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1 January 2020
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I have questions about an Easement Dispute which I brought before SAT, DC, SCWA, COA and finally the HCA. The issue is: There is no exclusivity principle as decided by the judges because the lawyer preparing the conveyance should have documented it in the title deeds or by a separate covenant.

I do not agree with this decision of all the judges based on the following grounds:

1) The Easement was created pursuant to s.52 Property Law Act, 1969 (PLA), subdivisional: according to the provision of the Strata Titles Act, 1985; Implied because it is part of Part V of PLA; Quasi Easement: because it is the easement of the Wheeldon v Burrows kind which was enacted into s.52 of the PLA; collectively I call it S.52PLAISQE.

2) Your Easement dispute is the same as mine.

3) All the judges are not able to give the statement of the reason for their allegations of Non Exclusivity which means that S.52PLAISQE does not exist (the Non-Explication).

4) By reason of their Non-Explication, their honours within the legal system of Western Australia including the High Court of Australia who has decided the Non-Exclusivity argument are not functus officio i.e. their task is not completed and their decisions can be set aside because they are either void or voidable: the reason is that they are missing the jurisdictional facts of the S.52PLAISQE which empowers them in their judgment seat.

Their Non-Explicability means that their judgement seats ought to be vacated (the Re-Opening to Set the Decision Aside).

5) I have written to the Court of Appeal Registrar and Her Honour had cited Amaca v Hannell to state that there are no legislative provisions to re-open the final decision of the COA: this is not correct as any decision that is the subject of the Re-Opening to Set the Decision Aside is not a final decision.

6) I am searching for a solicitor who can handle this case in accordance with the correct law and I cannot find any. I wish to attach a proposed writ of summons which I want a solicitor to approve because I have to become the Plaintiff instead of the beneficiary of that Easement.

The reason being it was I who as a constructive trustee de son tort did purchase the subject property for and on behalf of the Beneficiaries and they have a right of action against me for breach of my fiduciary duties as a Constructive Trustee. I would really like to post this proposed writ for any lawyer to approve because I was a qualified lawyer too and is no longer in practice. However, there is no space for me to attach this proposed writ.

The following is an extract of my proposed plaint:

The plaintiff's claims is for:

1) The return of the incorporeal hereditaments or the easement rights of unit 1/383 Victoria Road Lunch Bar, Malaga WA 6090 by the Defendants to the Plaintiff to wit: the section 52 Property Law Act, 1969 (WA) implied, subdivisional quasi-easements (s.52PLAISQE) of the Wheeldon v Burrows kind, which the Defendants have unlawfully moved from their hitherto-leased premises in Unit 1/383 Victoria Road from the Plaintiff into their own premises in unit 10/383 Victoria Road, Malaga on 14.2.2016 without:

1.1) the consent of the Plaintiff;

1.2) the said s.52PLAISQE being either abandoned or ever extinguished by the Plaintiff pursuant to s.129C of the Transfer of Land Act, 1893 (WA).

(The Return of the S.52PLAISQE).



2) The Plaintiff is at all material times the constructive trustee of the beneficiaries of the constructive trust created on 19.1.2000 for his two sons (De Son Tort Constructive Trustee), namely: (The Beneficiaries of the Constructive Trust):

2.1. initially his first son ICMC acting as Attorney for his second son PCKC.

2.2. Finally, for his second son PCKC who became the registered owner on 9.11.2007.

3) The Beneficiaries of the Constructive Trust therefore inherited the S.52PLAISQE from the Vendors who are Mr IF and Mrs. EF and they are the predecessor in title to the S.52PLAISQE who were conferred it by the original land owner of Lot 12 (383 Victoria Road, Malaga) who is St. Marks Investments Pty Ltd (the Original Owner).

4) The Original Owner created the s.52PLAISQE by:

4.1. First subdividing Lot 12 into twenty units in 1996 with common ownership;

4.2. Using its common ownership it applied for and was granted approval to develop the twenty units into 16 factory units and 4 warehouse/showrooms on 13.8.1997 (Common Ownership of 20 Units);

4.3. Relying on the Common Ownership of 20 Units and utilizing the principle of the unity of seisin and restrictive covenants pursuant to Part V of the Property Law Act, 1969 WA, it applied for and was granted the S.52PLAISQE on 17.12.1997 (the S.52 PLAISQE Approval).

