Case: Samootin v Shea (No 2) [2003] NSWSC 695
Outcome: cited
The Applicant and her ex-husband owned a matrimonial property at Waterview St, Mona Vale. That property was apparently sold and the proceeds of sale used in the purchase of two properties: 24 and 26 Oxford Falls Rd, Beacon Hill. The proceedings in the Supreme Court apparently sought orders that the purchase of those properties be set aside. Those proceedings were initially resolved by Palmer J: Samootin v Shea (No 2) [2003] NSWSC 695. The hearing occupied seven days. In refusing relief, his Honour observed at the outset of his judgment: [1] 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. [2] 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 acknowledgement to that effect in July 1998, well before Ms Samootin commenced these proceedings. [3] As far as I am able to determine, these proceedings and the proceedings in the Family Court were never necessary in order to establish Ms Samootin's interest in the properties because that interest was not in contest. [4] Nevertheless, the Defendants have not been able to disentangle themselves from a nightmarish web of litigation in which Ms Samootin has enveloped them since 1998, not only in the Family Court and in this Court, but in the Local Court, the District Court and the Federal Court. There has been at least one application by Ms Samootin to the High Court and numerous applications by her to the Full Court of the Family Court and to the Court of Appeal. [5] The costs of this litigation to the present Defendants and others whom Ms Samootin has sought to join must be very substantial. A large number of costs orders have been made against Ms Samootin in the interlocutory proceedings in the various Courts. They are said to amount to about $150,000 and a final costs order will be made against her in these proceedings. Whether those costs can actually be recovered from Ms Samootin must be extremely doubtful. His Honour noted that the " reality " was that the Applicant was entitled to a share of the net proceeds of sale of her former matrimonial property, but that such a share had not been denied. On 27 August 2003 costs of Ms Wagner and Mr Holmes were awarded against Ms Samootin by Palmer J. Those costs were assessed and judgment entered in the sum of $155,522.69. 14 On 3 June 2004 the decision of Palmer J came before the Court of Appeal. Leave to appeal was granted but limited to the form of the orders as made by the trial judge: Samootin v Shea (No 3) (Unreported, NSWCA, Handley, Sheller and Ipp JJA, 3 June 2004). In doing so, 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. 44 The contention that Ms Wagner has been guilty of professional negligence, is also an issue which previously has been pursued by Ms Samootin: Samootin v Shea (No 2) [2003] NSWSC 695. In outlining the " essence " of her claims as advanced in the Supreme Court, Palmer J thus observed in relevant part as follows: [9] The essence of Ms Samootin's allegations is as follows: ... &#8226; 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 No 24 and No 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 No 24 and No 26 in the name of Loan Design alone... His Honour went on to observe, both in respect to the role played by Ms Wagner and Mr Holmes: [17] Nevertheless, I concluded that I was obliged to hear the whole of these proceedings for two reasons. First, if Ms Samootin's account of the facts was correct, a finding was possible that Ms Wagner had acted negligently or in breach of fiduciary duty. Even though such negligence or breach of duty did not result in Ms Samootin being deprived of an interest in the properties, it might be possible for Ms Samootin to prove some other compensable damage, as she had claimed in para6 and para7 of the Relief: see para11. Second, there should be findings of the Court on the factual issues which would bind the parties by issue estoppels or estoppels by judgment so as to put an end, so far as it is possible, to all further controversy between the parties. [18] Finally, I should add that the Sixth Defendant, Mr Holmes, purchased the goodwill of Ms Wagner's practice well after the events in question. Ms Samootin has made no assertions against Mr Holmes and it is clear that he should never have been joined as a Defendant. 45 Rather than making a finding of negligence against Ms Wagner, his Honour concluded: Findings [65] In my opinion there can be no doubt that Ms Samootin's account of events cannot be accepted in any material particular in which it differs from the accounts given by the other witnesses. My reasons are as follows. ... [78] Likewise, I accept the evidence of Ms Wagner. I formed the impression that she was a careful solicitor who was in the habit of taking file notes of matters of significance. In the present case, Ms Wagner had made contemporaneous file notes which supported her evidence where it differed from Ms Samootin's evidence. Ms Wagner was a solicitor who had had experience in family law: it is inherently probable that when dealing with the proceeds of sale of the Mona Vale Property she would have been aware of the need to obtain clear instructions to use the proceeds of sale in the purchase of another property in the name of one of the parties only. I have no hesitation in accepting Ms Wagner as a witness whose evidence was truthful and accurate. Those findings were made in a context where Ms Wagner had been cross-examined by Ms Samootin. 46 The variation to the claims of negligence and breach of fiduciary duty as made before Palmer J, and as made at the hearing before this Court on 4 July 2008 to include an allegation of " financial abuse ", does not now entitle Ms Samootin to again agitate claims previously made. 47 The applications to comment upon or make observations as to orders as to costs made previously against Ms Samootin both by Justices of this Court and of the Supreme Court is also without merit. 48 It is understood that Ms Samootin accepts that this Court has no power or jurisdiction to vary or modify costs orders previously made. Her contention is that, in the event that the bankruptcy is annulled, it would not be inappropriate to make " observations " to the effect that those parties who have previously had costs orders made in their favour should nevertheless be " responsible " for their own costs in those proceedings. Rather than being " appropriate " to make such observations, even had the bankruptcy been annulled, it is considered that it would be highly inappropriate to make any observations as to the manner in which a trial judge, who had knowledge of the facts and circumstances of an individual proceeding, exercised his discretion when making an order as to costs. There is no power or jurisdiction to do so; and, even if there had been any such power or jurisdiction, no " observations " would in any event have been made.