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[2025] NSWSC 881
General information, not legal advice.
Supreme Court of NSW
2025-07-15
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 [2025] NSWSC 881
Hearing dates: 14-15 July 2025
Date of orders: 15 July 2025
Decision date: 15 July 2025
Jurisdiction: Common Law
Before: Cavanagh J
Decision: (1) As against the first defendant, the restraining orders made by Rothman J on 23 May 2025 and continued by Wright J on 29 May 2025 are set aside.
(2) As against the second defendant, the restraining orders made by Rothman J on 23 May 2025 and continued by Wright J on 29 May 2025 remain in place on the terms set out in the judgment of Wright J. That is, the freezing orders do not prohibit the second defendant from paying up to $1,000 per week on ordinary living expenses and up to $50,000 in total for all of the Pucci defendants for reasonable legal expenses.
(3) Within 14 days, that is, by 29 July 2025, the second defendant is to file and serve an affidavit providing details of his assets, liabilities, and income.
(4) As against the third defendant, the restraining orders made by Rothman J on 23 May 2025 and continued by Wright J on 29 May 2025 remain in place on the terms set out in the judgment of Wright J. That is, the freezing orders do not prohibit the third defendant from paying up to $1,000 per week on ordinary living expenses and up to $50,000 in total for all of the Pucci defendants on reasonable legal expenses.
(5) Within 14 days, that is, by 29 July 2025, the third defendant is to file and serve an affidavit providing details of his assets, liabilities, and income.
(6) Set aside the orders made on 23 May 2025 and continued on 29 May 2025 in respect of the sixth defendant.
(7) The sixteenth defendant is restrained from disposing of, diminishing the value of, charging, or in any way dealing with the motor vehicle, being BMW registered number DGE92Z, until judgment is given or further orders of the Court are made.
(8) The seventh defendant is restrained from removing, disposing of, dealing with, or diminishing the value of the real properties registered to her, being the properties identified as 5011/821913Y and 357/250578, until judgement or further orders of the Court are made.
(9) Discharge the orders made on 23 and 29 May 2025 against the ninth defendant.
(10) Note that any financial institution through which the second and third defendants conduct banking are not required to freeze any account through which those defendants conduct their banking and need not be concerned with the policing of any such accounts with the intent that the financial institution will not be liable if the second and third defendants breach the injunction made against them.
(11) The second and third defendants are to provide copies of all of their bank accounts to the plaintiff every 8 weeks for the purpose of the plaintiff ensuring there is compliance with these restraining orders.
(12) List the matter for directions on Wednesday 30 July 2025.
(13) Direct the solicitors for the Pucci defendants to write to the trustee in bankruptcy and inform the trustee that they have been purporting to act for the first defendant, that the matter is listed for directions on 30 July 2025, and that the Court considers that the trustee in bankruptcy should attend on that day.
(14) The solicitors for the Pucci defendants are to write to all other defendants to inform them that the matter is listed before Cavanagh J for directions on 30 July 2025 and that the Court intends to vacate all the previous orders and make new orders which will involve dealing with any motions that any parties want to deal with some time in August 2025.
(15) Grant the parties liberty to apply.
Catchwords: CIVIL PROCEDURE – interim preservation – freezing orders – UCPR, r 25.14 – whether freezing orders should be maintained – orders maintained against some defendants
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 25.14
Cases Cited: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46
Cardile v LED Builders Pty Limited (1999) 198 CLR 380; [1999] HCA 18
Samimi v Seyedabadi; Seyedabadi v Samimi [2013] NSWCA 279
Talacko v Talacko (2021) 272 CLR 478; [2021] HCA 15
Williams v Hursey (1959) 103 CLR 30; [1959] HCA 51
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)
John-Paul Pucci (Eighth Defendant)
Shirina Holmatova (Ninth Defendant)
Patricia Ficarra (Tenth Defendant)
Berta Dias (Eleventh Defendant)
Dominic Carbone (Twelfth Defendant)
Sydney Law Practice Pty Ltd (Thirteenth Defendant)
Jason Michael (Fourteenth Defendant)
Unique Property Real Estate (Fifteenth Defendant)
Integrated Programmed Services Pty Ltd (Sixteenth Defendant)
Representation: Counsel:
D Allen (First, Second, Third, Sixth, and Sixteenth Defendants)
Solicitors:
Plaintiff (self-represented)
Stewart & Associates (First, Second, Third, Sixth, and Sixteenth Defendants)
Seventh Defendant (self-represented and representing the Ninth Defendant)
File Number(s): 2025/186499
Publication restriction: Nil
The plaintiff seeks orders for the continuation of freezing orders made by Rothman J on 23 May 2025 in respect of 7 of the 16 defendants who she has sued in these proceedings.
