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[2025] NSWSC 1047
General information, not legal advice.
Supreme Court of NSW
2025-09-12
Cavanagh J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Aslan v Pucci (No 4) [2025] NSWSC 1047
Hearing dates: 10 September 2025
Date of orders: 10 September 2025
Decision date: 12 September 2025
Jurisdiction: Common Law
Before: Cavanagh J
Decision: (1) The proceedings against the tenth and fifteenth defendants are dismissed pursuant to UCPR r 13.4(1)(b).
(2) Grant liberty to apply to the tenth defendant on three days’ notice on the question of costs.
Catchwords: CIVIL PROCEDURE – striking out and dismissal – application by the tenth and fifteenth defendants to dismiss the proceedings pursuant to UCPR r 13.4(1)(b) or alternatively have the proceedings struck out pursuant to UCPR r 14.28 – no reasonable cause of action disclosed – proceedings dismissed
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1)(b), 14.28
Cases Cited: Aslan v Pucci (No 3) [2025] NSWSC 1027
Texts Cited: Nil
Category: Procedural rulings
Parties: Dina Aslan (Plaintiff)
Enrico Pucci (First Defendant)
Ross Pucci (Second Defendant)
Alfredo Pucci (Third Defendant)
Nicholas Tropea (Fourth Defendant)
Causbrook & Associates (Fifth Defendant)
Alfred Dean Pucci (Sixth Defendant)
Narghiza Ergashova (Seventh Defendant)
Shirina Holmatova (Ninth Defendant)
Patricia Ficarra (Tenth Defendant)
Campion Realty Pty Limited t/as Unique Property Inner West (Fifteenth Defendant)
Integrated Programmed Services Pty Ltd (Sixteenth Defendant)
Representation: Counsel:
C Robertson (Tenth Defendant)
Solicitors:
Plaintiff (self-represented)
Stewart & Associates (First, Second, Third, Sixth, and Sixteenth Defendants)
Wotton Kearney (Fourth Defendant)
Hunt & Hunt Lawyers (Tenth Defendant)
H Dias (self-represented as prior director of the Fifteenth Defendant)
File Number(s): 2025/186499
Publication restriction: Nil
Before me today are three motions being:
A motion filed on behalf of the Pucci defendants, specifically the second and third defendants, on 21 August 2025 seeking an increase in the amount which the Pucci defendants could pay for legal expenses from the original sum of $50,000 to $200,000.
A motion filed by the tenth defendant on 29 August 2025 seeking orders that the tenth defendant be removed from the proceedings or that the proceedings be dismissed pursuant to UCPR r 13.4 or alternatively struck out pursuant to UCPR r 14.28.
A similar motion filed by the fifteenth defendant (being the real estate agency of which the tenth defendant is a director) filed on 4 September 2025 seeking similar orders to the tenth defendant.
The motion filed on behalf of the Pucci defendants was originally listed before me on 27 August 2025 but was stood over until today for the purposes of allowing the solicitor for the Pucci defendants to adduce further evidence as to his fees and payment of fees.
Subsequent to 27 August 2025 the solicitor for the Pucci defendants, Andrew Stewart, filed an affidavit dated 9 September 2025. In that affidavit he confirms that invoices have been sent but they have not been paid in full. Payments have been made by Rosario Pucci, Enrico Pucci and Narghiza Ergashova, albeit she is no longer represented by his firm.
He says his costs agreement is with Rosario Pucci and Integrated Programmed Services, the sixteenth defendant. He says he will likely have a further costs agreement with all of the Pucci defendants.
When that motion came on for hearing today I indicated to Mr Stewart that his affidavit did not deal with the matters to which I earlier referred, that is it does not annex any costs agreement, does not annex any accounts and does not evidence any payments. I indicated that in those circumstances he may be better advised to adduce further evidence in support of his application.
In the circumstances, Mr Stewart indicated that he did not wish to proceed with the application today and he would seek to pursue the application at a later time. Thus, it is not necessary that I say anything further about that application.
The other two applications are to the same effect. The tenth defendant, who is sued personally, remains a director of the fifteenth defendant, Campion Realty Pty Limited. She is present in Court today. The tenth defendant is represented by solicitors and Ms Robertson of counsel.
The fifteenth defendant, being Campion Realty Pty Limited, is not legally represented but one of the other directors, Mr Dias, appears and I have granted him leave to appear to represent the interests of the company. Another director, Berta Dias, is also in Court. Proceedings against her have previously been dismissed.
Bearing in mind that the allegations against the fifteenth defendant essentially involve the conduct of its directors and in particular the tenth defendant, it must be that, whatever the result of the tenth defendant’s motion, the same result would follow as against the fifteenth defendant.
I will thus deal primarily with the application by the tenth defendant although Mr Dias made submissions on behalf of the fifteenth defendant. They were to the same effect.
In support of her application, the tenth defendant relies on her affidavits of 22 August 2025 and 9 September 2025, as well as the affidavit of Narghiza Ergashova, being the seventh defendant dated 10 September 2025. I received helpful written and oral submissions from Ms Robertson.
