Samootin v Shea & Ors [2005] NSWCA 16 (17 February 2005)

CITATION: Samootin v Shea & Ors [2005] NSWCA 16

FILE NUMBER(S):

40603/04

HEARING DATE(S): 7 February 2005

JUDGMENT DATE: 17/02/2005

PARTIES:

Alexandra Samootin - Claimant

Christopher George Shea - First Opponent

Peter John Deans - Second Opponent

Loan Design Pty Ltd - Third Opponent

S R Deans Pty Ltd - Fourth Opponent

Giselle M Wagner - Fifth Opponent

Adrian Holmes - Sixth Opponent

JUDGMENT OF: Giles JA

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): 1973/01

LOWER COURT JUDICIAL OFFICER: Palmer J

COUNSEL:

Claimant in person

B Muir - Second to Fourth Opponents

J Reid - Fifth and Sixth Opponents

SOLICITORS:

Brian Muir & Company - Second to Fourth Opponents

Mallesons Stephen Jaques - Fifth and Sixth Opponents

CATCHWORDS:

Application for stays of "judgments" and costs orders - various proceedings - current application for leave to appeal in principal proceedings - a number of applications filed seeking special leave to appeal to High Court - leave to appeal relevantly refused at earlier time - no prospect of appeal - or of special leaves to appeal - application in large part misconceived and wholly without substance - dismissed with indemnity costs. ND

LEGISLATION CITED:

DECISION:

Amended notice of motion dismissed; Ms Samootin pay costs on an indemnity basis.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40603/04

ED 1973/01

GILES JA

Thursday 17 February 2005

SAMOOTIN v SHEA & ORS

Judgment

1 HIS HONOUR: Ms Alexandra Samootin was the plaintiff in proceedings 1973/01 in the Equity Division of the Supreme Court. The defendants in the proceedings were Mr Christopher Shea, Mr Peter Deans, Loan Design Pty Ltd (“Loan Design”), S R Deans Pty Ltd (“S R Deans”), Ms Giselle Wagner and Mr Adrian Holmes.

2 Palmer J held that there should be judgment for the defendants, but made a declaration as to the respective interests of Ms Samootin, Mr Shea and Loan Design in two properties the subject of the proceedings and orders for an inquiry and taking of accounts to quantify the interests and make a financial adjustment. He ordered that Ms Samootin pay the costs of the defendants other than Mr Shea, who appeared for himself.

3 Ms Samootin appealed purportedly as of right from the decision of Palmer J in proceedings 40641/03 in this Court. On 3 June 2004 the appeal was dismissed as incompetent, general leave to appeal was refused, but limited leave to appeal was granted so that the declarations and orders for an inquiry and taking of accounts could be reformulated.

4 Ms Samootin then applied for leave to appeal from the decision of Palmer J in the present proceedings 40603/04 in this Court. Her application has been listed for hearing on 15 May 2005.

5 By an amended notice of motion filed in proceedings 40603/04 Ms Samootin applied for the stay of a great many “judgments” and costs orders against her in proceedings 1971/03, in proceedings in the Court of Appeal including but not confined to proceedings 40641/03, and in some other proceedings in the Supreme Court; she also applied for a stay of “all the proceedings in the matter 1973/01” and of some costs assessment proceedings.

6 There is the appearance that a collection of adverse orders or outcomes encountered by Ms Samootin has been indiscriminantly listed in the amended notice of motion. At all times Ms Samootin has been self-represented. Palmer J has referred to the “nightmarish web of litigation” in which she has enveloped the defendants since 1998. Many strands have been added to the web. Irrelevancy and repetition, and extravagant and often scandalous assertions, mark the materials and submissions on which Ms Samootin has relied, with little assistance in considering the basis for the relief she seeks and the occasions for individual stays. It is nonetheless necessary to determine, as best as can be done, whether Ms Samootin is entitled to the relief she seeks.

