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Wagner v Samootin

Wagner v Samootin

Case [2006] FMCA 688 24 May 2006

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAGNER & ANOR v SAMOOTIN

[2006] FMCA 688

BANKRUPTCY – Application by respondent debtor to transfer proceedings to the Family Court and/or extend time for compliance pending appeal – respondent’s intention to oppose creditor’s petition – respondent’s application for adjournment of creditor’s petition – all applications dismissed.

Bankruptcy Act 1966 (Cth), ss.3, 35A
Commonwealth of Australia Constitution Act, s.51
Family Law Act 1975 (Cth), ss.44, 79, 90AC
Judiciary Act 1903 (Cth), s.78B
Supreme Court Act1970 (NSW)

Supreme Court Rules 1970 (NSW), r.4

Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137
Aveyratn v Trkulja (1998) 90 FCR 253
Knudsen & Yates trading as The Hargreaves Practice, in the matter of Sanders v Sanders [2003] FCA 1079
Re Boscolo: Ex parte Botany Council (1996) 136 ALR 623
Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73
Re Sabri; Ex parte Sabri v Brien (1995) 60 FCR 131
Samootin v Shea & Ors [2005] HCATrans 732
Samootin v Shea & Ors [2005] HCATrans 181
Samootin v Shea & Ors [2005] NSWCA 398
Samootin v Shea & Ors (No.2) [2003] NSWSC 695
Samootin v Wagner & Anor [2005] FMCA 1512
Sandell v Porter (1966) 115 CLR 666
Stankiewicz v Plata [2000] FCA 1185
Westpac Banking Corporation v Carver, in the matter of Carver [2003] FCA 221

First Applicant:

GISELLE MONIKA WAGNER

Second Applicant:

ADRIAN HOLMES

Respondent:

ALEXANDRA SAMOOTIN

File number:

SYG3197 of 2005

Judgment of:

Lloyd-Jones FM

Hearing date:

27 April 2006

Delivered at:

Sydney

Delivered on:

24 May 2006

REPRESENTATION

Counsel for the Applicants:

Mr J Stoljar

Solicitor for the Applicants:

Mallesons Stephen Jacques

Advocate for the Respondent:

Applicant appears in person

ORDERS

The application filed 23 December 2005 to transfer the bankruptcy proceedings to the Family Court of Australia is dismissed.
The respondent’s notice of a constitutional matter filed 23 December 2005 does not raise any genuine issue under the Constitution or as to its interpretation.
The notice of intention to oppose petition filed 23 December 2005 is dismissed.
The respondent’s application for an adjournment of the creditor’s petition is refused.
The respondent shall pay the applicants’ costs, of and incidental to the application including reserved costs, if any, with costs to be taxed in default of agreement pursuant to order 62 of the Federal Court Rules (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3197 of 2005

GISELLE MONIKA WAGNER

First Applicant

ADRIAN HOLMES

Second Applicant

And

ALEXANDRA SAMOOTIN

Respondent

REASONS FOR JUDGMENT

The proceedings

The matters before this Court for determination are:
a)The respondent debtor’s application to transfer the bankruptcy proceedings to the Family Court of Australia, filed 23 December 2005;
b)
The respondent debtor’s notice of a constitutional matter, filed

23 December 2005;
c)The respondent debtor’s notice of intention to oppose petition filed, 23 December 2005; and
d)The creditor’s petition filed 2 November 2005.
The respondent debtor, Ms Samootin, relies upon the following material in support of her application to transfer the bankruptcy proceedings to the Family Court:
a)Application filed…

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 Wagner v Samootin

Details

AGLC: Wagner v Samootin [2006] FMCA 688
Case: [2006] FMCA 688
Decision Date: 24 May 2006

CaseChat Overview and Summary

The matter in question involved Wagner, the applicant, and Samootin, the respondent, with the proceedings pertaining to a bankruptcy petition. The case was heard in the Federal Court of Australia. Wagner filed an application to transfer the bankruptcy proceedings to the Family Court of Australia, which Samootin opposed. Additionally, Samootin raised a constitutional matter and filed a notice of intention to oppose the petition. The court was tasked with determining whether the bankruptcy proceedings should be transferred to the Family Court of Australia, whether the constitutional matter raised any genuine issues, and whether the notice of intention to oppose the petition was valid.

