New South Wales
Court of Appeal
CITATION: Samootin v Shea [2010] NSWCA 371 HEARING DATE(S): 8 November 2010
JUDGMENT DATE:
21 December 2010JUDGMENT OF: Beazley JA at 1; Hodgson JA at 2; Campbell JA at 10 DECISION: (1) All applications presently on foot by Alexandra Samootin seeking leave to appeal from a decision of Hammerschlag J of 16 July 2007, 17 July 2007, 30 July 2007 or 3 September 2007 (including without limiting the generality of the foregoing, all applications for leave to appeal from a decision of Hammerschlag J that have been filed in proceedings formerly known as 40598 of 2007 in the Court of Appeal, and now known as 2007/266108) are dismissed with costs.
(2) All applications made by Alexandra Samootin presently on foot seeking leave to appeal, or an extension of time in which to seek leave to appeal, from any decisions of Palmer J of 1 August 2003, 27 August 2003, 24 June 2004 or 28 June 2004 (including without limiting the generality of the foregoing, any such application filed in proceedings formerly known as 40598 of 2007 and now known as 2007/266108) are dismissed with costs.
(3) The Notice of Motion filed 4 June 2010 is dismissed with costs.
(4) All applications made by Alexandra Samootin presently on foot
(i) seeking leave to adduce further evidence in any application seeking leave to appeal from a decision of Hammerschlag J of 16 July 2007, 17 July 2007, 30 July 2007 or 3 September 2007, or;
(ii) seeking leave to receive further evidence in any application made by Alexandra Samootin presently on foot seeking leave to appeal, or an extension of time in which to seek leave to appeal, from any decision of Palmer J of 1 August 2003, 27 August 2003, 24 June 2003 or 28 June 2004, or;
(iii) to receive further evidence in the notice of motion filed 4 June 2010;
are dismissed with costs.
(5) The application made by Alexandra Samootin for an injunction restraining the registered proprietor of 24 Oxford Falls Road, Beacon Hill from dealing with that property is dismissed.
[The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]CATCHWORDS: PROCEDURE – courts and judges generally – whether proceedings incompetent – question can be brought for determination by the Court only by a person who has standing to raise that question – a bankrupt does not have standing where the rights necessary to bring the proceedings have vested in Official Trustee – applications for leave to appeal, for extension of time in which to seek leave to appeal, for review of interlocutory decision made in proceedings seeking leave to appeal, to admit…
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- AGLC
- Samootin v Shea [2010] NSWCA 371
- Case
- [2010] NSWCA 371
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether Ms. Samootin had the legal standing to pursue her applications, particularly in light of her bankruptcy and the vesting of her property rights in the Official Trustee. This encompassed questions concerning the effect of bankruptcy on a bankrupt's right to commence or continue legal actions, the distinction between personal injury claims exempt from vesting and property rights that do vest, and the impact of a discharge from bankruptcy on previously vested assets and causes of action. The Court also considered the circumstances under which a bankrupt might seek to compel the Official Trustee to exercise powers or allow the use of the Trustee's name in proceedings.
The Court reasoned that a bankrupt generally lacks standing to bring proceedings where the relevant rights have vested in the Official Trustee. While actions for personal injury or wrongs done to the bankrupt are typically exempt from vesting, the Court found that Ms. Samootin's claims related to the loss of property, and thus constituted a property right that had vested in the Official Trustee. Furthermore, even though a discharge from bankruptcy does not cause vested assets to revert to the bankrupt, Ms. Samootin's discharge did not restore her capacity to litigate rights relating to her property as at the time of her bankruptcy. The Court also noted that the relief available to a bankrupt when a trustee declines to sue or appeal is to seek a court order directing the trustee, not to pursue the action independently. Consequently, as all relevant proceedings were deemed incompetent, there was no serious question to be tried to justify the grant of an injunction.
Accordingly, the Court dismissed all applications made by Alexandra Samootin, including those seeking leave to appeal, extensions of time, leave to adduce further evidence, and the application for an injunction, with costs.
Orders
Orders of the court
(1) All applications presently on foot by Alexandra Samootin seeking leave to appeal from a decision of Hammerschlag J of 16 July 2007, 17 July 2007, 30 July 2007 or 3 September 2007 (including without limiting the generality of the foregoing, all applications for leave to appeal from a decision of Hammerschlag J that have been filed in proceedings formerly known as 40598 of 2007 in the Court of Appeal, and now known as 2007/266108) are dismissed with costs.
(2) All applications made by Alexandra Samootin presently on foot seeking leave to appeal, or an extension of time in which to seek leave to appeal, from any decisions of Palmer J of 1 August 2003, 27 August 2003, 24 June 2004 or 28 June 2004 (including without limiting the generality of the foregoing, any such application filed in proceedings formerly known as 40598 of 2007 and now known as 2007/266108) are dismissed with costs.
(3) The Notice of Motion filed 4 June 2010 is dismissed with costs.
(4) All applications made by Alexandra Samootin presently on foot
(i) seeking leave to adduce further evidence in any application seeking leave to appeal from a decision of Hammerschlag J of 16 July 2007, 17 July 2007, 30 July 2007 or 3 September 2007, or;
(ii) seeking leave to receive further evidence in any application made by Alexandra Samootin presently on foot seeking leave to appeal, or an extension of time in which to seek leave to appeal, from any decision of Palmer J of 1 August 2003, 27 August 2003, 24 June 2003 or 28 June 2004, or;
(iii) to receive further evidence in the notice of motion filed 4 June 2010;
are dismissed with costs.
(5) The application made by Alexandra Samootin for an injunction restraining the registered proprietor of 24 Oxford Falls Road, Beacon Hill from dealing with that property is dismissed.
[The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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