Samootin v Wagner & Anor - [2005] FMCA 1512

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SAMOOTIN v WAGNER & ANOR

[2005] FMCA 1512

BANKRUPTCY – Application to set aside bankruptcy notice and/or extend time for compliance – pending appeal hopeless or without merit.

Bankruptcy Act 1966, ss.30, 41(6A), 41(6C)

Samootin v Shea & Ors (No.2) [2003] NSWSC 695
Goldberg v Morrow [2005] FCA 103
Re: Riggs Ex parte Riggs v Deputy Commissioner of Taxation WA (1986)
12 FCR 310
Jenkins v National Australia Bank Ltd [1999] FCA 1758

Applicant:

ALEXANDRA SAMOOTIN

Respondents:

GISELLE M WAGNER & ADRIAN HOLMES

File Number:

SYG 2039 of 2005

Judgment of:

McInnis FM

Hearing date:

30 September 2005

Delivered at:

Sydney

Delivered on:

30 September 2005

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Mr J Stoljar

Solicitors for the Respondents:

Mallesons

ORDERS

The application filed 2 August 2005 be dismissed.
The applicant shall pay the respondents’ costs of and incidental to the application including reserved costs, if any, upon an indemnity basis with costs to be taxed in default of agreement pursuant to order 62 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2039 of 2005

ALEXANDRA SAMOOTIN

Applicant

And

GISELLE M WAGNER & ADRIAN HOLMES

Respondents

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application by Alexandra Samootin, the applicant, seeking to set aside a bankruptcy notice. The application, filed on 2 August 2005, seeks to set aside a bankruptcy notice. The grounds relied upon, though not clearly specified in the application itself, appear to relate primarily to the applicant's desire to either delay or set aside the bankruptcy notice, that is to either delay the effect of the bankruptcy notice or set it aside. Delay, for these purposes, includes extending the time for compliance with the bankruptcy notice under s.41(6A) of the Bankruptcy Act 1966 (the Act).
Further, it should be noted that the applicant, who is unrepresented, had otherwise sought in the alternative to adjourn this application. Both the adjournment of the application and the application to set aside and/or extend the time for compliance with the bankruptcy notice, relates specifically to pending proceedings which have been filed by the applicant in the Court of Appeal in the Supreme Court of New South Wales.
Those pending proceedings are in an application number 40603 of 2004 filed on 14 September 2005 which I understand has its first hearing date scheduled for 10 October 2005 at 9.45 am. That application in the Court of Appeal of the Supreme Court of New South Wales seeks to re-open a case and set aside a judgment of Palmer J dated 1 August 2003 in Samootin v Shea & Ors No.2 [2003] NSWSC 695 (the Palmer decision). The application to reopen that case relies upon a claim of fraud and/or what is claimed to be the discovery of fresh evidence. The bankruptcy notice, which is the subject of this application, was issued on 17 June 2005. It claims that the applicant debtor owes Ms Giselle Wagner and Mr Adrian Holmes,…

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 & Anor

Details

AGLC: Samootin v Wagner & Anor [2005] FMCA 1512
Case: [2005] FMCA 1512
Decision Date: 30 September 2005

CaseChat Overview and Summary

Samootin brought an application against Wagner and another respondent, seeking relief in the Federal Court. The application was filed on 2 August 2005 and sought certain unspecified relief. The respondents opposed the application on the grounds of its lack of merit and the inappropriateness of the relief sought.

The primary legal issue before the court was the merits and appropriateness of the applicant's relief. The court had to determine whether the application had any valid basis and if the applicant was entitled to the sought relief. The respondents argued that the application was frivolous and vexatious, and as such, should be dismissed with costs awarded against the applicant.

The court found that the application lacked merit and was not appropriate for relief. The court held that the application was frivolous and vexatious, and thus dismissed it. The court further ordered that the applicant pay the respondents' costs of and incidental to the application, including reserved costs, on an indemnity basis. The costs were to be taxed in default of agreement pursuant to order 62 of the Federal Court Rules.

Orders

Orders of the court

The application filed 2 August 2005 be dismissed.

The applicant shall pay the respondents’ costs of and incidental to the application including reserved costs, if any, upon an indemnity basis with costs to be taxed in default of agreement pursuant to order 62 of the Federal Court Rules.

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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