Case: Samootin v Insolvency &amp; Trustee Service Australia [2007] FCA 1596
Outcome: cited
Separate proceedings have also been pursued in this Court by Ms Samootin claiming relief that Ms Sally Nash, a solicitor, be " estopped from entering into contract negotiations " on Ms Samootin's behalf: Samootin v Insolvency &amp; Trustee Service Australia [2007] FCA 1596. The involvement of Ms Nash arose out of a judgment previously given by Hammerschlag J of the Supreme Court of New South Wales. The relief claimed in this Court was refused: Samootin v Official Trustee in Bankruptcy [2007] FCA 1618. In dismissing the application, Jacobson J observed: [3] What I have been told this morning both by Ms Samootin and Ms Nash merely serves to confirm the observation made by Palmer J four years ago that this is a tragic case. However, that being said, it is not one which can be determined otherwise than in accordance with ordinary legal principles. The short answer to Ms Samootin's application is threefold. [4] First, her interest in the subject property vested in the Official Trustee in Bankruptcy when the sequestration order was made on 24 May 2006. [5] Second, the quantum of Ms Samootin's interest in the subject property has now been determined by the Supreme Court of New South Wales. [6] Third, the entitlement of Ms Samootin to remain on the property was conditional upon compliance with arrangements initially made with the registered proprietor, but subsequently formalised in an undertaking given to the Supreme Court of New South Wales and recorded in orders made by Hammerschlag J, initially on 17 July 2007 and corrected on 30 July 2007. His Honour thereafter continued as follows: [18] The substance of Ms Samootin's application is based upon her contention that Ms Nash entered into contracts on Ms Samootin's behalf allegedly in breach of the provisions of the Consumer Credit (New South Wales) Act 1995 (NSW). Ms Samootin submitted that she did not sign any mortgage and that it was not open to Ms Nash to agree on her behalf to make the payments recorded in the undertaking set forth in para 15A of Justice Hammerschlag's orders. [19] In my view, Ms Samootin's submission must be rejected. It has to be borne in mind first that Ms Samootin's interest in the property has, as I have said, vested in the Official Trustee in Bankruptcy. Second, and perhaps more importantly for present purposes, the undertaking to which Hammerschlag J referred was given by Ms Samootin. There is no question in my opinion that Ms Nash entered into any contract on behalf of Ms Samootin. Accordingly it cannot be suggested that there was any breach of the Consumer Credit Act as contended by Ms Samootin this morning. 41 It is similarly considered that the application to " void the Consent Orders " as made by Ms Nash should be refused. On 24 June 2008 those " Consent Orders " were identified as being those made on 17 July 2007 and as amended on 30 July 2007. Those orders were made in the proceedings before Hammerschlag J in the Supreme Court of New South Wales. 42 Ms Nash made no " Consent Orders "; she signed orders made by a court on behalf of her client. And, in any event, the involvement of Ms Nash in the various proceedings to date has also previously been the subject of prior judicial determination.