4.4. It sold to the Vendors the S.52 PLAISQE Approval at a premium price and made the profit for which the Plaintiff paid for on 23.2.200 on top of the profit made by the Vendor and there was no requirement in law to register the unity of seisin in the title deeds (The Price Paid by Plaintiff for the S.52PLAISQE).

4.5. There was never a merger of the unity of seisin or a release of the restrictive covenants or abandonment or relinquishment of the S.52PLAISQE pursuant to s.129C of the Transfer of Land Act, 1893 (WA) (Non-Relinquishment of S.52PLAISQE).

Particulars of the Non-relinquishment of S.52PLAISQE:

1) Only the Supreme Court of WA has the powers to decide on an Application for Relinquishment of the S.52PLAISQE as conferred by s.129C of the Transfer of Land Act 1893 (WA) (the s.129C TLA Application).

2) At all material times, neither the Defendants nor the Plaintiff or any other interested persons had ever made the S.129C TLA Application (Non-Existent s.129C TLA Application).

3) Albeit the Non-Existent s.129C Application, the Beneficiary of the De Son Tort Constructive Trustee, at all material times never did change the use of the S.52PLAISQE, nor ever did consent to such a change to his own detriment pursuant to subs.129C(1)(a), (b) and (c) of the Act (the Unfulfilled Conditions for S.129C TLA Application).

3) The Return of the s.52PLAISQE and the Plaintiff as Purchaser of the s.52PLAISQE is not being constrained by the orders made against the Plaintiff in the THE PRINCIPAL REGISTRAR OF THE Supreme court -v- C [2012] WASC 7] as it is a separate cause of action which arises from his consumer rights as the Constructive Trustee for his sons as the beneficiaries when he purchased the Victoria Road Lunch Bar on 19.1.2000 (the Plaintiff’s Unimpeded Right to Sue).



2) The Basis in Law and Equity for the Return of the s.52PLAISQE is that both the Defendants:

2.1. Had entered into a tripartite agreement dated 4.4.2005 to purchase the business of the Victoria Road Lunch Bar as a going concern from its then-owner one Ms. MTN and the owner of the s.52PLAISQE for the continuing lease of the Land, who is the Plaintiff (Purchase of Business Only).

2.2. The continuing operation of the Unit 1/383 Victoria Road Lunch Bar by the Defendants is conditional to their obtaining a lease of the land known as Unit 1/383 Victoria Road, Malaga from the Plaintiff (The Continual Operation of the Victoria Road Lunch Bar).

2.3. The Purchase of Business Only without the Continual Operation of the Victoria Road Lunch Bar is of no economic utility to the Defendants, which the Defendants at all material times is aware of and have constructive notice thereof (the Non-Utilitarian Value)

2.4. By reason of the Non-Utilitarian Value, the Defendants and or their predecessor-in-title of the Purchase of Business Only and not the Purchase of Freehold of Unit 1/383 Victoria Road, Malaga (the Land), did enter into a Lease with the Plaintiff for the period beginning with the 5th day of March, 2004 for the Land until its expiration on 14.2.2016 (the Use of S.52PLAISQE During the Subsistence of the Lease).

3) The Intangible Property Rights of the S.52PLAISQE is never separable from the Land but the Defendants have effected that Impossibility in Law (the Anomaly) and therefore the Defendants continuing use of Unit 10/383 Victoria Road Lunch Bar is to be restrained by an injunction Order of this Court which has the responsibility/duty to put that Anomaly aright (the Injunction to Cease and Decease the Operation of Unit 10/383 Lunch Bar).



3) Along with the Injunction to Cease and Decease the Operation of Unit 10/383 Victoria Road, this Court do grant the Plaintiff the concomitant Economic Loss suffered by the Beneficiaries of the Constructive Trust of the Plaintiff: such to be assessed as from 14.2.2016 till today (the Economic Loss Suffered by the Plaintiff).



4) The Economic Loss Suffered by the Plaintiff includes all damages that would be involved in putting the Plaintiff back into his former position as if the Use of S.52 PLAISQE during the Subsistence of the Lease had continued without abatement.



5) Any other relief deemed fit by this Court.



6) Costs for the Plaintiff.
 
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