Samootin v St George Bank Ltd; Samootin v Deans; Samootin v Shea & Ors [2005] HCATrans 986 (25 November 2005)

--

Samootin v St George Bank Ltd; Samootin v Deans; Samootin v Shea & Ors [2005] HCATrans 986 (25 November 2005)

Last Updated: 25 November 2005

[2005] HCATrans 986

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S428 of 2004

B e t w e e n -

ALEXANDRA SAMOOTIN

Applicant

and

ST GEORGE BANK LIMITED

Respondent

Office of the Registry
Sydney No S429 of 2004

B e t w e e n -

ALEXANDRA SAMOOTIN

Applicant

and

PETER JOHN DEANS

Respondent

Office of the Registry
Sydney No S430 of 2004

B e t w e e n -

ALEXANDRA SAMOOTIN

Applicant

and

CHRISTOPHER GEORGE SHEA

First Respondent

PETER JOHN DEANS

Second Respondent

LOAN DESIGN PTY LTD

Third Respondent

S R DEANS PTY LTD

Fourth Respondent

MS GISELLE M. WAGNER

Fifth Respondent

ADRIAN HOLMES

Sixth Respondent

Office of the Registry
Sydney No S280 of 2005

B e t w e e n -

ALEXANDRA SAMOOTIN

Applicant

and

CHRISTOPHER GEORGE SHEA

First Respondent

PETER JOHN DEANS

Second Respondent

LOAN DESIGN PTY LTD

Third Respondent

S R DEANS PTY LTD

Fourth Respondent

GISELLE MONICA WAGNER

Fifth Respondent

ADRIAN HOLMES

Sixth Respondent

Summonses

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 25 NOVEMBER 2005, AT 9.34 AM

Copyright in the High Court of Australia

MS A. SAMOOTIN appeared in person.

MR S.J. BURCHETT: If the Court pleases, I appear for the respondent in the first of those matters, the St George Bank. (instructed by St George Bank)

MR B.T.G. MUIR: If the Court pleases, I appear for the respondent Deans in S429/2004 and the second, third and fourth respondents in S430/2004 and S280/2005. (instructed by Brian Muir & Company)

MR M. DEMPSEY, SC: If your Honour pleases, I appear for the fifth and sixth respondents, Ms Wagner and Mr Holmes, in S430/2004 and S280/2005. (instructed by Mallesons Stephen Jaques)

IS HONOUR: Ms Samootin, can you tell me what the current state of your application is before Justice Palmer?

MS SAMOOTIN: The current state of the application before Justice Palmer is – I will just have a quick look at my notes, your Honour, if you do not mind if I sit down?

HIS HONOUR: Yes.

MS SAMOOTIN: Thank you. I have it written down in my submissions that were filed on 16 November, your Honour, page 11, paragraph – I am sorry, page 23, paragraph 190. “The Proceedings as they are in the Equity Division, Supreme Court, 1973/01” is the heading.

HIS HONOUR: Have you a date yet?

MS SAMOOTIN: No, we have not. We cannot – I will just read out exactly what I have here. The proceedings are still ongoing in the Equity Division, Supreme Court, 1973 of 2001 in regards to the accounting processes. On 24.6.2004, Justice Palmer gave Order 5f):

what amounts have been paid in reduction in principal - - -

HIS HONOUR: I am sorry, what date was that?

MS SAMOOTIN: On 24 June 2004.

HIS HONOUR: Thank you.

MS SAMOOTIN: Justice Palmer gave order 5f):

what amounts have been paid in reduction in principal and interest under any mortgage taken out to finance the Acquisition Costs of the said properties and by whom have such payments been made.

On 13 September 2005, Justice Campbell in the Equity Division, Supreme Court in the same matter, 1973 of 2001, in regards to it Justice Palmer, order 5f), gave orders to the first and second respondents. The first respondent has complied with Justice Campbell’s orders. The second respondent has not complied with Justice Campbell’s orders. The second respondent had claimed that he was paying the mortgage for the two properties, 24 and 26 Oxford Falls Road, Beacon Hill.

In short, the second respondent was to provide to the court his financial records showing his tax payments of the mortgage. This he has not done so. The second respondent’s income tax earnings show that he did not have the financial capacity to pay the mortgage, and I have details of that in my affidavit that was filed in the Equity Division, Supreme Court, 1973/01, and I have that on the file before you, your Honour.

HIS HONOUR: Yes, I see that.

MS SAMOOTIN: In this affidavit I had listed the financial details of the second respondent concerning his personal income which is below $13,605. The mortgage payments equate to $23,000 per annum. That is just an estimate.

HIS HONOUR: Yes, thank you.

