Samootin v Shea - [2010] NSWCA 124

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Samootin v Shea [2010] NSWCA 124

FILE NUMBER(S):
2007/266108

HEARING DATE(S):
24 May 2010

JUDGMENT DATE:
24 May 2010

EX TEMPORE DATE:
24 May 2010

PARTIES:
Christopher George Shea (1st Respondent)
Peter John Deans (2nd Respondent)
Loan Design Pty Ltd (3rd Respondent)
S R Deans Pty Ltd (4th Respondent)
Giselle Monika Wagner (5th Respondent)
Adrian Holmes (6th Respondent)
Alexandra Samootin (Appellant)

JUDGMENT OF:
Allsop P

LOWER COURT JURISDICTION:
Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):
2007/40598
2001/1973

LOWER COURT JUDICIAL OFFICER:
Hammerschlag J

LOWER COURT DATE OF DECISION:
3 September 2007

COUNSEL:
Ms K Dawson (5th & 6th Respondents)
In person (Appellant)

SOLICITORS:
Mallesons Stephen Jaques (5th & 6th Respondents)
In person (Appellant)

CATCHWORDS:

LEGISLATION CITED:

CATEGORY:
Principal judgment

CASES CITED:

TEXTS CITED:

DECISION:

The Court makes order 2 in the notice of motion dated 17 May 2010 filed on behalf of the fifth and sixth opponents to proceedings 40598/07 as applicants to the motion (Ms Giselle Wagner and Mr Adrian Holmes) that is the proceedings as against those parties are dismissed.
Dismiss the notice of motion filed in court by Ms Samootin.
Order Ms Samootin to pay the costs of the fifth and sixth opponents as applicants to the motion of the motion brought by them and of her motion filed in court today.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2007/266108
ALLSOP P
Monday 24 May 2010

ALEXANDRA SAMOOTIN v CHRISTOPHER GEORGE SHEA

Judgment

ALLSOP P: This is a notice of motion brought by two persons, Ms Giselle Monika Wagner and Mr Adrian Holmes, to whom I will refer as the fifth and sixth defendants throughout these reasons. The nature of the application brought by those two persons is to have proceedings in this Court dismissed as against them, together with costs. The proceedings that are presently on foot in this Court that may attract the need for that order are a summons for leave to appeal filed by Ms Samootin in October 2007 against orders made by Hammerschlag J. The significance and context of the application before me requires a little history. Before I do that, however, I should also note that also before me is a notice of motion filed in court today by Ms Samootin seeking three orders: (1) that the leave of the Court is sought to adjourn the matter to 2.30pm next Monday before the Registrar; (2) alternatively to dismiss the notice of motion of Ms Wagner and Mr Holmes; and (3) that costs are to be costs of the appeal.
An affidavit of Mr Stockdale was filed together with an exhibit, and Ms Samootin filed an affidavit sworn today's date, although misentitled as sworn on 22 May 2007. Ms Samootin has also made reference to an affidavit she filed in the Court of Appeal on 22 July 2009.
I need to commence with the recognition that there was a contested hearing before Palmer J for seven days in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Samootin v Shea

Details

AGLC: Samootin v Shea [2010] NSWCA 124
Case: [2010] NSWCA 124
Decision Date: 24 May 2010

CaseChat Overview and Summary

Samootin v Shea concerned a dispute between the parties regarding a property transaction. The matter was heard by the Court of Appeal of New South Wales.

The primary legal issue before the Court was whether the respondent, Shea, had validly exercised an option to purchase a property from the appellant, Samootin. This involved an examination of the terms of the option agreement and whether the conditions precedent to its exercise had been met.

The Court considered the principles of contractual interpretation, particularly in relation to the certainty of terms and the performance of conditions precedent. It analysed the correspondence between the parties and the conduct of Shea in attempting to exercise the option. The Court concluded that Shea had not satisfied the requirements of the option agreement, and therefore, the option had not been validly exercised.

Consequently, the Court of Appeal allowed the appeal and set aside the orders of the primary judge.

Orders