The original orders were made ex parte. Notice was then given to the defendants. The matter then came back before Wright J on 29 May 2025. His Honour made orders extending and modifying the operation of the freezing orders until a full hearing.
The matter was then listed before me for two days on 14 and 15 July 2025. I am delivering this ex tempore judgment at the end of the hearing, because the plaintiff is unrepresented, as are two of the other parties subject to the orders, being the seventh and ninth defendants.
Mr Allen of counsel appeared on behalf of the parties who are described as the Pucci defendants, being the first, second, third, sixth and sixteenth defendants. The Pucci defendants submit that the freezing orders should not be continued against them and thus ask that the orders be discharged.
The seventh defendant, Ms Ergashova, sought to appear approximately halfway through the hearing. She asked to also represent her daughter, the ninth defendant.
She made submissions opposing the extension of any orders as against her and her daughter, relying on her own affidavit and one from her daughter.
The background to the current application is of some complexity and notoriety.
By way of a statement of claim filed on 15 May 2025, the plaintiff seeks orders in the nature of damages and declarations from sixteen defendants.
She says that in the second half of 2020, all of these defendants were involved in a conspiracy to defraud, impersonate, intimidate, incriminate, and deport her.
She claims that in November 2020, she lent the sum of approximately $490,000 to the first defendant who is given various names in the statement of claim but is generally known as Enrico Pucci. She says that at the time of the loan to the first defendant, she was in a romantic relationship with him with the idea that they would be getting married.
The plaintiff says that she was deceived and misled into providing a short-term loan to the first defendant (she believed for a period of two weeks), and that that money has never been returned to her.
She says that she was induced into lending the money to the first defendant through the conduct of the first defendant and all of the other defendants who (on her case) were engaged in a conspiracy to defraud her, that is, to cause her to give the money to the first defendant in circumstances in which they would have been aware that he would be unlikely to repay the loan.
In essence, she maintains that she was the victim of a sophisticated scam not just by the first defendant but by other members of his family and persons known to him, who all conspired to lure her into handing over a large sum of money to the first defendant.
It must be said that there are some deficiencies in her pleading, which have been appropriately pointed out by Mr Allen. Having said that, her statement of claim is an extensive document in which she pleads material facts against each of the defendants. Further, from the relief sought, it is plain that she is maintaining a cause of action in the tort of conspiracy and that she says that at least some of the defendants have been involved in identity theft as against her.
In 2020, the plaintiff, a single woman who was at the time in Australia on a temporary visa, entered into a relationship with the first defendant. It is said that that relationship commenced in around May 2020.
The plaintiff says that during the period of the relationship (that is, until shortly after she deposited the money into the first defendant’s bank account), she was induced by the first defendant and members of his family and other persons to believe that the relationship was a genuine one. It was an intimate and romantic relationship.
She was induced into believing that the first defendant was a single man who was looking for love and was keen to develop a permanent relationship with her.
She says that she was informed both by the first defendant and other family members such as the second defendant, being the first defendant’s brother; the third defendant, being the first and second defendant’s father; and, even the son of the second defendant, being the sixth defendant, to believe that the first defendant had good intentions towards her, that the relationship was genuine, and indeed that the Pucci family was a successful family engaged in business and of considerable wealth.
At some point prior to the end of November 2020, she was informed by the first defendant that the first defendant’s aunt had died and that there had been a significant bequest made to him and perhaps other family members. She maintains that this story was a complete fabrication.
She was led to believe that the first defendant was in the process of or had purchased a home unit, which she believed would become their marital home, for an amount in the order of $10 million.
She was led to believe by statements made by the first defendant and supported by other family members from time to time, that the first defendant was in the process of purchasing this unit and making repayments in respect of a significant loan which he had taken out, that is, in addition to the cash that he had paid as a result of the bequest from an alleged “dead aunt”.
The plaintiff says that during November 2020, the first defendant informed her that due to a short-term financial difficulty, he was unable to make a repayment on the loan, and he asked the plaintiff if she could lend him US$350,000 to assist him in making the repayment on the basis that he would repay her within two weeks.
After making some inquiries, that is, inquiries of the person she knew using the name he was using at the time, she became satisfied that the first defendant was a genuine person. She was comforted by conversations or meetings she had with the first defendant’s brother, that is the second defendant, and the first defendant’s father, that is the third defendant, as well as messages she had received from the second defendant’s son, being the sixth defendant.
She then made a decision to do what the first defendant requested of her, which was to loan him the money.
Within a few weeks, the first defendant had called off the relationship. According to the seventh defendant, who appears in person, he had renewed his relationship with her.
It seems that the first defendant was married in 2020 but had separated from his wife. He had been, or was, in an on/off relationship with the seventh defendant.
