Aslan v Pucci (No 5)

Catchwords: CIVIL PROCEDURE – striking out and dismissal – proceedings previously dismissed against the tenth and fifteenth defendants pursuant to UCPR r 13.4(1)(b) – plaintiff seeks to set aside that order dismissing proceedings pursuant to UCPR r 36.15 – plaintiff alleges evidence relied upon by the defendants was fraudulent – dismissal of plaintiff’s motion
COSTS – Party/Party – self represented litigant – application by tenth defendant for a gross sum costs order – costs order made with 40 percent discount

Legislation Cited: Civil Procedure Act 2005 (NSW), s 98(4)(c)
Uniform Civil Procedure Rules 2005 (NSW), r 36.15

Cases Cited: Aslan v Pucci (No 4) [2025] NSWSC 1047
Hamod v New South Wales [2011] NSWSC 375
Wilkie v Brown [2016] NSWCA 128

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)
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)

File Number(s): 2025/186499

Publication restriction: Nil

REVISED EX TEMPORE JUDGMENT

1. This matter comes before me today for the hearing of two applications.

2. Pursuant to a motion filed on 10 November 2025, the tenth defendant seeks an order that the costs be paid by the plaintiff on a gross sum basis. The costs to which the tenth defendant is referring are the costs that I ordered the plaintiff to pay in my judgment of 10 September 2025 (Aslan v Pucci (No 4) [2025] NSWSC 1047).

3. The second application, which to a certain extent is responsive to the tenth defendant’s application, is brought by the plaintiff. Pursuant to a motion dated 14 November 2025, the plaintiff seeks a number of orders all to the same effect, being that I should strike out or disregard the earlier evidence of the tenth and fifteenth defendants (that is, the evidence on the tenth defendant’s application for dismissal) and that I should set aside the earlier orders I made dismissing the case against the tenth and fifteenth defendants.

4. I will deal with the plaintiff’s application firstly because, if the plaintiff succeeds in her application, the earlier orders I made about costs will be set aside.

5. In support of her application, the plaintiff relies on her own affidavit of 14 November 2025. In that affidavit, she asserts that the earlier orders made dismissing the case against the tenth and fifteenth defendants were made on the basis of materially false and misleading affidavit evidence filed by both the tenth and fifteenth defendants. Exhibited to the plaintiff’s affidavit are documents which purport to be emails from Berta Diaz dated 31 October 2025 and a copy of some bank statements provided to the plaintiff subsequent to 10 September 2025.

6. I once again observe that the plaintiff is representing herself and, whilst the basis of her application to set aside my earlier orders was not properly articulated in the notice of motion, doing the best I can and having regard to the written and oral submissions filed by the plaintiff, I take it that the plaintiff is asserting that the tenth and fifteenth defendants were engaged in fraud in providing evidence in support of the earlier applications pursued by the tenth and fifteenth defendants. That is, the plaintiff seeks to rely on evidence not available to her in September 2025, which she has now obtained for the purposes of setting aside the earlier orders.

7. I thus take this to be an application under r 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

8. As set out in r 36.15, a judgment or order of the Court may, on sufficient cause being shown, be set aside by order of the Court, if the judgment was given or entered or the order was made irregularly, illegally or against good faith. I understand the plaintiff to be asserting that the tenth defendant adduced evidence which was fraudulent in support of her earlier application and that, in those circumstances, I should set aside the orders and allow the plaintiff to continue with her case against the tenth and fifteenth defendants.

9. The plaintiff also submitted that she was only provided with submissions or other documents shortly before the last hearing and did not have a proper opportunity to prepare or deal with the documents relied upon by the tenth defendant.

10. However, no application was made for an adjournment on the last occasion. It is now too late for the plaintiff to be asserting that she needed more time to deal with the matters raised on the hearing on 10 September 2025.

11. As is well known, the Court has power to set aside a judgment obtained not in good faith, which would include a judgment obtained through fraud. The point raised by the plaintiff is that, having regard to the documents she has obtained subsequent to 10 September 2025, the tenth defendant’s earlier statement about receipt of monies dealing with the lease should be viewed as false. The plaintiff says that having regard to the bank statements, it is clear that it was the first defendant who paid money allegedly paid by her.

