Samootin v Shea & Ors - [2005] NSWCA 398

CITATION:
Samootin v Shea & Ors [2005] NSWCA 398

HEARING DATE(S):
On written submissions

JUDGMENT DATE:

17 November 2005

JUDGMENT OF:
Giles JA; Bryson JA

DECISION:
Notice of motion dismissed with costs.

CATCHWORDS:
Application for leave to appeal - reopening application - assertion of fresh evidence of fraud - evidence would have been available at first instance - would not have brought a different result - reopening refused.

PARTIES:
Alexandra Samootin - Claimant
Christopher George Shea - First Opponent
Peter John Deans - Second Opponent
Loan Design Pty Ltd - Third Opponent
S R Deans Pty Ltd - Fourth Opponent
Giselle M Wagner - Fifth Opponent
Adrian Holmes - Sixth Opponent

FILE NUMBER(S):
CA 40603/04

COUNSEL:
On written submissions

SOLICITORS:
Claimant - self represented
Brian Muir & Company - Second to Fourth Opponents
Mallesons Stephen Jaques - Fifth and Sixth Opponents

LOWER COURT JURISDICTION:
Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):
ED 1973/01

LOWER COURT JUDICIAL OFFICER:
Palmer J

CA 40603/04
ED 1973/01

GILES JA
BRYSON JA
Thursday 17 November 2005

Alexandra SAMOOTIN v Christopher George SHEA & Ors

Judgment

1 THE COURT: On 16 May 2005 we heard an application for leave to appeal against orders made by Palmer J on 28 June 2004. For reasons then given, we ordered that the summons for leave to appeal be dismissed with costs.

2 By an amended notice of motion filed on 10 October 2005, the original of which was filed on 14 September 2005, the claimant applied for leave -

“ … to re-open the case 40603/04 pursuant to Justice Bryson and Justice Giles judgment, 16.5.05, paragraph 26; and/or Supreme Court Procedure (NSW) Part 20, rule 20.1.7. Setting aside judgment for fraud, due to discovery of fresh evidence ”.

3 The application was supported by affidavits of the claimant sworn on 14 September 2005, 7 October 2005 (two affidavits) and 25 October 2005 (much of the affidavits being by way of submissions), an affidavit of Keith Lawrence Phillips sworn 6 October 2005, and other affidavits and materials as annexures to the claimant’s affidavits. The claimant filed written submissions on 14 September 2005, amended and further written submissions on 14 October 2005 and further written submissions on 25 October 2005. Filed in response to the application were affidavits of Christopher George Shea sworn 19 October 2005 and Judy Anne Reid sworn 24 October 2005 and submissions on behalf of the fifth and sixth opponents.

4 At a directions hearing on 10 October 2005 the Registrar stated that the notice of motion would be referred to the Court for consideration in chambers. We take the parties to have concurred in that course.

5 In the reasons of Bryson JA on 16 May 2005, with which Giles JA agreed, it was said in para [25] that the application for leave to appeal in substance, although not in form, renewed an earlier application for leave to appeal made before the Court of Appeal on 3 June 2004. The reasons included, in para…

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 & Ors

Details

AGLC: Samootin v Shea & Ors [2005] NSWCA 398
Case: [2005] NSWCA 398
Decision Date: 17 November 2005

CaseChat Overview and Summary

Samootin sought leave to appeal against a decision of the primary judge, arguing that fresh evidence of fraud had emerged. The respondents were Shea and others.

The central legal issue before the Court of Appeal was whether the court should reopen the proceedings to consider the alleged fresh evidence of fraud, and if so, whether leave to appeal should be granted.

The Court of Appeal, comprising Giles and Bryson JJA, considered the principles governing the reopening of proceedings and the admission of fresh evidence on appeal. Their Honours noted that the alleged fraud, if proven, would have been discoverable by the applicant at the time of the first instance proceedings. Furthermore, they concluded that even if the fresh evidence were admitted, it would not have brought about a different result at the original trial. Consequently, the court determined that the threshold for reopening the proceedings and admitting fresh evidence on appeal was not met.

The notice of motion was dismissed with costs.

Orders

Orders of the court

Notice of motion dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Samootin v Shea & Ors [2005] NSWCA 398
HEARING DATE(S):	On written submissions
JUDGMENT DATE:	17 November 2005
JUDGMENT OF:	Giles JA; Bryson JA
DECISION:	Notice of motion dismissed with costs.

CATCHWORDS:	Application for leave to appeal - reopening application - assertion of fresh evidence of fraud - evidence would have been available at first instance - would not have brought a different result - reopening refused.
PARTIES:	Alexandra Samootin - Claimant Christopher George Shea - First Opponent Peter John Deans - Second Opponent Loan Design Pty Ltd - Third Opponent S R Deans Pty Ltd - Fourth Opponent Giselle M Wagner - Fifth Opponent Adrian Holmes - Sixth Opponent
FILE NUMBER(S):	CA 40603/04
COUNSEL:	On written submissions
SOLICITORS:	Claimant - self represented Brian Muir & Company - Second to Fourth Opponents Mallesons Stephen Jaques - Fifth and Sixth Opponents

LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	ED 1973/01
LOWER COURT JUDICIAL OFFICER:	Palmer J