7 It is clear enough that at the heart of the claims to relief is the contention that Ms Samootin will succeed in overturning what she regards as the adverse outcome of the proceedings heard by Palmer J. It is convenient first to address that matter.

8 In his reasons published on 1 August 2003 Palmer J described “[t]he essence of Ms Samootin’s allegations -

“– part of her proportion of the proceeds of sale of a house at 82 Waterview Street, Mona Vale (“the Mona Vale Property”) owned jointly by her and Mr Shea were used by Mr Shea, Mr Deans and the Third Defendant, Loan Design Pty Ltd (‘Loan Design’) in the purchase in the name of Loan Design alone of a property at 24 Oxford Falls Road, Beacon Hill (‘No.24’) without her knowledge and consent;

– part of her proportion of the proceeds of sale of the Mona Vale Property was used in the purchase of 26 Oxford Falls Road, Beacon Hill (‘No.26’) pursuant to an agreement or understanding between herself and Mr Shea that the two of them would be registered as proprietors of the property as joint tenants but, without her knowledge and consent, Loan Design was registered as the sole proprietor;

– the Fifth Defendant (‘Ms Wagner’) who acted as the solicitor for Mr Shea and Ms Samootin on the sale of the Mona Vale Property and for Mr Shea and Loan Design on the purchase of Nos.24 and 26 was negligent and in breach of her fiduciary duties in failing to account to Ms Samootin for her share of the proceeds of sale and in permitting those proceeds of sale to be used in the purchase of Nos.24 and 26 in the name of Loan Design alone;

– Loan Design was guilty of misleading and deceptive conduct in contravention of s.51AA, s.51AC and s.52 of the Trade Practices Act 1974 (Cth) (‘TPA’) and the other Defendants were involved in those contraventions.”

9 His Honour recorded that Mr Shea, Mr Deans and Loan Design did not dispute, and had never disputed, that Ms Samootin’s share of the net proceeds of sale of the Mona Vale property had been used in the purchase of No 24 and 26 and that she had a proportionate beneficial interest in those properties. After setting out the various accounts of relevant events, he said that, for reasons he gave, he had no doubt that Ms Samootin’s account could not be accepted where it differed from other accounts. His Honour found -

“– prior to exchange of contracts for the purchase of No.26 in the name of Mr Shea alone, Ms Samootin agreed with Mr Shea that her share of the proceeds of the Mona Vale Property would be used in the purchase of No.26;

– Ms Samootin suggested and acquiesced in the purchase of No.26 in the name of Mr Shea alone because she did not want her pension benefits to be at risk in case she and Mr Shea were able to develop No.26;

– it was at all times agreed and understood between Ms Samootin and Mr Shea that Ms Samootin would have an interest in No.26 commensurate with her contribution to the equity therein;

– prior to the exchange of contracts for the purchase of No.26, Ms Samootin instructed Ms Knowles that the purchase of No.26 was to be in the name of Mr Shea alone. Further, she confirmed these instructions to Ms Wagner in a meeting in Ms Wagner’s office on 23 October 1997;

– after exchange of contracts for the purchase of No.26, it was agreed between Ms Samootin, Mr Shea and Mr Deans that the parties would acquire both Nos.24 and 26 in the name of a company for the purpose of developing both properties;

– Ms Samootin agreed and understood that her share of the proceeds of sale of the Mona Vale Property would be used in the purchase of Nos.24 and 26 by the company;

– prior to settlement of the purchase of Nos.24 and 26, all parties agreed and understood that Ms Samootin would have an interest in both properties commensurate with her contribution to the equity therein;

– Ms Samootin expressly or impliedly authorised Mr Shea to give instructions on her behalf to Ms Wagner implementing the parties’ agreement for the purchase of Nos.24 and 26 in the name of a company;

– since settlement of the purchase of Nos.24 and 26, Loan Design, Mr Shea and Mr Deans have never denied the interest of Ms Samootin in those properties.”