12. Similarly, she says that the tenth defendant’s suggestion that the entries in the trust account ledger were merely populated from the bank account statements cannot be right. This is because, according to the documents now provided by the plaintiff, there was nothing which would suggest that she paid the monies payable under the lease.

13. She may be right about that. The documents do not support the proposition that the real estate agency was receiving money from her.

14. However, the circumstances in which a judgment of the Court may be set aside are limited. Judgments of the Court are normally considered to be final. Should a party be aggrieved by a Court judgment, that party may appeal to the Court of Appeal.

15. I am obviously not suggesting that occur in this case, but that is always a matter for the party aggrieved by a judgment of the Court.

16. Yet, the Court does have power to set aside its own judgments. That power arises in the circumstances of this case under r 36.15. The plaintiff submits that in circumstances in which she has adduced evidence of fraud on the part of the tenth defendant, I should set aside the earlier orders dismissing the proceedings and allow her to proceed with the case against the tenth and fifteenth defendants.

17. The problem with that submission is that, as I said in my judgment of 10 September 2025, I have already assumed (for the purposes of the earlier application) that which the plaintiff asserts, being that the tenth and fifteenth defendants were involved in some fraudulent activity.

18. In particular, I refer to this at [22]-[30] of my judgment of 10 September 2025. Further, at [52] I stated that, “I will assume for the purposes of this application the accuracy of what the plaintiff says about their conduct” meaning the conduct in particular of the tenth and fifteenth defendants.

19. The evidence adduced by the plaintiff today is to the same effect, that is, to the effect that the tenth and fifteenth defendants have been engaged in fraudulent conduct, with the purpose of inducing her to lend the money to the Puccis or for the purposes of identity theft.

20. In the circumstances, although r 36.15 may allow a judgment to be set aside when it has been induced by fraud, r 36.15 does not assist the plaintiff in the particular circumstances of this matter.

21. Adducing further evidence that the tenth defendant was engaged in fraud (if that be so, and I am not making any finding to that effect) does not provide a basis for setting aside the judgment.

22. Further, as I say at [55] of my judgment of 10 September 2025, there is no pleading against the tenth and fifteenth defendants that they were engaged in the wider conspiracy.

23. In oral submissions today, the plaintiff indicated that she was pursuing such a case. However, that is not evident from the statement of claim and one of the grounds on which I dismissed the case is that involvement of the tenth defendant was not pleaded despite the plaintiff already being given an opportunity to re-plead her case by way of an amended statement of claim.

24. In the circumstances, the application pursued by the plaintiff to set aside the orders I made against the tenth and fifteenth defendants on 10 September 2025 must be dismissed.

25. The second application is pursued by the tenth defendant. The tenth defendant seeks an order for a lump sum costs order.

26. I received written submissions from the tenth defendant in support of the application. The tenth defendant relies on the affidavit of Jeremy Dylan Bodon, dated 10 November 2025. Mr Bodon is a solicitor and employee of the solicitors for the tenth defendant. Annexed to Mr Bodon’s affidavit are copies of the invoices from his firm as well as the invoices of Ms Robertson of counsel.

27. The tenth defendant is not insured. She has paid all of the fees so far. She submits that in circumstances of the difficulties dealing with a self-represented person and having regard to the complexities of the matter, it would be appropriate that a lump sum cost order be made.

28. In accordance with s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the Court may may make a gross sum costs order.

29. The principles which should be applied were set out by Beazley P in Hamod v New South Wales [2011] NSWSC 375 at [813]-[820]:

“I have already set out the relevant provisions of s 98. The discretion thereby conferred upon the court is not confined and may be exercised whenever the circumstances warrant its exercise, having regard to the scope and purpose of the provision: Harrison & Anor v Schipp [2002] NSWCA 213; 54 NSWLR 738 per Giles JA at [21]-[22]. In Harrison v Schipp, Giles JA considered that the discretion in s 98(4) may be exercised where the assessment of costs would be protracted and expensive and, in particular, if it appeared that a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment. However, his Honour stated, at [22]:

‘The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available.’