MS SAMOOTIN: On 30 November there is - - -

HIS HONOUR: Yes, there is no need to go any further, I think.

MS SAMOOTIN: Yes.

HIS HONOUR: Now, you have a summons in these various applications in this Court. The first relief you seek is that the matters be joined. In that respect, applications S518 and S519 were dismissed in this Court on 8 September 2005, so they have to be taken out. That leaves S428, S429, S430 of 2004 and S280 of 2005. I will hear what your opponents say, but in respect of those I would order that those applications proceed together in this Court for determination by the same panel of Justices. Is there any disagreement with that? It seems sensible.

MR BURCHETT: Your Honour, does that dictate that they all be determined at the same time because they are all in different stages of process at the moment?

HIS HONOUR: They will not be listed until they are ready to be listed and when they are listed they will all be determined together. It is in the interests of the Court not to have three panels looking at this.

MR BURCHETT: No opposition.

HIS HONOUR: Yes. So I will say when they are ready for determination applications S428 of 2004, S429 of 2004, S430 of 2004 and S280 of 2005 proceed together for determination by the same panel of Justices.

The second matter in the summons concerns, in effect, a delay here until this further application is sorted out in the Supreme Court. Ms Samootin, you have a bit of a problem with some of these applications because they are already out of time, you know, and you need an extension of time for some of them. What I propose is that the above applications – I will start again. The preparation of the above applications proceed but that they not be listed for hearing or other determination before – I will have to fix a date because otherwise things will drift – 3 April 2006.

MR BURCHETT: I am sorry, your Honour, is there a date in April - - -

HIS HONOUR: Yes, 3 April 2006. Is there any dissent from that? I think that is the best way of dealing with it. You are already delayed, Ms Samootin, and we cannot delay things permanently.

MS SAMOOTIN: I understand that, your Honour, but I am having great difficulty with Mr Deans producing those documents because the mortgage payments become part of the family property settlement.

HIS HONOUR: I understand all of that. I am just trying to get the process right in this Court.

MS SAMOOTIN: Yes. I hope you understand it is not me that is delaying the processes because I have - - -

HIS HONOUR: I understand that. Yes.

MR DEMPSEY: The stay application was based on an application - - -

HIS HONOUR: You cannot have – we do not stay our own processes.

MR DEMPSEY: But the Court of Appeal has dismissed the application that was the basis of Ms Samootin’s stay application on 17 November. I just wished to draw that to the Court’s attention. That was the only new application on which she relied for the purpose of a stay. So if that is a
matter that your Honour is taking into account in deferring the matter to April, it is not necessary to do so.

HIS HONOUR: Well, there is a debate about that. Costs of the summonses be costs of the leave application.

MS SAMOOTIN: Another thing, your Honour, I put in further submissions on 23 - - -

HIS HONOUR: I am just dealing with the summons.

MS SAMOOTIN: Okay. So I will put in a fresh summons about that?

HIS HONOUR: Yes.

MS SAMOOTIN: Thank you, your Honour.

HIS HONOUR: In respect of each of the summonses that is before the Court I order:

1. When they are ready for determination applications S428 of 2004, S429 of 2004, S430 of 2004 and S280 of 2005 proceed together for determination by the same panel of Justices.

2. The preparation of the above applications proceed but they not before 3 April 2006 be listed for hearing or other determination.

3. Costs of each of the summons be costs in the leave application.

MR BURCHETT: Your Honour, just a direction consequential on the first of those orders I would ask and that is that we be served with at least some indication of what the nature of each of the other applications is. If they have to be heard together before the same panel, one assumes that there may be some reference in, for instance, our application, to whatever has been raised in any of the other applications.

HIS HONOUR: Yes.

MR BURCHETT: I am trying to avoid being buried in all the various submissions but perhaps simply the actual argument.

HIS HONOUR: Yes. Can there not be some arrangement between you and Mr Dempsey? I think that might be the quickest way of doing it.

MR DEMPSEY: We are party to every one of them except - - -

HIS HONOUR: He is on the end of everything.

MR DEMPSEY: Except one.

HIS HONOUR: Which is the one?

MR DEMPSEY: We are not party to S428 of 2004.

MR BURCHETT: That is ours.

MR DEMPSEY: We are not party to S429 of 2004 which relates to an apprehended violence order. So I have no documents in relation to that matter but I can share with Mr Burchett – if he gives me the documents he has in S428 we can oblige in respect of S430 and S280.

HIS HONOUR: Right. That should solve the problem, should it not? S429 sounds very disparate.

MR DEMPSEY: It is.

HIS HONOUR: All right. I make those orders then as indicated. I will now adjourn.

AT 9.48 AM THE MATTERS WERE ADJOURNED