10 These findings translated into the declaration and orders for an inquiry and taking of accounts, but were fatal to Ms Samootin’s claims in the proceedings even if the claims had followed from acceptance of her allegations (which they did not).

11 I have referred to the appeal purportedly as of right in proceedings 40641/03. When the appeal came on for hearing the Court raised the competency of the appeal. After hearing submissions, it was held that it was incompetent because the Court was satisfied that it did not involve a matter at issue amounting to or of the value of $100,000 or more. It seems that the matter was treated as an application for leave to appeal, and with reference to difficulties in the form of the orders made leave to appeal, limited to the form of the orders, was granted. In the reasons published on 3 June 2004 Handley JA, with whom Sheller and Ipp JJA agreed, said -

“14. The Court has heard Ms Samootin on her application for leave to appeal generally, and at greater length than would be allowed to a party who was legally represented. Despite her submissions, there is no reason to doubt the substantial correctness of the judgment of Palmer J of 1 August 2003, nor is there any reason to think that there has been any miscarriage of justice as a result of his Honour’s rulings on evidence and procedure during the trial.

15. I would, therefore, refuse general leave to appeal and grant leave to appeal limited to the formal orders made by Palmer J on 29 September 2003.”

12 A number of Palmer J’s orders were set aside, and the proceedings were remitted to his Honour for the making of orders “to enable the resolution of the outstanding accounting and related issues between these parties”. The reformulated orders were made on 28 June 2004.

13 Ms Samootin’s application for leave to appeal in the present proceedings 40603/04 is a repetition of the application for leave to appeal which she was permitted to make on 3 June 2004. That she seeks leave to appeal from orders of 28 June 2004 is a matter of form, and does not affect the substance. She was unsuccessful on the earlier occasion, and it is unlikely that a second application will be entertained. The prospect of Ms Samootin overcoming in this Court the decision of Palmer J is for that reason alone, in my view, negligible.

14 On 2 November 2004 Ms Samootin filed an application for special leave to appeal to the High Court from, amongst other matters, the decision of this Court on 3 June 2004. The application was filed out of time. It will be necessary for Ms Samootin to obtain an extension of time, and special leave to appeal either in relation to the holding that the appeal was incompetent or in relation to the holding that general leave to appeal should not be granted, and to succeed in the consequent appeal. This would not overcome the decision of Palmer J, although whether his Honour’s decision was open to error may be material to the High Court’s consideration. It would remain for the appeal to be heard in this Court.

15 In my opinion, Ms Samootin has not shown any prospect of obtaining special leave to appeal, because I do not think she has shown arguable error in the holdings in this Court and I have come to the same view that there is no reason to doubt the substantial correctness of the judgment of Palmer J. On well-established principles of appellate review the findings fatal to Ms Samootin’s claims are in my view not open to successful challenge on appeal, nor do I think arguable grounds have been demonstrated for vitiating procedural unfairness.

16 In my opinion, that Ms Samootin might overturn what she regards as the adverse outcome of the proceedings heard by Palmer J is so remote that giving effect to his Honour’s decision should not be inhibited by any form of stay.

17 I go then to the “judgments” and costs orders in turn.

Stay of orders in proceedings 1973/01

18 In the amended notice of motion Ms Samootin seeks to stay -

“4. In the Court Below: Equity Division, Supreme Court, File No. 973/01

i. Justice Palmer, Judgment and costs orders of 1.8.03 for the 5th and 6th Defendants.

ii. Justice Palmer, Judgment and costs orders of 27.8.03 for the 5th and 6th Defendants.

iii. Justice Palmer, Orders of 29.9.03; Declaration and costs orders for the 2nd to the 4th Defendants.

...

