Samootin v Shea [2007] NSWSC 785

Samootin v Shea [2007] NSWSC 785

The second cross claim had to be terminated because Ms Samootin was an undischarged bankrupt when it was commenced, and the property and rights the cross claim sought to assert had vested in her trustee in bankruptcy, who did not join or participate in the cross claim. The cross claim was therefore hopeless and without prospect of success.

Jurisdiction
Australia
Judgment Date
06 July 2007
Procedural Posture
Equity Proceeding Involving a Second Cross Claim / Application by the 5th and 6th Cross Defendants for Summary Termination of the Second Cross Claim
Outcome
Cross claim summarily dismissed.
Legal Topics
['summary Disposal' 'cross Claims' 'undischarged Bankrupt' 'vesting of Property in Trustee in Bankruptcy' 'leave and Time for Filing Cross Claim' 'finality of Litigation']
['civil Procedure' 'bankruptcy' 'equity'] ['summary Disposal' 'cross Claims' 'undischarged Bankrupt' 'vesting of Property in Trustee in Bankruptcy' 'leave and Time for Filing Cross Claim' 'finality of Litigation']

Case Brief

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Procedural Posture

Equity Proceeding Involving a Second Cross Claim / Application by the 5th and 6th Cross Defendants for Summary Termination of the Second Cross Claim

Legal Issues

  1. 1 ['Whether the second cross claim should be summarily dismissed because the cross claimant was an undischarged bankrupt and the property rights alleged were vested in her trustee in bankruptcy.' 'Whether the second cross claim was filed without necessary leave or outside the time permitted by the Uniform Civil Procedure Rules 2005.' 'Whether doctrines of res judicata, issue estoppel and Anshun estoppel would prevent reagitation of matters raised in the second cross claim.']

Ratio Decidendi

The second cross claim had to be terminated because Ms Samootin was an undischarged bankrupt when it was commenced, and the property and rights the cross claim sought to assert had vested in her trustee in bankruptcy, who did not join or participate in the cross claim. The cross claim was therefore hopeless and without prospect of success.

Court Disposition

Cross claim summarily dismissed.

Orders

  • ['The statement of cross claim is struck out and the second cross claim is summarily dismissed.' 'Alexandra Samootin as cross claimant in the second cross claim is to pay the costs of that cross claim of the cross defendants to that cross claim on the indemnity basis.' 'In relation to the first cross claim, the...