Case: Samootin v Shea [2005] NSWCA 398
Outcome: cited
The Court of Appeal subsequently refused an application to reopen the question of leave to appeal: Samootin v Shea [2005] NSWCA 398. 17 A further series of events, not surprisingly, arose out of the costs orders originally made by Palmer J and subsequently by the Court of Appeal. 36 And in the statutory context of considering an application to annul her bankruptcy, a Federal Magistrate in his reasons ( Samootin v Wagner [2007] FMCA 1100) has referred to the decision of Palmer J and thereafter summarised the contentions then being advanced, one of which was the following: [13] Ms Samootin's second area of contentions raises whether the sequestration order ought not have been made by reason of the fact that "she is able to pay ... her debts" within s 52(2)(a) of the Bankruptcy Act . She argues that, once the inquiry into her equitable interest in the two properties is conducted and accounts are taken in relation to amounts owing between the parties, she will be found to possess assets which exceed her debts. Smith FM continued to recount an application made by Ms Samootin to issue subpoenas. In rejecting that application he observed: [19] The proposed witnesses included three of the natural defendants to the Supreme Court proceeding, Mr Shea, Mr Deans and Ms Wagner, and an employee of Ms Wagner at the relevant time, Ms Knowles, all of whom gave evidence before Palmer J and were cross-examined by the applicant. The applicant claims that she now has further information, has studied their evidence more closely, and has noted discrepancies in their evidence which she says would support her contention of fraud on their part. [20] In relation to the other five persons whose attendance Ms Samootin sought to compel, she presented to this Court affidavits from these persons prepared in 2005, which she had attempted to present to the High Court. She told me that the contents of these affidavits is the evidence which she would wish to present to this Court. Their evidence deposes to some events in 1997 which Ms Samootin believes to be relevant to the consideration of the purchase of the two properties at Oxford Falls Road, Beacon Hill. [21] All of this "fresh evidence" appears to have been previously presented by Ms Samootin in one form or another, both to the Supreme Court and to this Court in the previous bankruptcy proceedings. As I have indicated, she also sought to present it to the High Court in support of special leave applications. Although this is not clear on the material before me, in the Supreme Court it appears that it was addressed in two judgments of the Court of Appeal, which took the view that it would not significantly advance the applicant's case on appeal nor in any proceedings to set aside Palmer J's orders for fraud (see the judgment of Bryson JA given on 16 May 2005 in matter 40603/04, particularly at [15] and following, and also Giles JA at [28] referring to additional material sought to be presented. See also the judgment of the same two judges on 17 November 2005 in Samootin v Shea &amp; Ors [2005] NSWCA 398). It appears to me also that this material was presented to McInnis FM and to Lloyd-Jones FM in Ms Samootin's previous bankruptcy proceedings. They both took the view that it did not justify the Court setting aside the bankruptcy notice in the first case, and declining to make a sequestration order in the second. [22] I have endeavoured to understand the applicant's fresh evidence and her explanations as to its relevance and cogency, and I find myself in agreement with previous judges who have considered this material. In the context of s 52 of the Bankruptcy Act , and an application for annulment under s 153B , I am not satisfied that the material presented and sought to be presented would justify the bankruptcy court embarking on the extensive factual rehearing of the matter before Palmer J which the applicant seeks to obtain. I am not satisfied by the material going to this issue that the applicant has established that the sequestration order "ought not to have been made" by reason of any of the contentions now made by the applicant in relation to her fresh evidence.