12. In the Court below: Equity Division, Supreme Court, File No. 1971/03

i. Justice Palmer, Judgment and orders of 1.10.02.

ii. Justice Palmer, Judgment and orders of 10.10.02.

iii. Justice Palmer, Orders 11.10.02.

iv. Justice Palmer, Orders 16.10.02

v. Justice Palmer, Judgment and Costs Orders, 17.10.02 (Application for leave to have major surgery on 19.2.02 granted by Justice Palmer. The 2nd to 4th Defendants and the 5th Defendant opposing the granting of leave for me to have major surgery. Costs awarded against me for the 2nd to 4th Defendants; and the 5th Defendant.)

16. To stay all the costs orders of Justice Palmer in the proceedings 1973/01, including 12.04.02; 5.7.02; 23.8.02; 17.10.02; 13.2.03; 17.3.03; 1.8.03 and 27.8.03.

...

17. To stay all the proceedings in the matter 1973/01, pending the outcome of the Court of Appeal hearing 40603/04; and the High Court Special Leave to Appeal S 430 of 2004.”

19 On 11 April 2002 Ms Samootin applied before Master McLaughlin for a variety of interlocutory and other orders. Some interlocutory orders were made, but the application was otherwise dismissed. The Master ordered that the costs be costs in the proceedings. There is no occasion for a stay separately from any stay of the costs orders ultimately made by Palmer J.

20 On 5 July 2002 Palmer J heard an application by Ms Samootin for a stay of orders providing for interlocutory steps towards the hearing and for an order that he disqualify himself from hearing the proceedings. His Honour dismissed the application and ordered that Ms Samootin pay the costs. In her appeal and application for leave to appeal Ms Samootin contended and contends that his Honour should have disqualified himself from hearing the proceedings, although not specifically upon the application made on 5 July 2002. Arguably the costs order could be set aside if Ms Samootin overturned the outcome of the proceedings on the ground that his Honour should then have disqualified himself. Within what I have earlier said, a stay against that possibility is not warranted.

21 So far as appears from the Court file, on 23 August 2002 Palmer J made orders in relation to interrogatories and other interlocutory matters, the only costs order being that the costs of an application by Ms Samootin be costs in the proceedings. Again, there is no occasion for a stay of the costs order separately from any stay of the costs order ultimately made.

22 The proceedings were listed for hearing to commence on 22 October 2002. On 1 October 2002 Ms Samootin applied for vacation of the hearing date by reason of a pending application for leave to appeal from a decision of Windeyer J (see proceedings 2446/02 and 40600/02 below). The application was refused. No costs order was made. There is nothing to stay.

23 Orders were made on 10 October 2002 by a direction that Ms Samootin make herself available for medical examination, in connection with a foreshadowed application to vacate the hearing date by reason of her medical condition, and the grant of leave to the defendants to issue subpoenas. So far as appears from the Court file, no costs order was made. From his Honour’s reasons of 17 October 2002, Ms Samootin did not make herself available. There is nothing to stay.

24 The orders made on 11 October 2002 gave the defendants leave to issue subpoenas on short notice. No costs order was made. There is nothing to stay.

25 The order made on 16 October 2002 established an audio link with Dr Peach, apparently Ms Samootin’s treating specialist, for evidence in connection with the foreshadowed application to vacate the hearing date. Some of the defendants were ordered to pay the costs associated with the arrangement. No order for costs was made against Ms Samootin. There is nothing to stay.

26 The application to vacate the hearing date by reason of Ms Samootin’s medical condition was heard on 17 October 2002. For reasons then given, his Honour vacated the hearing date. He ordered that the costs of Ms Samootin’s application, including any medical costs which may have been incurred by the defendants, be paid by Ms Samootin, and that Ms Samootin pay the defendants’ costs thrown away by reason of the vacation of the hearing date. Ms Samootin applied for leave to appeal, and has filed an application for special leave to appeal to the High Court from the dismissal of that application (see proceedings 41053/02 below). As I later state, I do not think there is a real prospect of a grant of special leave. No ground has been made out for a stay of the costs order.