The court found that the application to transfer the bankruptcy proceedings was not appropriate, as there were no grounds to suggest that the Family Court of Australia would be better suited to handle the matter. The constitutional matter raised by Samootin was also dismissed, as it did not present any genuine issues under the Constitution. Furthermore, the notice of intention to oppose the petition was deemed invalid, as it did not meet the legal requirements. Consequently, the application for an adjournment of the creditor's petition was refused.

The court's decision resulted in the dismissal of the application to transfer the bankruptcy proceedings to the Family Court of Australia, the rejection of the constitutional matter, the invalidation of the notice of intention to oppose the petition, and the refusal of the application for an adjournment. Additionally, the court ordered that the respondent, Samootin, would be responsible for paying the applicants' costs, of and incidental to the application, including reserved costs, if any, with costs to be taxed in default of agreement pursuant to order 62 of the Federal Court Rules (Cth).

Orders

Orders of the court

The application filed 23 December 2005 to transfer the bankruptcy proceedings to the Family Court of Australia is dismissed.

The respondent’s notice of a constitutional matter filed 23 December 2005 does not raise any genuine issue under the Constitution or as to its interpretation.

The notice of intention to oppose petition filed 23 December 2005 is dismissed.

The respondent’s application for an adjournment of the creditor’s petition is refused.

The respondent shall pay the applicants’ costs, of and incidental to the application including reserved costs, if any, with costs to be taxed in default of agreement pursuant to order 62 of the Federal Court Rules (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Wagner v Samootin [2006] FMCA 688

Most Recent Citation

Samootin v Wagner [2006] FCA 945

Cases citing this decision · 5 of 5 shown

Samootin v Official Trustee in Bankruptcy
[2011] FCA 613 Para 3

…on the application of Ms Giselle Wagner by reason of unpaid costs orders in proceedings in the Supreme Court of New South Wales: Wagner v Samootin [2006] FMCA 688. All avenues of appeal in relation to the sequestration order have been exhausted.…
Samootin v Official Trustee in Bankruptcy
[2010] FCAFC 113 Para 5

…[2008] FCA 1066) Flick J referred at [19] to the sequestration order made against the estate of Ms Samootin on 24 May 2006 ( Wagner & Anor v Samootin [2006] FMCA 688). Flick J went on to note at [20] – [21]: 20An application to stay the sequestration order has been dismissed by a judge of this Court: Samootin v Wa…
Samootin v Wagner
[2008] FCA 1066 Para 19

…he failure to comply with the bankruptcy notice. A sequestration order was made against the estate of Ms Samootin on 24 May 2006: Wagner v Samootin [2006] FMCA 688.…
Samootin v Wagner
[2007] FMCA 1100 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 Wagner
[2006] FCA 945 Para 14

…urt is asked to refrain from making a sequestration order because litigation, out of which the debt arose, is not yet complete: see Wagner v Samootin [2006] FMCA 688. Ms Samootin made no attack on his Honour's statement of principles, and it seems to me, with respect, that he correctly stated those principles.…

View all 5 citing cases →

Cases cited in this decision · 14 of 14 shown

Samootin v Shea & Ors
[2005] NSWCA 398 Para 8

…ntilated before the Court of Appeal, in an application for leave to appeal against the orders made by Palmer J on 28 June 2004: Samootin v Shea & Ors [2005] NSWCA 398. Their Honours Giles and Bryson JJA, on dismissed the application, found that the suggested new evidence would have been available at the hearing bef…
Samootin v Wagner & Anor
[2005] FMCA 1512 Para 4

…Mr Stoljar referred me to Samootin v Wagner & Anor [2005] FMCA 1512 per McInnis FM. Mr Stoljar submitted that many of the arguments that were first before McInnis FM, in an application to set aside the bankruptcy notice and/or extend time for compliance, were again agitated before this Court in this adjournment app…
Samootin v Shea & Ors
[2005] HCATrans 732 Para 2

…of the Palmer J judgment in 2003 was refused for the reason that the application had no reasonable prospects of success: Samootin v Shea & Ors [2005] HCATrans 732 per Hayne and Callinan JJ (also in affidavit of Tania Maree Noonan sworn 25 January 2006, tab 16). c)The other applications, proceedings and appeals curren…
Samootin v Shea & Ors
[2005] HCATrans 181 Para 11

…almer J’s judgment, including the costs orders, which was the subject of the bankruptcy notice and the creditor’s petition: Samootin v Shea & Ors [2005] HCATrans 181.…
Re Sanders; Knudsen and Yates (t/a The Hargreaves Practice) v Sanders
[2003] FCA 1079 Para 4