The plaintiff opposes the orders sought in the application. She relies on her affidavits of 11 July 2025 and 8 September 2025, albeit the original affidavit 11 July 2025 merely sets the background to the current application. The affidavit of 11 July 2025 was prepared by the plaintiff in support of her earlier application for freezing orders.
The substance of the plaintiff’s evidence is set out in her affidavit of 8 September 2025. The plaintiff also provided written submissions dated 10 September 2025 and made oral submissions.
Consistent with the way I have approached the issues arising in these proceedings in the past, I asked the plaintiff to articulate the case she pursued against the tenth and fifteenth defendants.
As I have indicated in the past, the plaintiff is an intelligent and articulate woman and she was able to articulate the case she wishes to pursue against the tenth and fifteenth defendants.
I will not reiterate everything I have said in my earlier three judgments in this matter. As is apparent, these proceedings arise from what the plaintiff alleges was a conspiracy by the Pucci defendants and other defendants to defraud her of a substantial sum, being the amount of $490,000 which she paid to the first defendant during the course of a romantic relationship.
The moment that money was paid, the relationship was terminated. The money was never repaid and the first defendant entered bankruptcy. She has already obtained a judgment against the first defendant in the District Court based on a debt recovery/contract claim.
She now pursues all of the defendants, originally 16, either based on the tort of conspiracy or based on what she said is identity theft.
The case against the tenth and fifteenth defendants is set out in paragraphs 156-162 of the Amended Statement of Claim filed on 26 August 2025, albeit the plaintiff articulated a somewhat wider claim today.
As pleaded, the plaintiff asserts that the tenth and eleventh defendants being directors and employees of the fifteenth defendant engaged in transactions with multiple members of the Pucci syndicate.
She asserts that these defendants are joined to the proceedings on the basis that they knowingly participated in a fraudulent conspiracy to misappropriate her personal identity and information and fabricate tenancy agreements for unlawful financial gain.
It is alleged that the tenth and eleventh defendants (again noting that the proceedings have already been dismissed against the eleventh defendant) participated in fabrication of one or more residential tenancy agreements, falsely purporting to bear the plaintiff’s name and signature.
She says these agreements were created without her knowledge and were used as false instruments to project fictitious rental income for the purpose of misleading lenders, supporting three fraudulent loan applications and to channel or launder the first defendant’s cash to the third defendant.
It is not necessary that I further detail her allegations except that she pleads that the conduct of the defendants amounted to serious civil and criminal breaches including identity fraud under s 192J of the Crimes Act 1900 (NSW), conspiracy to defraud, altering false instruments and participating in organised financial crime.
She says (in paragraph 162) that she has suffered reputational harm, legal risk and distress and has been subject to numerous legal consequences including defending herself in respect of various proceedings and claims pursued by the Pucci defendants.
It is not suggested that the tenth, eleventh or fifteenth defendants have personally pursued her in respect of any of these claims.
In her oral submissions today, the plaintiff articulated a somewhat broader claim against the tenth and fifteenth defendants to include them in the wider tort of conspiracy which she pleads against the Pucci defendants and other defendants.
That is, it was suggested that the conduct of the tenth and fifteenth defendants in engaging in fraud and identity theft allowed the first defendant to channel money which she says was part of the money she lent to the first defendant away from her.
In her affidavits, the plaintiff sets out the basis of her claims and suspicions about the conduct of the tenth and fifteenth defendants but, as she articulated, the basis of her allegations as to the criminal and fraudulent conduct of the tenth and fifteenth defendants is really that I should infer such fraudulent and criminal intent from a series of actions or professional misconduct said to have been committed by the defendants. Those actions are said to be so contrary to their ethical and legal obligations that it must be that they were in some way assisting the Pucci defendants in the wider conspiracy.
In particular the plaintiff identifies the following alleged failures of the tenth and fifteenth defendants:
The failure to properly disclose information to her.
The hiding of the tenancy agreements by not putting the tenancy agreement on the whiteboard in their office.
The failure to charge agency fees to the landlord.
The attempts by the eleventh defendant to keep this arrangement away from the business.
The correction of what is said to be a typographical error, that is the change of the name of the landlord from Alfred to Alfredo, and the failure to inform her of such a change.
The continued evasiveness of the tenth defendant in dealing with her.
The failure to provide the plaintiff with a copy of the relevant documentation.
The failure to report the fraud (once discovered) by the Pucci defendants to Fair Trading.
All of these matters are said to be behaviour which is contrary to the legal and ethical obligations of the real estate agency and, on the plaintiff’s case, there is only one inference to be drawn, that is that they were part of the broader conspiracy, and indeed, they were using this false tenancy agreement as a means of permitting the first defendant to engage in money laundering or they were engaged in money laundering themselves.
Plainly, these are serious allegations. It is not my function on this application to determine the facts but it is plain that the allegations are of such a serious nature that a very high burden will be placed on the plaintiff in terms of adducing evidence to support these allegations should this matter proceed to a hearing.
The tenth defendant says in response that she was just acting as a real estate agent. She refers to conversations had with Ross Pucci. As far as she was aware, the tenancy agreement was a genuine arrangement.