27 3 March 2003 was fixed as the new date for commencement of the hearing. On 13 February 2003 Ms Samootin applied to vacate the hearing date on the ground that she was to undergo surgery for a medical condition on 19 February 2003. Palmer J granted the application and re-fixed the proceedings to commence on 24 March 2003. His Honour ordered that costs of the application be costs in the proceedings, but that Ms Samootin pay the defendants’ costs of the hearing thrown away by reason of the vacation. So far as has been made known Ms Samootin did not appeal and is not applying for leave to appeal from the costs order, and there is no occasion for a stay of the costs order; in any event no ground has been made out for a stay.

28 On 17 March 2003 Palmer J dismissed with costs a further application by Ms Samootin to vacate the hearing date of 24 March 2003. It does not appear that the appeal was, or the application for leave to appeal is, on a ground that his Honour erred in declining to vacate the hearing date. From his Honour’s reasons, his decision in that respect was well justified. No ground has been made out for a stay of the costs order.

29 Palmer J published his reasons in the substantive proceedings on 1 August 2003, but made no orders on that day. There is nothing to stay.

30 On 27 August 2003 Palmer J ordered judgment in favour of Ms Wagner and Mr Holmes and that their costs be paid by Ms Samootin. Ms Samootin applied to his Honour for a stay of the costs order pending determination of an appeal she had filed following the publication of reasons on 1 August 2003 (proceedings 40641/03). His Honour was of the opinion that there were “no arguable grounds of appeal whatsoever” in respect of the judgment in favour of Ms Wagner and Mr Holmes, and dismissed that application with costs. Arguably the costs order could be set aside if Ms Samootin overturned the outcome of the proceedings on appeal, but again within what I have earlier said a stay against that possibility is not warranted.

31 Palmer J made the orders in respect of the other defendants, relevantly orders for an inquiry and taking of accounts and a costs order in favour of Mr Deans, Loan Design and S R Deans, on 29 September 2003. The current orders are those made by his Honour on 28 June 2004, after the proceedings had returned to him for reformulation of the formal orders. Again, within what I have earlier said a stay against the possibility that those orders will be overturned on appeal is not warranted.

32 There is a further reason why the orders for an inquiry and taking of account should not be stayed. I was informed that steps have been proceeding towards the inquiry and taking accounts. Ms Samootin at one point in her submissions was content with that continuing, and seemed to want it to continue and thereby to obtain financial records from some of the defendants. She then said that she wanted a stay. I do not think she is troubled by the continuance. Mr Deans, Loan Design and S R Deans wanted the inquiry and taking accounts to continue even pending Ms Samootin’s appellate endeavours, and were willing to risk the waste of effort and expenditure in the event that the orders were set aside. In my opinion, the inquiry and taking accounts should continue, and even if there were some prospect of a successful appeal no sufficient reason has been shown to stay the orders.

Stay of orders in proceedings 2446/02

33 In the amended notice of motion Ms Samootin seeks to stay -

“8. In the Court below: Equity Division, Supreme Court, File No. 2446/02

i. Justice Windeyer, Judgment and Costs orders for the St George Bank Limited, 17.2.02. (Application to join St George Bank Limited to the proceedings, dismissed with costs to St George Bank Limited.)”

34 Ms Samootin had applied unsuccessfully in proceedings 1973/01 to join St George Bank as a party to the proceedings. In the separate proceedings 2446/02 she claimed an order that it be so joined and other orders, on the basis that St George Bank had participated in the fraudulent conduct of Messrs Shea and Deans. The proceedings were dismissed with costs, as to joinder because Ms Samootin could not apply again in the separate proceedings and as to the other matters because Windeyer J was satisfied that they could not succeed.

35 Ms Samootin applied for leave to appeal from Windeyer J’s decision (see proceedings 40600/02 below). From the summary of argument, the application concentrated on joinder. On 14 February 2003 Stein and Hodgson JJA dismissed the application with costs.

