Samootin v Wagner [2006] FCA 689 (31 May 2006)

Last Updated: 7 June 2006

FEDERAL COURT OF AUSTRALIA

Samootin v Wagner [2006] FCA 689

ALEXANDRA SAMOOTIN V GISELLE MONICA WAGNER & ORS
NSD 1046 OF 2006

STONE J
31 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1046 OF 2006

BETWEEN:	ALEXANDRA SAMOOTIN APPLICANT
AND:	GISELLE MONICA WAGNER FIRST RESPONDENT
	ADRIAN HOLMES SECOND RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	31 MAY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The notice of motion be dismissed.
2. There be no order as to 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	NSD1046 OF 2006

BETWEEN:	ALEXANDRA SAMOOTIN APPLICANT
AND:	GISELLE MONICA WAGNER FIRST RESPONDENT
	ADRIAN HOLMES SECOND RESPONDENT

JUDGE:	STONE J
DATE:	31 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 I have before me a notice of motion filed in Court on 31 May 2006 whereby the applicant, Ms Samootin, seeks that proceedings under a sequestration order made in the Federal Magistrates Court on 24 May 2006 be stayed until further order. The Federal Magistrate made orders that the sequestration order be stayed for seven days pursuant to section 52(3) of the Bankruptcy Act 1966 (Cth). That period of seven days expires today. The applicant seeks a further stay to ensure the continuity of stay until the disposition of her appeal against the sequestration order.

2 The applicant appeared for herself in this application. There has been no appearance for the respondents. The applicant tells me, and I have no reason to doubt the veracity of her statement, that the solicitor for the respondents was advised of this application but, presumably on instructions, declined to appear because of the additional costs that would be involved.

3 The applicant tells me that the debt underlying the creditor’s petition pursuant to which the sequestration order was made, is a debt arising from costs orders made against the applicant in the course of a long and unsuccessful battle in the New South Wales Supreme Court. The principal judgment before the New South Wales Supreme Court was given by Palmer J on 1 August 2003 (Samootin v Shea No.2 [2003] NSWSC 695). The claim before his Honour was a claim to set aside a purchase of two properties, being numbers 24 and 26 of Oxford Falls Road, Beacon Hill. It would appear that these properties had been purchased in part with the proceeds of the sale of the matrimonial home that the applicant and her ex-husband held as joint tenants. In his judgment Palmer J said at [1]-[2]:

‘This is a tragic case for all who have been involved in it. The Plaintiff, Ms Samootin, has developed a fixation that she has been a victim of a fraudulent conspiracy between her ex-husband, the First Defendant, ("Mr Shea"), and the Second Defendant, ("Mr Deans"), whereby she has been cheated out of her home. She has commenced proceedings in the Family Court, in this Court and in the Federal Court, all of which she has conducted herself without legal assistance.

The reality is that, while Ms Samootin's share of the net proceeds of sale of her jointly owned former matrimonial property was invested in the properties the subject of these proceedings and her name did not appear on the title to those properties, Mr Shea and Mr Deans have never denied that Ms Samootin had a beneficial interest in the properties commensurate with the proportion of her contribution to the parties' equity in the properties. Indeed, at Ms Samootin's request Mr Shea and Mr Deans signed an acknowledgment to that effect in July 1998, well before Ms Samootin commenced these proceedings.’

4 Palmer J subsequently referred to the ‘nightmarish web of litigation’ in which the defendants had been enveloped since 1998 in the various courts and to the very substantial cost that had been incurred as a result of that litigation. The Court of Appeal refused to grant the applicant leave to appeal from the judgment of Palmer J.

5 It is not necessary for me to go into the numerous other occasions on which leave to appeal was sought and further applications were made to reopen the question of leave to appeal. As recently as 17 November 2005 in a joint judgment (Samootin v Shea [2005] NSWCA 398) Giles and Bryson JJA considered an application to reopen the matter and to set aside the judgment of Palmer J for ‘fraud, due to discovery of fresh evidence.’ Their Honours referred to the fresh evidence that the claimant proposed to put before the Court and said at [6]-[7]:

‘In her affidavits and submissions the claimant substantially traverses once more the bases for leave to appeal put to this Court on 3 June 2004 and before us on 16 May 2005. She propounds that she has fresh evidence of fraud practiced upon her, particularly in relation to when the property 24 Oxford Falls Road, Beacon Hill was purchased and the circumstances of an attendance upon the solicitor Ms Wagner and the exchange of contracts for the purchase of 26 Oxford Falls Road, Beacon Hill.
The evidence on which the claimant seeks to rely in these respects would have been available for the hearing before Palmer J, but more important we do not think that there is any prospect that, if put before the Court in an appeal, it would bring about a different result. Having considered all the materials and the submissions on which the claimant relies to re-open her application for leave to appeal, we consider that no basis has been shown for reopening and that it remains that leave to appeal should be refused.’

6 Before me today, the applicant seeks a stay of the sequestration order so that she can appeal in this Court the orders made by the Federal Magistrate, on the basis that she is seeking to set aside the judgments, primarily that of Palmer J, which gave rise to the costs at issue under the creditor's petition. I have reviewed the notice of appeal which was filed on 31 May 2006. It does not follow any known rule of pleading but consists of a mixture of factual narrative and submissions canvassing the alleged fraud on which the applicant bases her claim. As I understand it, however, the new evidence that the applicant would propose to put before this Court on appeal is not substantially different from that referred to by Giles and Bryson JJA.

7 Having considered the notice of appeal and listened at some length to the applicant, it seems to me that the appeal is most unlikely to succeed. Given the length of litigation between the parties and the costs already incurred, I am not satisfied that it would be in the interests of justice to make the orders sought and therefore I must dismiss the notice of motion.

8 The orders of the Court are that the notice of motion be dismissed and that there be no order as to costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone .

Associate:
Dated: 7 June 2006

The applicant appeared in person.

Solicitor for the Respondents:	No appearance
Date of Hearing:	31 May 2006
Date of Judgment:	31 May 2006