Samootin v Wagner

[2006] FCA 945

FEDERAL COURT OF AUSTRALIA

Samootin v Wagner [2006] FCA 945

BANKRUPTCY – Appeal against decision of magistrate declining to dismiss or adjourn bankruptcy petition because of unresolved applications (including a special leave application) by judgment debtor – Whether magistrate’s decision was one open to him, as a matter of discretion.

Held – That decision was open – Appeal dismissed.

ALEXANDRA SAMOOTIN v GISELLE MONICA WAGNER  AND ADRIAN HOLMES
NSD 1046 OF 2006

WILCOX J
21 JULY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1046 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

ALEXANDRA SAMOOTIN
Appellant

AND:

GISELLE MONICA WAGNER
First Respondent

ADRIAN HOLMES
Second Respondent

JUDGE:	WILCOX J
DATE OF ORDER:	21 JULY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The 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.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1046 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

ALEXANDRA SAMOOTIN
Appellant

AND:

GISELLE MONICA WAGNER
First Respondent

ADRIAN HOLMES
Second Respondent

JUDGE:	WILCOX J
DATE:	21 JULY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an appeal against a sequestration order, made by Lloyd‑Jones FM on 24 May 2006, against the appellant, Alexandra Samootin. The Chief Justice of this Court directed, pursuant to section 25(1A) of the Federal Court of Australia Act 1976 (Cth), that the appeal be heard and determined by a single judge of the Court.

2. The act of bankruptcy relied upon by the respondents, Giselle Monica Wagner and Adrian Holmes, was the failure of the appellant to comply with a bankruptcy notice issued against her by them.  Both respondents are solicitors.  I gather they are successive proprietors of a legal practice known as ‘Northern Beaches Legal Service’.  Apparently, the first respondent, Ms Wagner, was involved in some conveyancing transactions, out of which litigation arose.  The second respondent, Mr Holmes, seems to have been brought into the case simply because he was the proprietor of Northern Beaches Legal Service at the time of commencement of the litigation.  As I understand it, he was not involved in any of the conveyancing transactions.

3. The appellant appeared in person, both before Lloyd-Jones FM and on the hearing of the appeal.  It seems she has appeared in person throughout prolonged litigation involving her former husband, Christopher George Shea, and other defendants.

4. The judgment debt out of which the bankruptcy proceeding arose was incurred in matter 1973/01, heard in the Equity Division of the Supreme Court of New South Wales by Palmer J.  On 1 August 2003, his Honour delivered a judgment which indicated there was no case against the current respondents.  His Honour later made formal orders dismissing, with costs, Ms Samootin’s suit against them. 

5. Ms Samootin, appealed against those orders, amongst others.  The appeal came before the New South Wales Court of Appeal,…