Samootin v Shea & Ors

[2006] HCATrans 512

[2006] HCATrans 512

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S428 of 2004

B e t w e e n -

ALEXANDRA SAMOOTIN

Applicant

and

ST GEORGE BANK LIMITED

Respondent

Office of the Registry
  Sydney  No S429 of 2004

B e t w e e n -

ALEXANDRA SAMOOTIN

Applicant

and

PETER JOHN DEANS

Respondent

Office of the Registry
  Sydney  No S430 of 2004

B e t w e e n -

ALEXANDRA SAMOOTIN

Applicant

and

CHRISTOPHER GEORGE SHEA

First Respondent

PETER JOHN DEANS

Second Respondent

LOAN DESIGN PTY LTD

Third Respondent

S R DEANS PTY LTD

Fourth Respondent

MS GISELLE M. WAGNER

Fifth Respondent

ADRIAN HOLMES

Sixth Respondent

Office of the Registry
  Sydney  No S280 of 2005

B e t w e e n -

ALEXANDRA SAMOOTIN

Applicant

and

CHRISTOPHER GEORGE SHEA

First Respondent

PETER JOHN DEANS

Second Respondent

LOAN DESIGN PTY LTD

Third Respondent

S R DEANS PTY LTD

Fourth Respondent

GISELLE MONICA WAGNER

Fifth Respondent

ADRIAN HOLMES

Sixth Respondent

Applications for special leave to appeal

Publication of reasons and pronouncement of orders

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 SEPTEMBER 2006, AT 9.15 AM

Copyright in the High Court of Australia

HAYNE J:   On 25 November 2005, Gummow J directed that these four applications for special leave to appeal proceed together for determination by the same panel of Justices.

In 1997 the applicant received a cheque representing the settlement proceeds from the sale of a house she owned jointly with Mr Shea.  She paid that cheque into a bank account of Mr Shea.  She claims that she and Mr Shea agreed to apply the money in the purchase of another house in their joint names but that the house and an adjoining property were bought in the name of a company controlled by Mr Deans.  Advance Bank Australia Ltd (now St George Bank Ltd) lent money used to buy these properties and took a mortgage over the two pieces of land and a third property in the same street owned by Mr Deans or interests associated with him.

For the most part, the present applications concern interlocutory and procedural orders having, at best, an indirect connection with the applicant’s claim to an interest in or in relation to the two pieces of land bought in the name of Mr Dean’s company.  That claim was tried in the Supreme Court of New South Wales by Palmer J.  It is convenient to refer to these proceedings as “the principal proceedings”.  Reasons for judgment in the principal proceedings were published in August 2003 and orders made in September 2003 and, as later varied, in June 2004, declared that the land was held on trust for the present applicant, and others, according to the equity each contributed.  An inquiry was ordered as to the extent of each party’s interest.

Application S428 of 2004 was instituted well out of time.  It relates to orders of the Court of Appeal refusing leave to appeal against orders dismissing a fresh proceeding instituted by the applicant, in addition to the principal proceedings, seeking not only to agitate the same issues as those arising in the principal proceedings, but also to do so with St George Bank Ltd as a party.

Application S429 of 2004 is again made well out of time.  It arises out of proceedings taken by the applicant in the Local Court of New South Wales which led to the making of an interim apprehended violence order against Mr Deans.  On Mr Dean’s appeal to the District Court that order was set aside.  The application to this Court is for special leave to appeal against orders of the Court of Appeal made as long ago as November 2001, dismissing the present applicant’s claim for prerogative relief directed to the District Court.

Application S430 of 2004 concerns various interlocutory and procedural orders made in the principal proceedings at first instance or in connection with the applicant’s attempts to appeal against the orders made at first instance.  The orders which it is sought to challenge include (but are not limited to) orders dealing with leave to issue subpoenas, the grant or refusal of stays as to costs but also include the orders of the Court of Appeal disposing of her appeal as incompetent without leave.  (Leave was granted and the appeal allowed as to parts of the orders made at first instance and those aspects of the matter were remitted to the primary judge.)

Application S280 of 2005 relates to the refusal by the Court of Appeal to grant the applicant leave to appeal against orders made in the primary proceedings (as amended following the remitter by the Court of Appeal). This application proceeds by way of written case under r 41.10 of the High Court Rules 2004.

There is no reason to doubt the conclusion of the Court of Appeal that an appeal against the orders made by the primary judge (as ultimately amended) enjoyed no prospect of success.  That being so, it is not in the interests of justice generally or in this particular case that leave be granted to consider the correctness of any of the other orders made in connection with the principal proceedings and which the applicant would seek to challenge.

Nor is it in the interests of justice either generally or in this case to grant the applicant any extension of time, as required, including the considerable extension of time she would need to regularise her application in Matter No S429 of 2004.  In any event, it raises no question suitable to a grant of special leave.

In each of the applications S428 of 2004, S429 of 2004 and S430 of 2004, pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal an order that the application is dismissed with costs. In application S280 of 2005, pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order that the application is dismissed. I publish that disposition.

AT 9.21 AM THE MATTERS WERE CONCLUDED