Samootin v Shea & Ors - [2005] NSWCA 16

NEW SOUTH WALES COURT OF APPEAL

CITATION: Samootin v Shea & Ors [2005] NSWCA 16

FILE NUMBER(S):
40603/04

HEARING DATE(S): 7 February 2005

JUDGMENT DATE: 17/02/2005

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

JUDGMENT OF: Giles JA

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): 1973/01

LOWER COURT JUDICIAL OFFICER: Palmer J

COUNSEL:
Claimant in person
B Muir - Second to Fourth Opponents
J Reid - Fifth and Sixth Opponents

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

CATCHWORDS:
Application for stays of "judgments" and costs orders - various proceedings - current application for leave to appeal in principal proceedings - a number of applications filed seeking special leave to appeal to High Court - leave to appeal relevantly refused at earlier time - no prospect of appeal - or of special leaves to appeal - application in large part misconceived and wholly without substance - dismissed with indemnity costs. ND

LEGISLATION CITED:

DECISION:
Amended notice of motion dismissed; Ms Samootin pay costs on an indemnity basis.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40603/04
ED 1973/01
GILES JA
Thursday 17 February 2005

SAMOOTIN v SHEA & ORS

Judgment

HIS HONOUR: Ms Alexandra Samootin was the plaintiff in proceedings 1973/01 in the Equity Division of the Supreme Court. The defendants in the proceedings were Mr Christopher Shea, Mr Peter Deans, Loan Design Pty Ltd (“Loan Design”), S R Deans Pty Ltd (“S R Deans”), Ms Giselle Wagner and Mr Adrian Holmes.
Palmer J held that there should be judgment for the defendants, but made a declaration as to the respective interests of Ms Samootin, Mr Shea and Loan Design in two properties the subject of the proceedings and orders for an inquiry and taking of accounts to quantify the interests and make a financial adjustment. He ordered that Ms Samootin pay the costs of the defendants other than Mr Shea, who appeared for himself.
Ms Samootin appealed purportedly as of right from the decision of Palmer J in proceedings 40641/03 in this Court. On 3 June 2004 the appeal was dismissed as incompetent, general leave to appeal was refused, but limited leave to appeal was granted so that the declarations and orders for an inquiry and taking of accounts could be reformulated.
Ms Samootin then applied for leave to appeal from the decision of Palmer J in the present proceedings 40603/04 in this Court. Her application has been listed for hearing on 15 May 2005.
By an amended notice of motion filed in proceedings 40603/04 Ms Samootin applied for the stay of a great many “judgments” and costs orders against her in proceedings 1971/03, in proceedings in the Court of Appeal including but…

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 [2005] NSWCA 16
Case: [2005] NSWCA 16
Decision Date: 17 February 2005

CaseChat Overview and Summary

Ms Samootin sought leave to appeal to the High Court against decisions made in various proceedings, including principal proceedings and associated costs orders. The applications for special leave to appeal were filed by Ms Samootin.

The primary legal issue before the court was whether there was any prospect of success for Ms Samootin's applications for special leave to appeal, given that leave to appeal had been refused at an earlier stage.

The court found that the applications for special leave to appeal were misconceived and wholly without substance, noting the prior refusal of leave to appeal. Consequently, the court dismissed the amended notice of motion. Ms Samootin was ordered to pay the costs of the proceedings on an indemnity basis.

Orders

Orders of the court

Amended notice of motion dismissed; Ms Samootin pay costs on an indemnity basis.

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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