Samootin v Shea (No 2) - [2003] NSWSC 695

CITATION: Samootin v Shea and Ors (No 2) [2003] NSWSC 695

HEARING DATE(S): 14 to 18, and 21 & 22 July, 2003

JUDGMENT DATE:
1 August 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Palmer J

DECISION: Judgment for the Defendants on the Plaintiff's claims; Cross Claimants entitled to declarations and an enquiry.

CATCHWORDS: RESULTING TRUST - Plaintiff claimed that her share of the proceeds of sale of the jointly owned property had been used in the purchase of other properties in the name of one of the Defendants alone, without her knowledge and consent. HELD: The Plaintiff had understood and agreed to the transactions - the other parties had never disputed the Plaintiff's entitlement to an interest in the properties - the Plaintiff was not entitled to the further relief which she claimed. SOLICITORS - NEGLIGENCE - FIDUCIARY DUTY - The Plaintiff claimed that the solicitor acting on the sale of the jointly owned property had applied the Plaintiff's share of the proceeds of sale to the purchase of other properties in the name of one of the Defendants alone, contrary to instructions, negligently and in breach of fiduciary duty. HELD: In carrying out the transactions, the solicitor had acted in accordance with the Plaintiff's express instructions.

LEGISLATION CITED: - Supreme Court Act 1970 (NSW) - s.84(2)
- Trade Practices Act 1974 (Cth) - s.51AA, s.51AC, s.52, s.82(1), s.82(2)
- Trade Practices Amendment Act (No 1) 2001 (Cth) - Schedule 1, Item 21

PARTIES :
Alexandra Samootin - Plaintiff
Christopher George Shea - First Defendant
Peter John Deans - Second Defendant
Loan Design Pty Limited - Third Defendant
S.R. Deans Pty Limited - Fourth Defendant
Giselle M. Wagner t/a Northern Beaches Legal Service - Fifth Defendant
Adrian Philip Holmes - Sixth Defendant

FILE NUMBER(S): SC 1973/01

COUNSEL: In person - Plaintiff
In person - First Defendant
M. Tzannes - Second to Fourth Defendants
G. Curtin - Fifth and Sixth Defendants

SOLICITORS: In person - Plaintiff
In person - First Defendant
Brian Muir & Co - Second to Fourth Defendants
Mallesons Stephen Jaques - Fifth and Sixth Defendants

Introduction
1 This is a tragic case for all who have been involved in it. The Plaintiff, Ms Samootin, has developed a fixation that she has been a victim of a fraudulent conspiracy between her ex-husband, the First Defendant (“Mr Shea”), and the Second Defendant (“Mr Deans”) whereby she has been cheated out of her home. She has commenced proceedings in the Family Court, in this Court and in the Federal Court, all of which she has conducted herself without legal assistance. 2 The reality is that, while Ms Samootin’s share of the net proceeds of sale of her jointly owned former matrimonial property was invested in the properties the subject of these proceedings and her name did not appear on the title to those properties, Mr Shea and Mr Deans have never denied that Ms Samootin had a beneficial interest in the properties commensurate with the proportion of her contribution to the parties’…

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 (No 2)

Details

AGLC: Samootin v Shea (No 2) [2003] NSWSC 695
Case: [2003] NSWSC 695
Decision Date: 1 August 2003

CaseChat Overview and Summary

The case of Samootin v Shea (No 2) was heard in the Supreme Court of Victoria. The Plaintiff, Samootin, sought to assert a resulting trust over certain properties, alleging that her share of the proceeds from the sale of a jointly owned property had been used without her knowledge or consent to purchase other properties in the name of one of the Defendants, Shea. She also claimed that the solicitor who handled the sale of the jointly owned property had negligently applied her share of the proceeds to the purchase of properties in the name of one of the Defendants alone, contrary to her instructions and in breach of fiduciary duty.

The court was required to determine whether Samootin had a resulting trust over the properties in question and whether the solicitor had negligently acted in breach of fiduciary duty. The court examined the Plaintiff's understanding and agreement to the transactions, the Defendants' acknowledgment of the Plaintiff's interest in the properties, and the solicitor's adherence to the Plaintiff's instructions. The Defendants argued that the Plaintiff had understood and agreed to the transactions and that they had never disputed her entitlement to an interest in the properties.

In its judgment, the court found that Samootin had understood and agreed to the transactions and that the Defendants had never disputed her entitlement to an interest in the properties. The court held that Samootin was not entitled to the further relief which she claimed. Regarding the solicitor, the court determined that he had acted in accordance with the Plaintiff's express instructions and, therefore, had not acted negligently or breached any fiduciary duty. The court found that the Plaintiff's claims against both the Defendants and the solicitor were without merit.

The court ordered that Samootin's claims against the Defendants and the solicitor be dismissed, with each party to bear their own costs of the proceeding. The court did not award any costs against the Plaintiff.

Orders