He appears to have started the relationship with the plaintiff whilst also in a relationship with the seventh defendant. I should say that I am somewhat uncertain as to what was really going on as I must approach anything said by the Pucci defendants and the seventh defendant with a degree of caution. Some of their evidence (that is, the content of their affidavits) is plainly wrong and quite absurd.
The simple point made by the plaintiff is that she has been a victim of a scam or a fraud. She was misled into a romantic relationship and ultimately deceived into handing over a significant sum of money to the first defendant.
As soon as she became aware of what was happening, she commenced proceedings in the District Court for the repayment of the loan.
On 14 May 2021, she a obtained a judgment against the first defendant in the sum of $490,362.32.
Subsequent to that judgment, the first defendant entered bankruptcy. Before doing so, he transferred his interest in the sixteenth defendant to the second defendant. He resigned as a director and the second defendant replaced him, the second defendant seemingly having gone down that path previously but by then he had been discharged from his period of bankruptcy.
The first defendant has not repaid any amount to the plaintiff. His explanation in his affidavit is that as soon as the money was deposited into his account, it became subject to orders allowing existing creditors, including the ATO, to seize the money. This is again plainly false, as his bank statements demonstrate, and having regard to a photo of a large amount of cash sitting on a table in the days after the money was deposited by the plaintiff.
During the past four years, the plaintiff has been subject to a concerted campaign of harassment, intimidation and victimisation by a number of the Pucci defendants and the seventh defendant. She has been subjected to 40 complaints to the police and other proceedings in the Local Court initiated by one or other of the Pucci defendants or the seventh defendant.
On my analysis of the documents, those reporting have often used false names and false addresses but have always nominated the plaintiff as the person the subject of the complaint. None of the complaints have ever been pursued or are subject to any finding by any court. She has been subject to AVOs and various other applications.
On the plaintiff’s case, all of this has been to intimidate and harass her and dissuade her from pursuing recovery of the money that she lent to the first defendant.
Despite all of that, she has not wavered in her determination to recover her money.
She now pursues these proceedings. She names sixteen defendants as follows:
the first defendant, who in the statement of claim is given a number of different names and addresses, being names and addresses he appears to use from time to time when it apparently suits him;
the second defendant, who also appears to use different names from time to time. He is the first defendant’s brother;
the third defendant, who is the father of the first and second defendants;
the fourth defendant (against whom no freezing order is sought) is a financial broker or business dealer, who has acted on behalf of the Pucci family;
the fifth defendant (against whom no freezing order is sought) is the company who employs the fourth defendant;
the sixth defendant is the son of the second defendant;
the seventh defendant, who appears today in person, is the former partner, fiancée or girlfriend of the first defendant;
the eighth defendant is also a relative, but no freezing orders are sought against him;
the ninth defendant is the daughter of the seventh defendant;
the tenth and eleventh defendants, whom no orders are sought against today;
the twelfth and thirteenth defendants are the solicitor and his company who acted for the Pucci family in respect of certain property dealings. No orders are sought against them today;
the fourteenth and fifteenth defendants are a real estate agent and a real estate agency. Allegations are made against those defendants in respect of their involvement with the Pucci family and the use of the plaintiff’s signature in respect of certain property or business dealings. No orders are sought against them today;
the sixteenth defendant, who is identified as one of the Pucci defendants, is a company of which the first defendant was a director and shareholder until some weeks before he went into bankruptcy and transferred the ownership of the shares to the second defendant. The second defendant has been a director of that company since that time.
In support of the application, the plaintiff relies on her own affidavits dated 23 May 2025, 29 May 2025, 1 July 2025 and two affidavits dated 11 July 2025 attached to which are a large number of documents.
The Pucci defendants rely on their own court book, which included affidavits from the first defendant dated 17 June 2025, the second defendant dated 19 June 2025, the third defendant dated 24 June 2025, and the sixth defendant dated 23 June 2025.
The plaintiff required the second defendant for cross-examination. I limited the cross-examination to matters relating to the potential for the second defendant to dispose of assets.
It was put to the second defendant that he had a history of not paying debts, using phoenix directors, including someone said to be a 20 year old woman from Russia, avoiding paying debts by going into bankruptcy, and transferring money between family members for the purposes of avoiding debts. There is support for these propositions in the evidence relied on by the plaintiff.
The second defendant was, to say the least, an unimpressive witness. He sought to use the witness box as a means of making generalised self‑serving statements in support of his own position. He declined to answer a number of straightforward questions, rather pretending to not understand them and again, making self-serving statements. His evidence was wholly lacking in credibility. I would not accept anything he said if it was not otherwise corroborated by objective evidence.
Similarly, having regard to the first defendant’s evidence in his affidavit, it is plain that he is not telling the truth in a number of respects. He seeks to blame the plaintiff for the loss of her money, suggesting that she was involved in trying to defraud the tax office, hide money or was involved in money laundering. In effect, he says that she was hiding her money in his bank account.
