FEDERAL COURT OF AUSTRALIA

Samootin v Official Trustee in Bankruptcy [2008] FCA 914 

ALEXANDRA SAMOOTIN v OFFICIAL TRUSTEE IN BANKRUPTCY

NSD 2199 OF 2007

EMMETT J

30 APRIL 2008

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                          The appellant in this appeal is bankrupt.  The appeal is brought from orders made by a judge of the Court on 19 October 2007.  By those orders, the primary judge dismissed an application brought by the appellant against the Official Trustee in Bankruptcy (the Official Trustee).

2                          The circumstances surrounding the position of the appellant relate to a property at Beacon Hill.  They are not without some complexity.   The appellant, in circumstances which it is not presently necessary to go into, occupied the property and made payments in part satisfaction of a debt secured by a mortgage over the property.  To that extent, the payments were for the benefit of the owner of the property.  The appellant’s right to an accounting in respect of those payments is a chose in action that vested in the Official Trustee upon the bankruptcy of the appellant.  There is presently a proceeding in the Supreme Court of New South Wales in which an account is being taken as between the Official Trustee and the owner of the property (the Supreme Court proceeding). 

3                          Although it is not entirely clear, it appears that the complaint the appellant sought to air, in the application that came before the primary judge in this Court, concerned the conduct of the Supreme Court proceeding by the Official Trustee.  In essence, it is a complaint about the way in which the Official Trustee has acted in relation to an asset of the bankrupt estate.  If the Official Trustee acted in some way improperly in relation to the conduct of the Supreme Court proceeding, it may be that the appellant would have a ground for complaint.

4                          It appears that the application before the primary judge was based on a contention that the Official Trustee had entered into contracts on behalf of the appellant in breach of provisions of the Consumer Credit (New South Wales) Act 1995 (NSW).  The appellant complained that she did not sign any mortgage and that it was therefore not open to the Official Trustee, through his solicitor, to make concessions in relation to the conduct of the Supreme Court proceeding.  In dismissing the application, the primary judge found that the undertaking complained of was in fact given by the appellant, that the Official Trustee did not enter into any contract on behalf of the appellant, and that it could not be suggested that there was any breach of the Consumer Credit Act as contended by the appellant. 

5                          The amended notice of appeal filed in the present proceeding on 3 December 2007 is a long, discursive document that does not address grounds of appeal in a manner that it is easy to understand.  Rather, it is a narrative of facts, which ultimately does not appear to lead to a conclusion that would justify interfering with the decision of the primary judge.  That is not to say that I have formed any view as to whether there is in fact any substance in the complaint that is made by the appellant. 

6                          The matter was listed for callover today.  When the matter was called on, there was no appearance for the appellant.  The respondent, the Official Trustee in Bankruptcy therefore asks that the appeal be dismissed.  A possible explanation for the non‑appearance of the appellant is that yesterday she commenced a fresh proceeding against the Official Trustee, making claims similar to those that she had made in the application that was dismissed by the primary judge.  It may be that it is intended by the appellant that she will pursue that further proceeding at first instance, rather than prosecute the appeal. 

7                          In the circumstances, it seems to me to be appropriate to accede to the application by the respondent that the appeal be dismissed for want of appearance. 

Associate:

Dated:         17 June 2008