court in the March Application suggesting a prima facie ground that Mr Chin sustained any loss:

(a) 'through any omission mistake or misfeasance of the Registrar or any other officer or clerk in the execution of their respective duties under the provisions' of the TLA; or

(b) by any error omission or misdescription in any certificate of title or any entry or memorandum in the Register.

1. So there is no prima facie ground for an action by Mr Chin against either the State or the Registrar pursuant to TLA s 205(1).

1. I accept the point made by Mr Chin that the cause of action he proposes is not one barred by TLA s 196(1). However, that finding does not assist him where there is otherwise no prima facie ground for the cause of action.
2. The potential causes of action which Mr Chin sets out at [16] are broader than the TLA. For completeness' sake, I find that there is no prima face ground for a potential cause of action against the State:

(a) on the basis that the State owed Mr Chin a relevant duty of care (either at common law or a statutory duty) nor that, if it did, there was any act or omission by the State which could constitute a breach of any such duty;

(b) for misfeasance in public office;

(c) on the basis of a 'systemic oversight failure' by the State (noting that, even if there was evidence suggesting this, that alone would not found a cause of action against the State);

(d) for judicial review of a decision by the State; or

(e) on the basis that the State displaced any 'pre-existing commercial rights' of Mr Chin.

I add that the events of concern to Mr Chin go back to 2015. Even if there was a potential cause of action against the State, it is likely to face insurmountable limitation defences.[10]

1. I find that there is no prima facie ground for the Proposed Action for the purposes of VPRA s 6(5). Therefore, I must dismiss the application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] The Principal Registrar of the Supreme Court v Chin [2012] WASC 7.

[2] Nicholas Ni Kok Chin [2026] WASC 40 [3] - [4].

[4] Ex parte Chin [2019] HCASL 382.

[5] Ex parte Chin [2019] HCASL 382 [1].

[8] CIV 1973 of 2024, ts 11.9.24, pages 20 - 23.

[9] CIV 1279 of 2026, ts 19.3.26, page 8.

[10] See generally: Limitation Act 2005 (WA) s 12; RSC O 56 r 1, 2(4).