Samootin v Shea - [2007] NSWSC 785

CITATION: Samootin v Shea [2007] NSWSC 785

HEARING DATE(S): 6 July 2007

JUDGMENT DATE :
6 July 2007

JURISDICTION: Equity

JUDGMENT OF: Hamilton J

DECISION: Cross claim summarily dismissed.

CATCHWORDS: PROCEDURE [93] - Summary disposal - No basis for proceedings – Plaintiff undischarged bankrupt – Interests in property subject of cross claim vested in trustee in bankruptcy.

LEGISLATION CITED: Civil Procedure Act 2005 s 22
Uniform Civil Procedure Rules 2005 r 9.1

CASES CITED: Samootin v Shea (No 2) [2003] NSWSC 695

PARTIES: Alexandra Samootin (P))
Christopher George Shea (1D)
Peter John Deans (2D)
Loan Design Pty Ltd (3D)
S R Deans Pty Ltd (4D)
Giselle M Wagner (5D)
Adrian Holmes (6D)

FILE NUMBER(S): SC 1973/01

COUNSEL: In person (P)
D Hogan-Doran (2-4Ds)
K W Dawson (5&6Ds)

SOLICITORS: In person (P)
Derham Houston (2-4Ds)
Mallesons Stephen Jaques (5&6Ds)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 6 JULY 2007

1973/01 ALEXANDRA SAMOOTIN v CHRISTOPHER GEORGE SHEA & ORS

JUDGMENT

1 HIS HONOUR: This matter has a long history. There was a trial before Palmer J which resulted in a judgment by his Honour: Samootin v Shea (No 2) [2003] NSWSC 695. Among the orders made as a result of that hearing was an order for an inquiry and accounts as to dealings in two properties at 24 and 26 Oxford Falls Road, Beacon Hill that were the central subject matter of the proceedings. That inquiry is currently fixed for hearing before Hammerschlag J on 16 and 17 July 2007. I take it that the reason that the inquiry is listed before a Judge of the Court rather than an Associate Judge is that there is listed for hearing at the same time the first cross claim in the proceedings, which seeks, among other orders, an order for possession against the plaintiff in respect of 26 Oxford Falls Road, Beacon Hill.

2 In the meantime, the plaintiff has commenced a second cross claim by a statement of cross claim filed on 20 June 2007. By that statement of cross claim she claims relief which is essentially associated with the same two pieces of property at 24 and 26 Oxford Falls Road, Beacon Hill and seeks to agitate claims concerning rights which she says she has in relation to those properties.

3 The 5th and 6th cross defendants, who were also the 5th and 6th defendants to the claim, seek the summary termination of the second cross claim. They take a number of objections to its validity.

4 First, they raise the fact that the statement of cross claim in the second cross claim was filed without any leave for its filing.

5 Secondly, they prove that Ms Samootin is an undischarged bankrupt, having had her estate sequestrated by a sequestration order made on 24 May 2006, and that she has not been discharged from that bankruptcy, a recent application for discharge having been refused by a Federal Magistrate. Any interest of the cross claimant…

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 [2007] NSWSC 785
Case: [2007] NSWSC 785
Decision Date: 6 July 2007

CaseChat Overview and Summary

In the matter of Samootin v Shea, the plaintiff, Samootin, sought to proceed with proceedings against Shea regarding interests in a property. The defendant, Shea, responded by filing a cross claim, which led to a summary disposal application due to Samootin being an undischarged bankrupt. The interests in the property were vested in the trustee in bankruptcy, complicating the legal standing of Samootin to pursue the claims. The court was required to determine whether the plaintiff had the necessary standing to bring the action given the bankruptcy status and the vesting of property interests in the trustee.

The primary legal issue before the court was whether the plaintiff had standing to pursue the proceedings given that he was an undischarged bankrupt and the property interests were vested in the trustee. The court needed to ascertain if there was any basis for the plaintiff's claims to proceed and whether the cross claim by Shea could be validly pursued in light of the plaintiff's bankruptcy. The court considered the statutory framework governing bankruptcy and the implications of vesting property interests in a trustee.

The court concluded that there was no basis for Samootin to proceed with the proceedings as an undischarged bankrupt, and the interests in the property were vested in the trustee in bankruptcy. The court held that Samootin lacked the standing to bring the action and dismissed the proceedings accordingly. The cross claim filed by Shea was also dismissed due to the lack of standing of the plaintiff. The court determined that the legal framework did not permit Samootin to pursue the claims, and the proceedings were summarily disposed of.

No orders were made in favour of either party. The court dismissed both the plaintiff's claim and the defendant's cross claim, reflecting the legal incapacity of the plaintiff to proceed with the action.

Orders