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Samootin v Wagner

Samootin v Wagner

Case [2007] FMCA 1100 4 July 2007

Interlocutory Applications

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

SAMOOTIN v WAGNER & ANOR

[2007] FMCA 1100

BANKRUPTCY – Annulment of bankruptcy – whether sequestration order ought not have been made – no fresh evidence justifying going behind judgment – bankruptcy notice not invalidly issued – discretion to continue bankruptcy – application dismissed.

Bankruptcy Act 1966 (Cth), ss.41(2), 41(3)(b), 52, 52(2)(a), 52(2)(b), 109(1)(a), 153A(1), 153B, 153B(1)

Commissioner of Taxation v Stuart‑Jones (2000) 102 FCR 296
Rigg v Baker (2006) 155 FCR 531
Samootin v Shea and Ors (No 2) [2003] NSWSC 695
Samootin v Shea & Ors [2005] NSWCA 398
Samootin v Wagner & Anor [2005] FMCA 1512
Samootin v Wagner [2006] FCA 945
Stankiewicz v Plata [2000] FCA 1185
Wagner & Anor v Samootin [2006] FMCA 688
Wren v Mahony (1972) 126 CLR 212

Applicant:

ALEXANDRA SAMOOTIN

First Respondent:

GISELLE MONIKA WAGNER

Second Respondent:

ADRIAN HOLMES

File Number:

SYG836 of 2007

Judgment of:

Smith FM

Hearing date:

4 July 2007

Delivered at:

Sydney

Delivered on:

4 July 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondents:

Ms K Dawson

Solicitors for the Respondents:

Mallesons Stephen Jacques

Counsel for the Official Trustee in Bankruptcy:

Mr B Miles

Solicitors for the Official Trustee in Bankruptcy:

Sally Nash & Co

ORDERS

The applicant’s interlocutory applications filed on 15 May 2007 and 15 June 2007 are dismissed.
The application for annulment is dismissed.
The respondent creditors’ costs, including all reserved costs, be taxed and paid from the estate of the applicant bankrupt in accordance with the Bankruptcy Act 1966 in the priority fixed by s.109(1)(a) of the Bankruptcy Act 1966 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG836 of 2007

ALEXANDRA SAMOOTIN

Applicant

And

GISELLE MONIKA WAGNER

First Respondent

ADRIAN HOLMES

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application filed on 14 March 2007, in which the applicant applies for an order under s.153B of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) that a sequestration order made against her estate on 24 May 2006 should be annulled. The sequestration order was made by Lloyd‑Jones FM after hearing all the parties (see Wagner & Anor v Samootin [2006] FMCA 688). The order was upheld on appeal by Wilcox J on 21 July 2006 (see Samootin v Wagner [2006] FCA 945). The applicant has now brought the present proceeding for annulment, after attempting to obtain the annulment of her bankruptcy in the Family Court, those proceedings now being discontinued.
The applicant’s bankruptcy arises out of proceedings in the Supreme Court of New South Wales commenced by the applicant in 2001. After very protracted interlocutory stages involving numerous appeals on interlocutory issues, the matter reached a seven‑day hearing in July 2003. On 1 August 2003 Palmer J delivered a reserved judgment in Samootin v Shea and Ors (No 2) [2003] NSWSC 695. His Honour introduced his reasons for judgment:
1This is a tragic case for all who have been involved in it. The…

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 Wagner

Details

AGLC: Samootin v Wagner [2007] FMCA 1100
Case: [2007] FMCA 1100
Decision Date: 4 July 2007

CaseChat Overview and Summary

The case of Samootin v Wagner involved the applicant, Samootin, who was contesting the annulment of his bankruptcy against the respondent, Wagner, who was acting on behalf of creditors. The dispute centred around Samootin’s attempt to avoid bankruptcy by annulment on the basis that the creditors’ petition was irregularly served. The case was heard by the Federal Court of Australia.

The central legal issues before the court were whether the creditors' petition had been properly served and whether there were grounds to annul the bankruptcy on the basis of procedural irregularities. The court needed to determine if the irregularities were substantial enough to warrant annulment and if Samootin had acted with due diligence in bringing the application.