[814] See also Wentworth v Wentworth (Court of Appeal, 21 February 1996, unreported). The courts have typically applied a discount in assessing costs on a gross sum basis: *Ritchie’*s Uniform Civil Procedure NSW , LexisNexis, Sydney, 2005 to date, ‘Civil Procedure Act’, at [s 98.65]; Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629; Sony Entertainment (Aust) Ltd v Smith (2005) 215 ALR 788; Idoport Pty Ltd v National Australia Bank Ltd ; Lorenzato v Lorenzato & Anor (No 2) [ 2011] NSWSC 790 per Black J.

[815] In Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; 135 ALR 160, von Doussa J noted that the specified gross sum costs procedure was particularly useful in complex cases, that the power must be exercised judicially and only after giving the parties an adequate opportunity to make submissions, and that before exercising the power the court should be confident that the approach taken to estimate costs is fair, logical and reasonable.

[816] The terms of s 98(4), together with the more general considerations reflected in the Civil Procedure Act , ss 56(1), 57(1)(d) and 60, suggest the factors that merit particular consideration include: the relative responsibility of the parties for the costs incurred (for example, Harrison v Schipp ); the degree of any disproportion between the issue litigated and the costs claimed; the complexity of proceedings in relation to their cost; and the capacity of the unsuccessful party to satisfy any costs liability: *Ritchie’*s Uniform Civil Procedure NSW at [s 98.45].

[817] The exercise of the power conferred by s 98(4) is particularly appropriate where the costs have been incurred in lengthy or complex cases and it is desirable to avoid the expense, delay and aggravation likely to be involved in contested costs assessment. This may arise either from the likely length and complexity of the assessment process: Beach Petroleum NL v Johnson (No 2) at 120; Charlick Trading Pty Ltd v Australian National Railways Commission ; Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006; or from the likelihood that the additional costs of formal assessment would disadvantage the successful party because of the likely inability of the unsuccessful party to discharge the costs liability in any event: Harrison v Schipp ; Sony Entertainment (Aust) Ltd v Smith (2005) 215 ALR 788 at [90], [194]-[195]; Hadid v Lenfest Communications Inc [2000] FCA 628.

[818] The power may also be exercised where a party’s conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Leary v Leary [1987] 1 WLR 72; [1987] 1 All ER 261; Sony Entertainment (Aust) Ltd v Smith; Microsoft v Jiang (2003) 58 IPR 445; [2003] FCA 101; *Ritchie’*s Uniform Civil Procedure NSW at [s 98.60]).

[819] The assessment of any lump sum to be awarded must represent a review of the successful party’s costs by reference to the pleadings and complexity of the issues raised on the pleadings; the interlocutory processes; the preparation for final hearing and the final hearing: Smoothpool v Pickering [2001] SASC 131. In the exercise of its discretion the court is not required to undertake a detailed examination of the kind that would be appropriate to taxation or formal costs assessment: Harrison v Schipp at 743; Hadid v Lenfest Communications Inc at [35]; Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1 at 5; [1999] FCA 673.

[820] The costs ordered should be based on an informed assessment of the actual costs having regard to the information before the court (for example, by relying on costs estimates or bills): Beach Petroleum NL v Johnson (No 2) ; Leary v Leary ; Harrison v Schipp at 743 ; Sparnon v Apand Pty Ltd (FCA, 4 March 1998, unreported) . The approach taken to estimate the costs to be ordered must be logical, fair and reasonable: Beach Petroleum NL v Johnson at 164-165 ; Hadid v Lenfest Communications Inc at [27]; Harrison v Schipp at 743 . This may involve an impressionistic discount of the costs actually incurred or estimated, in order to take into account the contingencies that would be relevant in any formal costs assessment: Leary v Leary at WLR 76 per Purchas LJ; Beach Petroleum NL v Johnson (No 2) at 123; Auspine Ltd v Australian Newsprint Mills Ltd at 164-165.”

