Case: Samootin v Official Trustee in Bankruptcy [2007] FCA 1618
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. 55 Given the repeated litigation of the same issues, it is further considered that Ms Samootin should be ordered to pay the costs of the Respondents in the present proceeding on an indemnity basis. A further order precluding Ms Samootin from bringing further proceedings has also been sought. Although the time when such an order should be made may rapidly be approaching, it is not considered that such an order should now be made. It may be noted that a like application was made to Jacobson J in October 2007 and then also declined: Samootin v Official Trustee in Bankruptcy [2007] FCA 1618 at [22] . 56 After the hearing on 4 July 2008 further material was filed by Ms Samootin. The matter was accordingly relisted on 16 July 2008 in order that the Respondents could be given copies of this further material and to determine whether they opposed that further material being considered. There was no opposition and the further material was considered. Ms Samootin was then informed, however, that after 16 July 2008 no further material would be considered. Ms Samootin has been extended every opportunity to place before the Court such material as she wanted to be taken into account. There is an obvious need for there to be finality in the presentation of both the evidence and submissions which any party, including an unrepresented party, wants considered. Notwithstanding that, a further Affidavit was in fact filed on 17 July 2008. With the concurrence of the Respondents, this further Affidavit has also been read and considered. 57 The orders of the Court are: 1. The Amended Application as filed on 16 June 2008 be dismissed. 2. The Applicant to pay the costs of the Respondents on an indemnity basis. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 21 July 2008 The Applicant: The Applicant appeared in person Counsel for the First and Second Respondents: K Dawson Solicitor for the First and Second Respondents: Mallesons Stephen Jacques Counsel for the Third Respondent: S Golledge Solicitor for the Third Respondent: Sally Nash &amp; Co Dates of Hearing: 24 June 2008, 4 July 2008 Date of Judgment: 21 July 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1066.html