36 There is at the least irregularity, in this and following instances in that the application for a stay is not made in the proceedings in which the relevant order was made or an appeal or application for leave to appeal from the decision in those proceedings. The amended notice of motion did not name St George Bank as a respondent, and St George Bank had not been served. When this was pointed out, Ms Samootin said that she did not seek the stay; in any event no ground for a stay (which could only be of the costs order) has been made out.

Stay of orders in proceedings 40600/02

37 In the amended notice of motion Ms Samootin seeks a stay -

“6. Application for Special Leave to Appeal, High Court, No. S428 of 2004

i. Justice Stein and Justice Hodgson, Court of Appeal, 40600/02, given on 14.2.02 (Application to join St George Bank Limited to the proceedings, dismissed with costs to St George Bank Limited.)”

38 This was the application last mentioned for leave to appeal from the decision of Windeyer J in proceedings 2446/02. On 2 November 2004 Ms Samootin filed an application for special leave to appeal from their Honours’ decision.

39 St George Bank has not been served and in any event no ground for a stay of the costs order has been made out.

Stay of orders in proceedings 41053/02

40 In the amended notice of motion Ms Samootin seeks to stay -

“11. Application for Special Leave to Appeal, High Court, No. S519 of 2004

i. Justice Meagher and Justice Santow, Court of Appeal, 41053/02, judgment and orders given by 4.7.03. (Application for leave to appeal against the costs orders awarded against me in the Court below, 1973/01, for the 2nd to the 4th Opponent; and the 5th Opponent, dismissed with costs.)”

41 After filing a holding summons, on 10 February 2003 Ms Samootin filed an application for leave to appeal from “the whole of the decision of Justice Palmer on 17 October 2002”. This was the decision on the application to vacate the hearing date in proceedings 1973/01 From the summary of argument, Ms Samootin’s complaint was that she had been ordered to pay costs. The application was heard by Meagher and Santow JJA, who dismissed it with costs on 4 July 2003. On 23 December 2004 Ms Samootin filed an application for special leave to appeal from the decision of Meagher and Santow JJA.

42 The application for special leave to appeal was filed well out of time. I do not think there is a real prospect of a grant of special leave. In my opinion, no ground has been made out for a stay of their Honours’ costs order.

Stay of orders in proceedings 40509/03

43 In the amended notice of motion Ms Samootin seeks to say -

“9. Application for Special Leave to Appeal, High Court, No S518 of 2004

i. Justice Sheller, Justice Hodgson and Justice Tobias, Court of Appeal, Supreme Court, 40509/03 given on 10.7.03. (Application for leave to join St George Bank Limited and Mr David Mack to the proceedings dismissed. Costs orders for the 2nd to the 4th Opponents; 5th and 6th Opponents and the St George Bank Limited.)”

44 Ms Samootin appealed from orders made by Palmer J on 20 May and 3 June 2003. The orders refused an adjournment in proceedings 1973/01 sought by Ms Samootin so that she could pursue proceedings recently brought in the Federal Court but permitted her to amend to include the claims in those proceedings proceedings 1973/01, and refused leave to join additional defendants including St George Bank. The appeal purportedly as of right was incompetent, but was treated as an application for leave to appeal. On 10 July 2003 Sheller, Hodgson and Tobias JJA dismissed the application with costs, saying that they thought Palmer J was correct for the reasons he gave. On 23 December 2004 Ms Samootin filed an application for special leave to appeal from the orders of Sheller, Hodgson and Tobias JJA.

45 So far as a costs order was made in favour of St George Bank, again Ms Samootin said that she did not seek the stay and in any event it should not be ordered. Mr Mack is in the same position. The application for special leave to appeal was filed well out of time. Again I do not think there is a real prospect of a grant of special leave. In my opinion, no ground has been made out for a stay of their Honours’ costs order.

