Samootin v Wagner

[2009] FCAFC 77

FEDERAL COURT OF AUSTRALIA

Samootin v Wagner [2009] FCAFC 77

BANKRUPTCY – appeal from dismissal of application to annul bankruptcy pursuant to s 153B Bankruptcy Act 1966 (Cth) – whether sequestration order ought not to have been made – whether any relevant change of circumstances to warrant annulment.

HELD: Appeal dismissed.

Bankruptcy Act 1966 (Cth) 153B
Uniform Civil Procedure Rules 2005 (NSW) regs 36.1A, 36.10(1)

Re Frank; Ex parte Piliszky (1987) 16 FCR 396 considered
Boles v Official Trustee in Bankruptcy (2001) 183 ALR 239 considered

ALEXANDRA SAMOOTIN v GISELLE MONIKA WAGNER, ADRIAN HOLMES and OFFICIAL TRUSTEE IN BANKRUPTCY

NSD 1172 of 2008

EDMONDS, MCKERRACHER AND BARKER JJ
26 JUNE 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1172 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: ALEXANDRA SAMOOTIN
Appellant

AND:

GISELLE MONIKA WAGNER
First respondent

ADRIAN HOLMES
Second respondent

OFFICIAL TRUSTEE IN BANKRUPTCY
Third respondent

JUDGES:	EDMONDS, MCKERRACHER AND BARKER JJ
DATE OF ORDER:	26 JUNE 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The amended notice of appeal be dismissed

2.The appellant pay the respondents’ costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1172 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: ALEXANDRA SAMOOTIN
Appellant

AND:

GISELLE MONIKA WAGNER
First respondent

ADRIAN HOLMES
Second respondent

OFFICIAL TRUSTEE IN BANKRUPTCY
Third respondent

JUDGES:	EDMONDS, MCKERRACHER AND BARKER JJ
DATE:	26 JUNE 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1. This is an appeal from a judge of this Court dismissing the appellant’s application for an annulment of bankruptcy (Samootin v Wagner [2008] FCA 1066).

2. The first and second respondents, Ms Wagner and Mr Holmes, are the successive proprietors of a legal practice known as ‘Northern Beaches Legal Service’.  Ms Wagner was involved in conveyancing transactions out of which the underlying litigation, which indirectly gave rise to these proceedings, arose.  Mr Holmes was the proprietor of that practice at the time of the commencement of that litigation.  The third respondent is the Official Trustee in Bankruptcy.

   FACTUAL BACKGROUND

3. The factual background of this proceeding, in particular the multitude of proceedings in various courts that have been commenced by the appellant, are set out at some length in the reasoning of the primary judge. For present purposes, it suffices to recite the salient aspects.

4. The appellant commenced proceedings in the Supreme Court of New South Wales against her ex-husband, Mr Shea, a Mr Deans and Shea Dealite Pty Ltd in March 2001 (‘Supreme Court Proceeding 1973/2001’).  The first respondent was joined as the fifth defendant to those proceedings on 21 November 2001 and the second respondent was joined as the sixth defendant to those proceedings pursuant to leave granted by Palmer J…