Samootin v Shea and Ors (No 2) [2003] NSWSC 695

New South Wales Supreme Court

CITATION : Samootin v Shea and Ors (No 2) [2003] NSWSC 695 HEARING DATE(S) : 14 to 18, and 21 & 22 July, 2003 JUDGMENT DATE : 1 August 2003 JURISDICTION: Equity Division JUDGMENT OF : Palmer J DECISION : Judgment for the Defendants on the Plaintiff's claims; Cross Claimants entitled to declarations and an enquiry.

CATCHWORDS : RESULTING TRUST - Plaintiff claimed that her share of the proceeds of sale of the jointly owned property had been used in the purchase of other properties in the name of one of the Defendants alone, without her knowledge and consent. HELD: The Plaintiff had understood and agreed to the transactions - the other parties had never disputed the Plaintiff's entitlement to an interest in the properties - the Plaintiff was not entitled to the further relief which she claimed. SOLICITORS - NEGLIGENCE - FIDUCIARY DUTY - The Plaintiff claimed that the solicitor acting on the sale of the jointly owned property had applied the Plaintiff's share of the proceeds of sale to the purchase of other properties in the name of one of the Defendants alone, contrary to instructions, negligently and in breach of fiduciary duty. HELD: In carrying out the transactions, the solicitor had acted in accordance with the Plaintiff's express instructions. - Supreme Court Act 1970 (NSW) - s.84(2) LEGISLATION CITED : - Trade Practices Act 1974 (Cth) - s.51AA, s.51AC, s.52, s.82(1), s.82(2) - Trade Practices Amendment Act (No 1) 2001 (Cth) - Schedule 1, Item 21 Alexandra Samootin - Plaintiff Christopher George Shea - First Defendant Peter John Deans - Second Defendant PARTIES : Loan Design Pty Limited - Third Defendant S.R. Deans Pty Limited - Fourth Defendant Giselle M. Wagner t/a Northern Beaches Legal Service - Fifth Defendant Adrian Philip Holmes - Sixth Defendant FILE NUMBER(S) : SC 1973/01 In person - Plaintiff COUNSEL : In person - First Defendant M. Tzannes - Second to Fourth Defendants G. Curtin - Fifth and Sixth Defendants In person - Plaintiff SOLICITORS : In person - First Defendant Brian Muir & Co - Second to Fourth Defendants Mallesons Stephen Jaques - Fifth and Sixth Defendants