She says the change from Alfred to Alfredo was an inadvertent typographical error on her part and she corrected it. She disputes that there was any fabrication of a tenancy agreement or identity theft.
She does not accept that the change of names created a second residential tenancy agreement and that in some way the plaintiff’s identity was being misused.
She says that the agency agreement was terminated by mutual agreement, and she received instructions from Ross Pucci to do so.
She also says that she received the plaintiff’s driver’s licence and passport in early October 2020 and that she had no knowledge that she was not supposed to have these documents.
As I have indicated, the defendants seek orders in the alternative.
Firstly, they seek to have the proceedings dismissed on the basis that the Amended Statement of Claim does not disclose any cause of action or is otherwise untenable or doomed to fail.
In the alternative, they seek to have the Amended Statement of Claim struck out on the basis that it is deficient that the plaintiff fails to properly plead matters of fact. In particular the tenth defendant submits that serious allegations such as fraud and conspiracy should not be lightly made and they need to be properly pleaded and particularised.
To the extent the plaintiff wishes to assert that the defendants were part of the wider conspiracy, it would be necessary to plead material facts such as the nature of the agreement, the persons involved in the agreement and what acts were carried out with a view to causing her damage. Again, I have already referred to the relevant principles in my earlier judgment: see Aslan v Pucci (No 3) [2025] NSWSC 1027.
As I have endeavoured to explain to the plaintiff on earlier occasions, it is necessary not only to properly plead but it is also important that there be some proper basis for the allegations she makes.
Again, one of the difficulties the plaintiff faces in what I will call her wider claims, that is, not the claims against the Pucci defendants but in her claim that other persons were part of the conspiracy or engaged in identity theft, is the identification of loss.
The loss that she identifies as against the tenth and fifteenth defendants is set out in paragraph 162. She says that she suffered reputational harm, legal risk and distress and has been subject to numerous legal consequences.
I understand that by legal consequences she means the claims which have been regularly made against her by the Pucci defendants.
However, in the relief claimed she merely claims the amount that she lent the first defendant, an additional $8,200 she gave to the first defendant, interest, and then aggravated and exemplary damages in the sum of $1.5 million.
None of those losses could be referrable to the conduct of the tenth and fifteenth defendants. Indeed, she does not plead that they are. She did say on the hearing today that the conduct of the tenth and fifteenth defendants did in some way cause her loss by allowing the first defendant to channel some funds back to the real estate agency, but that proposition is entirely speculative.
In my view the case being pursued by the plaintiff against the tenth and fifteenth defendants is doomed to fail essentially for the same reason that the cases being pursued against the other defendants against whom the proceedings have been dismissed already were doomed to fail.
They are doomed to fail because, even assuming the accuracy of what the plaintiff asserts at this time, none of which she asserts gives rise to any cause of action against the tenth and fifteenth defendants.
I say this for the following reasons.
Firstly, it is drawing a very long bow to suggest that (if it be so), because the tenth and fifteenth defendants have engaged in conduct which breached their legal and ethical obligations, the only inference is that they have been engaged in fraudulent or criminal conduct.
I make no finding on whether the tenth and fifteenth defendants have been engaged in the asserted conduct in breach of their ethical and legal obligations. I am not required to do so at this time. I will assume for the purposes of this application the accuracy of what the plaintiff says about their conduct.
However, that conduct does not and could not lead to any inference that they were engaged in some sort of wider conspiracy with the Pucci defendants or that they were engaged in identity theft.
Accordingly, the very basis on which the plaintiff proceeds against the tenth and fifteenth defendants (being that I would infer fraudulent and criminal conduct against them) could not possibly be established.
Secondly, there is no pleading against the tenth and fifteenth defendants that they were engaged in the wider conspiracy. The pleading is limited to a claim of identity theft. The plaintiff has today and on earlier occasions been unable to identify how this alleged identity theft caused or contributed to the loss to which she asserts in the Amended Statement of Claim.
She may be aggrieved by what she describes as identity theft. It may have caused her distress. It may have induced the Pucci defendants to do certain things, but there is no evidence on this application and nor could there be any evidence at a later time that the alleged identity theft has caused the losses of which the plaintiff complains in her Amended Statement of Claim.
Further, even leaving aside that pleading point, the plaintiff has been unable to identify any losses other than what she describes as distress and reputational and legal risk.
In the circumstances I am satisfied that the case which is pleaded against the tenth and fifteenth defendants as set out in paragraphs 156-162 of the Amended Statement of Claim is doomed to fail. It is untenable. Even assuming the accuracy of her allegations, it could not give rise to a cause of action because the plaintiff has not suffered the losses which she maintains arising from such conduct.
Again, it is not my function today to make any findings about the particular conduct complained of. It is my task today to deal with the applications pursued by the tenth and fifteenth defendants.
In circumstances in which I accept the case is doomed to fail, the proceedings must be dismissed.
I thus order that the proceedings against the tenth and fifteenth defendants are dismissed pursuant to UCPR r 13.4(1)(b).
As requested on behalf of the tenth defendant, I grant liberty to apply on three days’ notice on the question of costs.
**********
Order 2 added.
Aslan
Pucci