Samootin v Shea
[2007] NSWSC 785
•6 July 2007
CITATION: Samootin v Shea [2007] NSWSC 785 HEARING DATE(S): 6 July 2007
JUDGMENT DATE :
6 July 2007JURISDICTION: 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 9.1CASES 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 in and any of her rights relating to the properties are undoubtedly vested in her trustee in bankruptcy, who is not in any way pursuing this cross claim.
6 They also draw attention to the fact that the various doctrines relating to the finality of litigation, by way of res judicata, issue estoppel and Anshun estoppel, would prevent the reagitation of the matters adverted to in the statement of cross claim, those matters having already been dealt with by orders of the Court on other occasions.
7 In reality, I need decide the case on only one basis. The facts that the cross claimant was an undischarged bankrupt at the commencement of the second cross claim and that the cross claim involved property and rights vested in her trustee in bankruptcy, who does not join or participate in any way in the pursuit of the cross claim, are sufficient in themselves to be fatal to the continued maintenance of the cross claim.
8 I do not think one needs to come to the question of whether or not leave was necessary for the filing of the cross claim. However, I make the following remarks concerning that matter.
9 Whilst Ms Samootin could not bring the cross claim if her only role in the proceedings were that of plaintiff in the original claim, it may be that she could bring a cross claim within the purview of s 22 of the Civil Procedure Act 2005 as a defendant, since she is the cross defendant to the first cross claim, which I have mentioned. However, in that case r 9.1 of the Uniform Civil Procedure Rules 2005 would clearly apply.
10 The plaintiff could make a cross claim without leave if it were filed within the time limited for her to file a defence in her role as cross defendant to the first cross claim. As that first cross claim dates back to July 2003, the time for defence to that cross claim by Ms Samootin as cross defendant is long since past. I am unable to perceive, nor is my attention drawn to, any extension of time for the filing of that defence and it seems clear that there was no explicit leave for her to file the statement of cross claim commencing the second cross claim at a time outside the time specified by r 9.1.
11 That would probably constitute a second ground on which the cross claim could be dismissed, although, of course, in appropriate circumstances an order could be made nunc pro tunc giving leave to file the cross claim. Any necessity to consider whether that ought be done is removed by the fact that the second cross claim has been commenced during Ms Samootin’s bankruptcy.
12 It may be, as well, that the principles I have adverted to as to the finality of litigation would also prevent the agitation of the second cross claim. However, I have not considered whether that is so clearly so that it would lead to summary dismissal of the second cross claim, rather than becoming an issue in the proceedings upon the cross claim to be adjudicated upon at trial.
13 The result of the matters which I have discussed is that, upon the basis alone of the cross claimant’s subsisting bankruptcy, the proceedings on the second cross claim must be terminated. The cross claimant must pay the cross defendants’ costs of the cross claim. Since it was commenced by her whilst bankrupt it was absolutely hopeless and without prospect of success.
14 (1) I order that the statement of cross claim be struck out and that the second cross claim be summarily dismissed.
(2) I order Alexandra Samootin as cross claimant in the second cross claim to pay the costs of that cross claim of the cross defendants to that cross claim on the indemnity basis.
(3) In relation to the first cross claim I order that the cross defendant may serve any affidavits on which she intends to rely in answer to the first cross claim by 5pm on 9 July 2007.
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