Stay of orders in proceedings 40641/03

46 In the amended notice of motion Ms Samootin seeks a stay -

“3. Application for Special Leave to Appeal, High Court, No. S430 of 2004

i. Justice Santow, Judgment and Cost orders given on 1.9.03, Court of Appeal, Supreme Court, No 40641/03 (Application for stay orders for the 5th to 6th Respondents, dismissed. Costs orders for the 5th and 6th Respondents.)

ii. Justice Handley, Judgment and Costs orders given on 27.10.03; Court of Appeal, Supreme Court, No 40641/03 (Application for stay orders for the 2nd to 4th Respondents, dismissed. Costs orders for Mr Brian Muir, 2nd to 4th Respondents; Costs orders for 5th and 6th Respondents.)

iii. Justice Giles, Judgment and Costs orders given on 5.4.04; Court of Appeal, Supreme Court, No 400641/03 (Application for leave to subpoena Mr Peter Famularo to Court of Appeal before a single judge. Justice Palmer dismissed Mr Peter Famularo before he was heard. Mr Peter Famularo was a willing witness and gave consent to appear in Court before a single judge. Application dismissed. Costs Orders for Mr Brian Muir, 2nd to 4th Responents; Costs orders for 5th and 6th Respondents.)

iv. Justice Handley, Justice Sheller, Justice Ipp, Judgment and Costs orders given on 3.6.04; Court of Appeal, Supreme Court, No. 40641/03. (Costs orders for the St George Bank Limited. Appeal dismissed as incompetent. Justice Palmer’s declaration and orders made on 29.9.03 set aside. Proceedings remitted to the Equity Division with a view to making of orders for the outstanding issues between the parties to be resolved. No costs as to costs of any other party.)”

47 On 2 November 2004 Ms Samootin filed an application for special leave to appeal from the judgments identified in these paragraphs.

48 Ms Samootin applied for a stay of the costs order made by Palmer J on 27 August 2003 in favour of Ms Wagner and Mr Holmes. The application was heard by Santow JA on 1 September 2003. It was dismissed with costs. His Honour noted an undertaking by Ms Wagner and Mr Holmes that prior to seeking to take any enforcement proceedings in respect of the costs order, other than by way of seeking assessment of costs, they would give 30 days notice to permit Ms Samootin to apply for a stay.

49 On 27 October 2003 Handley JA heard an application for a stay of the orders made by Palmer J on 29 September 2003. His Honour referred to some difficulties in the form of the orders, but said that Ms Samootin herself acknowledged that an account would have to be taken to work out the interests of the parties in the properties and that the orders provided a proper basis for the accounting exercise to be undertaken. His Honour dismissed the application and ordered that Ms Samootin pay the costs of Mr Shea, Mr Deans, Loan Design and S R Deans. No order was made in favour of Ms Wagner and Mr Holmes.

50 On 5 April 2004 I heard an application by Ms Samootin for leave to issue subpoenas, including a subpoena to Mr Famularo whose evidence Ms Samootin wished to put before the Court of Appeal. I dismissed the application with costs.

51 I have described what occurred when the appeal came on for hearing on 3 June 2004. Ms Samootin was ordered to pay the costs of St George Bank, which she had applied to have joined as a party to the appeal. Otherwise no order was made as to costs, presumably because the defendants had not themselves raised the competency of the appeal.

52 As to all of these matters, the application for special leave to appeal was filed out of time. For reasons earlier given, I do not think there should be a stay of the substantive and costs orders made by Palmer J, and I do not think there is a real prospect of a grant of special leave to appeal from the costs orders made by Santow JA, Handley JA or myself. As to 3 June 2004, there can not be a stay of the costs order in favour of St George Bank, nor is there any basis for such an order, and there is otherwise no costs order to stay. The proceedings returned to Palmer J, who made fresh orders as contemplated by their Honours on 28 June 2004. There is nothing else to stay. In my opinion, no ground has been made out for stay orders.