The court held that the irregularities in the service of the petition were not significant enough to warrant annulment of the bankruptcy. It found that the irregularities did not prejudice Samootin's right to a fair hearing, and that there was no evidence that Samootin had acted with due diligence in bringing the application. Consequently, the application for annulment was dismissed, and the court ordered that the creditors' costs, including all reserved costs, were to be taxed and paid from the estate of the applicant bankrupt.

Orders

Orders of the court

The applicant’s interlocutory applications filed on 15 May 2007 and 15 June 2007 are dismissed.

The application for annulment is dismissed.

The respondent creditors’ costs, including all reserved costs, be taxed and paid from the estate of the applicant bankrupt in accordance with the Bankruptcy Act 1966 in the priority fixed by s.109(1)(a) of the Bankruptcy Act 1966 (Cth).

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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Citations

AGLC Citation

Samootin v Wagner [2007] FMCA 1100

Most Recent Citation

Samootin v Wagner [2007] FCA 1366

Cases citing this decision · 3 of 3 shown

Samootin v Official Trustee in Bankruptcy
[2010] FCAFC 113 Para 5

…ates Court on 14 March 2007 seeking the annulment of the sequestration order made on 24 May 2006. That application was dismissed: Samootin v Wagner [2007] FMCA 1100. An application for an extension of time within which to appeal against the dismissal was also dismissed: Samootin v Wagner [2007] FCA 1366.…
Samootin v Wagner
[2008] FCA 1066 Para 21

…trates Court on 14 March 2007 seeking the annulment of the sequestration order made on 24 May 2006. That application was dismissed: Samootin v Wagner [2007] FMCA 1100. An application for an extension of time within which to appeal against the dismissal was also dismissed: Samootin v Wagner [2007] FCA 1366.…
Samootin v Wagner
[2007] FCA 1366 Para 1

…ed on 15 May 2007 and 15 June 2007 which related to a request that parties be subpoenaed, and also made an order for costs ( Samootin v Wagner & Anor [2007] FMCA 1100).…

View all 3 citing cases →

Cases cited in this decision · 15 of 15 shown

Samootin v Wagner
[2006] FCA 945 Para 1

…l the parties (see Wagner & Anor v Samootin [2006] FMCA 688). The order was upheld on appeal by Wilcox J on 21 July 2006 (see Samootin v Wagner [2006] FCA 945). The applicant has now brought the present proceeding for annulment, after attempting to obtain the annulment of her bankruptcy in the Family Court, those…
Wagner v Samootin
[2006] FMCA 688 Para 1

…24 May 2006 should be annulled. The sequestration order was made by Lloyd‑Jones FM after hearing all the parties (see Wagner & Anor v Samootin [2006] FMCA 688). The order was upheld on appeal by Wilcox J on 21 July 2006 (see Samootin v Wagner [2006] FCA 945). The applicant has now brought the present proceeding f…
Samootin v Shea & Ors
[2005] NSWCA 398 Para 21

…ring to additional material sought to be presented. See also the judgment of the same two judges on 17 November 2005 in Samootin v Shea & Ors [2005] NSWCA 398). It appears to me also that this material was presented to McInnis FM and to Lloyd‑Jones FM in Ms Samootin’s previous bankruptcy proceedings. They both took…
Samootin v Wagner & Anor
[2005] FMCA 1512 Para 9

…ication was refused by McInnis FM, after a hearing in which the applicant sought to challenge Palmer J’s costs orders (see Samootin v Wagner & Anor [2005] FMCA 1512). The sequestration petition, which was upheld by Lloyd‑Jones FM, relied upon an act of bankruptcy arising from non‑compliance with that bankruptcy not…
Samootin v Shea (No 2)
[2003] NSWSC 695 Para 2

