Samootin v Shea & Ors [2005] NSWCA 398

New South Wales Court of Appeal

CITATION: Samootin v Shea & Ors [2005] NSWCA 398

HEARING DATE(S): On written submissions

JUDGMENT DATE: 17 November 2005

JUDGMENT OF: Giles JA; Bryson JA

DECISION: Notice of motion dismissed with costs.

CATCHWORDS: Application for leave to appeal - reopening application - assertion of fresh evidence of fraud - evidence would have been available at first instance - would not have brought a different result - reopening refused.

Alexandra Samootin - Claimant Christopher George Shea - First Opponent Peter John Deans - Second Opponent PARTIES: Loan Design Pty Ltd - Third Opponent S R Deans Pty Ltd - Fourth Opponent Giselle M Wagner - Fifth Opponent Adrian Holmes - Sixth Opponent

FILE NUMBER(S): CA 40603/04

COUNSEL: On written submissions

Claimant - self represented SOLICITORS: Brian Muir & Company - Second to Fourth Opponents Mallesons Stephen Jaques - Fifth and Sixth Opponents

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): ED 1973/01

LOWER COURT JUDICIAL OFFICER: Palmer J

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40603/04 ED 1973/01

GILES JA BRYSON JA

Thursday 17 November 2005 Alexandra SAMOOTIN v Christopher George SHEA & Ors Judgment 1 THE COURT: On 16 May 2005 we heard an application for leave to appeal against orders made by Palmer J on 28 June 2004. For reasons then given, we ordered that the summons for leave to appeal be dismissed with costs. 2 By an amended notice of motion filed on 10 October 2005, the original of which was filed on 14 September 2005, the claimant applied for leave - " … to re-open the case 40603/04 pursuant to Justice Bryson and Justice Giles judgment, 16.5.05, paragraph 26; and/or Supreme Court Procedure (NSW) Part 20, rule 20.1.7. Setting aside judgment for fraud, due to discovery of fresh evidence ". 3 The application was supported by affidavits of the claimant sworn on 14 September 2005, 7 October 2005 (two affidavits) and 25 October 2005 (much of the affidavits being by way of submissions), an affidavit of Keith Lawrence Phillips sworn 6 October 2005, and other affidavits and materials as annexures to the claimant's affidavits. The claimant filed written submissions on 14 September 2005, amended and further written submissions on 14 October 2005 and further written submissions on 25 October 2005. Filed in response to the application were affidavits of Christopher George Shea sworn 19 October 2005 and Judy Anne Reid sworn 24 October 2005 and submissions on behalf of the fifth and sixth opponents. 4 At a directions hearing on 10 October 2005 the Registrar stated that the notice of motion would be referred to the Court for consideration in chambers. We take the parties to have concurred in that course. 5 In the reasons of Bryson JA on 16 May 2005, with which Giles JA agreed, it was said in para [25] that the application for leave to appeal in substance, although not in form, renewed an earlier application for leave to appeal made before the Court of Appeal on 3 June 2004. The reasons included, in para [26] - "26. However it is not proper to re-open consideration of what in substance was considered on the earlier appeal and application for leave to appeal: with such applications, as with other interlocutory applications, there ought to be some substantial new ground or circumstance warranting re-consideration before the power to give renewed interlocutory consideration is exercised." 6 In her affidavits and submissions the claimant substantially traverses once more the bases for leave to appeal put to this Court on 3 June 2004 and before us on 16 May 2005. She propounds that she has fresh evidence of fraud practiced upon her, particularly in relation to when the property 24 Oxford Falls Road, Beacon Hill was purchased and the circumstances of an attendance upon the solicitor Ms Wagner and the exchange of contracts for the purchase of 26 Oxford Falls Road, Beacon Hill. 7 The evidence on which the claimant seeks to rely in these respects would have been available for the hearing before Palmer J, but more important we do not think that there is any prospect that, if put before the Court in an appeal, it would bring about a different result. Having considered all the materials and the submissions on which the claimant relies to re-open her application for leave to appeal, we consider that no basis has been shown for reopening and that it remains that leave to appeal should be refused. 8 The notice of motion is dismissed with costs. **********