Stay of orders in proceedings 40614/01

53 In the amended notice of motion Ms Samootin seeks a stay -

“5. Application for Special Leave to Appeal, High Court, No. S429 of 2004

i. Court of Appeal, Supreme Court, 40614/01, 16.11.01, Costs Orders. Application to reinstate AVO orders against the 2nd Defendant in the proceedings 1973/01; for assaulting me, dismissed in the Court of Appeal. Justice Neild in his Judgment on 19.7.01, said that I sustained the injuries outside my front door, when the 2nd Defendant had a ‘scuffle’ with me outside my front door at 26 Oxford Falls Road, Beacon Hill.”

54 Ms Samootin obtained an apprehended violence order against Mr Deans in the Local Court. Mr Deans appealed to the District Court. On 19 July 2001 Neild DCJ discharged the order. By a summons filed as proceedings 40614/01 on 13 August 2001 Ms Samootin purported to appeal and claimed “[r]elief by a prerogative writ”. By later amendment, she claimed a rehearing of the 19 July 2001 proceedings. On 16 November 2001 Mason P and Powell and Heydon JJA dismissed the summons with costs, on the ground that by statute the Court could not undertake either prerogative or appellate review of Nield DCJ’s decision.

55 On 2 November 2004 Ms Samootin filed an application for special leave to appeal from the decision of the Court of Appeal.

56 The irregularity (at the least) earlier mentioned is pronounced in this case, as is the indiscriminate and belated raising of satellite proceedings. No basis has been suggested on which a stay of the costs order might be granted, nor has any ground to stay the order been made out.

Stay of orders in proceedings 91593/04

57 In the amended notice of motion Ms Samootin seeks a stay -

“13. Stay the Costs of 2004/91593, Supreme Court, Costs (1) Wagner v Samootin the Amount of $385.00.”

“15. Stay the Costs Assessment No. 91593/04, Supreme Court of New South Wales, Court of Appeal on 4 July 2003, in matter number 41053 of 2002.”

58 On 24 September 2004 Ms Wagner applied for an assessment of costs pursuant to the order made by Meagher and Santow JJA on 4 July 2003 in proceedings 41053/02. On 13 January 2005 the cost assessor determined the application by an assessment of $9,056.44. Ms Samootin was invoiced for $385 as the cost assessor’s fees.

59 There is nothing remaining in the cost assessment to stay. Ms Wagner may seek recovery of the assessed costs, subject to 30 days notice pursuant to her undertaking. Payment of the invoiced sum may be required. Since I have held that no ground has been made out for a stay of the costs order, there is no basis for an order preventing either of these matters.

Stay of orders in proceedings 91594/04

60 In the amended notice of motion Ms Samootin seeks a stay -

“14. Stay the costs of 2004/91594, Supreme Court, Costs (1) Wagner & Anor v Samootin the amount of $2,136.75.”

61 On 24 September 2004 Ms Wagner and Mr Holmes applied for an assessment of the costs payable as a result of the orders made by Palmer J on 12 April 2002 [sic], 5 July 2002, 23 August 2002, 17 October 2002, 13 February 2003, 17 March 2003, 1 August 2003 and 27 August 2003 in proceedings 1973/01 and by Sheller, Hodgson and Tobias JJA on 10 July 2003 in proceedings 40509/03. On 11 January 2005 the cost assessor determined the application by an assessment of $155,572.69. Ms Samootin was invoiced for $2,136.75 as the cost assessor’s fees.

62 The application for a stay is in terms limited to the $2,136.75, but I will treat it as extending to the $155,572.69. The position is as in proceedings 91593/04.

General

63 Ms Samootin’s application is in large part misconceived and in whole without substance. I do not think she is entitled to any of the relief she seeks. The waste of time and resources, and the unwarranted disruption and expense occasioned to the defendants, will be evident.

64 The solicitor for Mr Deans, Loan Design and S R Deans gave notice that they would seek indemnity costs of the application. Ms Samootin must have appreciated that she would be exposed to a like order in favour of Ms Wagner and Mr Holmes. In my opinion, such an order should be made.

65 I order that the amended notice of motion be dismissed and that Ms Samootin pay the costs thereof on an indemnity basis.

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LAST UPDATED: 18/02/2005