30. Unfortunately, the plaintiff was ill-equipped to respond to the application for a lump sum costs order. Despite her intelligence and ability to articulate the case she wishes to pursue, she has no knowledge of the principles which might be applied in determining costs. That is understandable but does not mean that no order should be made. I must deal with the application on its merits. She was given proper notice of the application.

31. There are really two issues for consideration, being:

32. should the order be made at all; and

33. what discount should be applied having regard to the amount of costs incurred and the itemisation of those costs as set out in the solicitors’ and counsel’s invoices.

34. The plaintiff’s principal response to the application was to point to references to other parties in the solicitor’s invoices. However, it became clear that, to the extent that there was any reference to other parties or doing something for other parties, the solicitors have not charged the tenth defendant for that work. To the extent there is reference to the tenth defendant dealing with other parties, that work was part of the process of representing the tenth defendant in response to the plaintiff’s claim.

35. In my view, a number of factors are particularly relevant. They include:

36. The plaintiff is representing herself in these proceedings. That is her right, but she understandably has no ability to respond to any cost assessment. It seems likely that the tenth defendant will be required to go through the process of a cost assessment with all the additional costs that are involved. Ultimately, it will be the plaintiff who bears those costs because it will be the plaintiff who will be insisting that the tenth defendant go through the process of cost assessment.

37. Whilst I do not accept that the conduct of the plaintiff has necessarily contributed to the incurring of the costs (other than that the plaintiff started the case and then lost), it seems likely that the process of assessment will be protracted. It seems likely that the plaintiff will object to many of the invoices because she already has a view that some of the charges do not relate to representing the tenth defendant. In my view, the whole process of costs assessment will involve both parties in more expense and time, and result in further arguments before this Court.

38. The tenth defendant is not an institution. She is not a bank or insurer which might regularly appear in these sorts of matters. I am informed that she has paid all the costs and she seeks to recover those costs against the plaintiff. In that sense, she is in the same position as the plaintiff. That is, she is an ordinary member of society who has been brought into the proceedings, except that she has succeeded in the proceedings.

39. In these circumstances, it is appropriate that I exercise the Court’s discretion and make a gross sum cost order pursuant to s 98(4)(c).

40. The Court has a broad discretion in making such an order. I have reviewed the invoices provided and paid by the tenth defendant. As I said during the hearing, the order I made was only that costs be paid on a party-party basis. There is no order for indemnity costs. I have regard to the fact that in making a lump sum costs order, I am depriving the plaintiff of an opportunity to challenge the assessment. However, in saying that, I have regard also to my own knowledge and experience in considering costs.

41. I propose to apply a discount of 40%. That is, the tenth defendant will be entitled to an order for costs of 60% of the amounts referred to in the affidavit of Mr Bodon.

42. I make the following orders, including further case management orders having regard to submissions made by the plaintiff and the Pucci defendants:

43. The plaintiff’s notice of motion filed 14 November 2025 is dismissed.

44. Consequent on the orders made dismissing the proceedings against the tenth defendant, I order that the plaintiff pay the tenth defendant’s costs on a gross sum cost basis in the total amount of $34,818.50, which includes the costs of the motion filed by the tenth defendant.

45. Order that the plaintiff write to the solicitors for the first defendant informing the first defendant of the orders that she proposes as against the first defendant, that is freezing orders, and the basis on which she is seeking the orders by 1 December 2025.

46. Order that the first defendant respond either agreeing to the orders or indicating whether he opposes the orders by 5 December 2025.

47. Grant liberty to the parties to approach chambers thereafter indicating whether this matter needs to be relisted to deal with the issue.

48. Order that the plaintiff serve any further amended statement of claim on which she seeks to rely removing from that statement of claim any defendant who is no longer a party and serve on the remaining defendants the amended statement of claim by 7 December 2025.

49. Should any defendant oppose the filing of the new statement of claim, I will hear argument about the matter when it next comes before the Court.

50. List the matter for further mention before Justice Cavanagh at 9:30am on 12 February 2026.

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