…These principles are found in Knudsen & Yates trading as the Hargreaves Practice, in the matter of Sanders v Sanders [2003] FCA 1079 per Bennett J: 22. The onus of proving that the debtor is able to pay his debts is on Mr Sanders. As noted by Hely J in Australia and New Zealand Banking Group Ltd v Foyster [2000] F…
Samootin v Shea (No 2)
[2003] NSWSC 695 Para 6

…iable for any wrong doing the first applicant creditor may have committed in relation to the plaintiff as alleged: Samootin v Shea & Ors (No.2) [2003] NSWSC 695. Those matters were not evident at the time of Mr Holmes’ joinder and, in any event, were relevant considerations in the Court’s exercise of its discretion…
Westpac Banking Corporation v Carver
[2003] FCA 221 Para 11

…ting proceedings may have impact on a grant of a sequestration order, I was referred to Westpac Banking Corporation v Carver, in the matter of Carver [2003] FCA 221 per Beaumont J: 2. On behalf of the respondent debtors reliance has been placed upon the principle explained by Davies, Lockhart and Neaves JJ in Ahe…
McCormack v Newburg Enterprises Pty Ltd
[2002] FCA 457 Para 6

…Mr Stoljar then addressed me on the exercise of the Court’s discretion to transfer the proceedings. He referred to Re Sabri; Ex parte Sabri v Brien (1995) 60 FCR 131 (“ Re Sabri ”) in which Davies J made observations about how the Federal Court could exercise its discretion under s.35A of the Act to transfer proceed…
Stankiewicz v Plata
[2000] FCA 1185 Para 7

…In Stankiewicz v Plata [2000] FCA 1185 per Drummond, Sackville and Dowsett JJ, Their Honours said: 31. Under the terms of the Family Court orders, the matrimonial home was to be sold "upon discharge of the mortgage". That event was expected to occur by February 1999, just under one year after the sequestration ord…
Australia & New Zealand Banking Group Pty Ltd v Foyster
[2000] FCA 400 Para 4

…nus of proving that the debtor is able to pay his debts is on Mr Sanders. As noted by Hely J in Australia and New Zealand Banking Group Ltd v Foyster [2000] FCA 400 (`Foyster') at [17] it is not sufficient for the respondent simply to establish that he has assets which exceed his liabilities in value. It must als…
Abeyratne v Trkulja
[1998] FCA 1676 Para 3

…on is a broad discretionary one which must be exercised with a view to doing justice between the parties: s.33(1)(c) of the Act; Aveyratn v Trkulja (1998) 90 FCR 253.…
Trojan v Corporation of Hindmarsh
[1987] FCA 276 Para 4

…y, the Court retains a discretion whether or not to dismiss the petition. 24. As pointed out by the Full Court in Trojan v Corporation of Hindmarsh (1987) 16 FCR 37 (`Trojan') at 48, a sterile demonstration of an ability to achieve payment which was not in reality likely to occur, may still result in a sequestratio…
Sandell v Porter
[1966] HCA 28

…rs [2005] HCATrans 181 Samootin v Shea & Ors [2005] NSWCA 398 Samootin v Shea & Ors (No.2) [2003] NSWSC 695 Samootin v Wagner & Anor [2005] FMCA 1512 Sandell v Porter (1966) 115 CLR 666 Stankiewicz v Plata [2000] FCA 1185 Westpac Banking Corporation v Carver, in the matter of Carver [2003] FCA 221…
[1987] FCA 504
[1987] FCA 504 Para 2

…tion of the bankruptcy proceedings, provided that the appeal was based on genuine and arguable grounds: Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137. The bankruptcy notice and subsequent creditor’s petition in these proceedings rely on a decision of the Supreme Court of New South Wales, 11968/2005…

Legislation cited in this decision · 6

Bankruptcy Act 1966 (Cth)
3, 35A 3 mentions (from Para 1)
Family Law Act 1975 (Cth)
44, 79, 90AC 3 mentions
Judiciary Act 1903 (Cth)
78B 3 mentions (from Para 4)
Supreme Court Rules 1970 (NSW)
4 2 mentions (from Para 8)
Supreme Court Act 1970 (NSW)
1 mention (from Para 9)
Uniform Civil Procedures Rules 2005 (NSW)
1 mention (from Para 1)