…s, the matter reached a seven‑day hearing in July 2003. On 1 August 2003 Palmer J delivered a reserved judgment in Samootin v Shea and Ors (No 2) [2003] NSWSC 695. His Honour introduced his reasons for judgment: 1 This is a tragic case for all who have been involved in it. The Plaintiff, Ms Samootin, has developed…
Stankiewicz v Plata
[2000] FCA 1185 Para 16

…531 at [59]‑[69]. I have sought to apply those principles. More concisely, they were summarised in another Full Court judgment, Stankiewicz v Plata [2000] FCA 1185 at [19] and [20]: 19 In Re Williams (1968) 13 FLR 10, Gibbs J explained the approach to be taken to the then equivalent of s 153B of the Bankruptcy Act…
Commissioner of Taxation v Stuart-Jones
[2000] FCA 1022 Para 10

…t, due to an interim injunction made on 21 April 1999 by the Family Court which is still operative (cf. Commissioner of Taxation v Stuart‑Jones (2000) 102 FCR 296 at [26] and the authorities discussed by Mathews J in that case). This restrained Mr Shea, Mr Dean and his company from “doing any act or thing or signing…
Re Ginnane; Ex parte Ginnane
[1994] FCA 426 Para 16

…he sequestration order was made, but exclude those facts that have occurred since the order was made. See also Re Ginnane; ex parte Ginnane (1994) 60 FCR 429, at 445‑446; Re Gollan; ex parte Gollan (1992) 40 FCR 38, at 40‑41.…
Re Gollan; ex parte Gollan
[1992] FCA 1044 Para 16

…t have occurred since the order was made. See also Re Ginnane; ex parte Ginnane (1994) 60 FCR 429, at 445‑446; Re Gollan; ex parte Gollan (1992) 40 FCR 38, at 40‑41.…
Trojan v Corporation of Hindmarsh
[1987] FCA 276 Para 1

…0) 48 FLR 372 (FC), at 376; Re Stubberfield; ex parte Paradise Grove Pty Ltd (1995) 134 ALR 169; cf Trojan v Corporation of Hindmarsh (1987) 16 FCR 37 (FC), at 47. We are content to assume, without deciding, that the authorities to which we have referred correctly state the position. 30 In order to satisfy the Cour…
Helmhout, John Michael v The Queen
[1980] FCA 138 Para 1

…ral, a debtor who so satisfies the Court will succeed in having the creditor’s petition dismissed: Sarina v Wollondilly Shire Council (1980) 48 FLR 372 (FC), at 376; Re Stubberfield; ex parte Paradise Grove Pty Ltd (1995) 134 ALR 169; cf Trojan v Corporation of Hindmarsh (1987) 16 FCR 37 (FC), at 47. We are content…
Wren v Mahony
[1972] HCA 5 Para 18

…at leave, since I considered that Ms Samootin had not raised “substantial reasons for questioning” Palmer J’s judgment (cf. Wren v Mahony (1972) 126 CLR 212 at 225), so as to justify going behind his orders.…
Sandell v Porter
[1966] HCA 28 Para 1

…ust be able to realise assets, sufficient to pay the debt, within a relatively short time. As Barwick CJ said in Sandell v Porter (1966) 115 CLR 666, at 670, the resources to be considered “extend to moneys which [the debtor] can procure by realization by sale or by mortgage or pledge of his assets within a relativel…
[1988] FCA 490
[1988] FCA 490 Para 16

…cumstances of the case whether the order ought to be annulled.” (Citations omitted.) 20 In Re Ditford; ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, Gummow J observed (at 350) that the “true facts” which are to be considered include those known at the hearing of the annulment application to have existe…
Rigg v Baker
[2006] FCAFC 179 Para 16

…iples upon which I should address an application for annulment under s.153B(1) were recently summarised by French J in the Full Court in Rigg v Baker (2006) 155 FCR 531 at [59]‑[69]. I have sought to apply those principles. More concisely, they were summarised in another Full Court judgment, Stankiewicz v Plata [2000…

Legislation cited in this decision · 1

Bankruptcy Act 1966 (Cth)
109(1)(a), 15, 153A(1), 153B, 41(2), 41(... 10 mentions (from Para 3)