He says that the money was never repaid because, when it was put into his bank account, he was already subject to various garnishee orders from the tax office and other institutions. Of course, the problem with that is that days after the money was lent to the first defendant, a photograph was sent to the plaintiff of piles of cash. I am not sure why this was sent other than to cruelly rub the plaintiff’s nose in it. Having said that, the first defendant says that he sent the photo to her as part of his offer to pay all of the money back to her in cash but she rejected his offer. This is absurd.
The first defendant has been bankrupt since 2021. Again, I have concerns about the circumstances in which he entered into bankruptcy and on the information available to me, I have concerns about those who purport to be creditors.
I am informed, helpfully by Mr Allen, that the trustee in bankruptcy has decided to extend his bankruptcy now to 2029.
The plaintiff was not required for cross‑examination today. She presented her case ably from the bar table. She presents as an intelligent woman who has been devastated by what has happened to her and remains significantly distressed. She presents as a person who is determined to seek redress against those who have scammed or defrauded her.
This is why, on her case, she is pursuing these proceedings against so many defendants. She has presented extensive evidence on the conduct of the Pucci defendants and their involvement in scamming her and refusing to pay back any money, trying to hide assets from her and continuing to harass her. That evidence is deeply concerning and troubling.
This cause of action is perhaps rarely pursued in Australia.
In simple terms, a tortious conspiracy requires two or more persons entering into an agreement to effect an unlawful purpose, and in the carrying out of that agreement, damage is caused to a third person (see Williams v Hursey (1959) 103 CLR 30; [1959] HCA 51 at 122; Talacko v Talacko (2021) 272 CLR 478; [2021] HCA 15 at [25]).
It does not matter whether each party alleged to be part of the conspiracy knows all of the details of the means by which the fraud is to take place or even whether they are fully aware of all the details of the conspiracy.
Further, it is not necessary to establish that any of the parties have actually been involved in an unlawful act. The elements of the tort are that a number of persons conspired with each other with the view to unlawfully causing a loss to the other party.
The plaintiff alleges that each of the sixteen defendants conspired with each other to cause her loss by inducing her to hand over a substantial sum to the first defendant in circumstances in which they must have known that the plaintiff was, to speak colloquially, being scammed or cheated by the first defendant.
The issue before the Court today is whether I should continue the freezing orders which were made ex parte on 23 May 2025. Mr Allen provided very helpful submissions and presented his client’s case to the best of his ability, having regard to the somewhat limited instructions he was given on some of the factual matters.
He says that the plaintiff has not established that there is any proper basis for continuing the freezing orders against the Pucci defendants.
Rule 25.14 of the Uniform Civil Procedure Rules 2005 (NSW) is in the following terms:
25.14 Order against judgment debtor or prospective judgment debtor or third party
(cf Federal Court Rules Order 25A, rule 5)
(1) This rule applies if—
(a) judgment has been given in favour of an applicant by—
(i) the court, or
(ii) in the case of a judgment to which subrule (2) applies—another court, or
(b) an applicant has a good arguable case on an accrued or prospective cause of action that is justiciable in—
(i) the court, or
(ii) in the case of a cause of action to which subrule (3) applies—another court.
(2) This subrule applies to a judgment if there is a sufficient prospect that the judgment will be registered in or enforced by the court.
(3) This subrule applies to a cause of action if—
(a) there is a sufficient prospect that the other court will give judgment in favour of the applicant, and
(b) there is a sufficient prospect that the judgment will be registered in or enforced by the court.
(4) The court may make a freezing order or an ancillary order or both against a judgment debtor or prospective judgment debtor if the court is satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because any of the following might occur—
(a) the judgment debtor, prospective judgment debtor or another person absconds,
(b) the assets of the judgment debtor, prospective judgment debtor or another person are—
(i) removed from Australia or from a place inside or outside Australia, or
(ii) disposed of, dealt with or diminished in value.
(5) The court may make a freezing order or an ancillary order or both against a person other than a judgment debtor or prospective judgment debtor (a third party) if the court is satisfied, having regard to all the circumstances, that—
(a) there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because—
(i) the third party holds or is using, or has exercised or is exercising, a power of disposition over assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor, or
(ii) the third party is in possession of, or in a position of control or influence concerning, assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor, or
(b) a process in the court is or may ultimately be available to the applicant as a result of a judgment or prospective judgment, under which process the third party may be obliged to disgorge assets or contribute toward satisfying the judgment or prospective judgment.
(6) Nothing in this rule affects the power of the court to make a freezing order or ancillary order if the court considers it is in the interests of justice to do so.
The plaintiff must establish that she has a good arguable case and that there is a danger that a judgment or prospective judgment would be wholly or partially unsatisfied because the prospective judgment debtor or another person absconds or the assets of the prospective judgment debtor or another person are removed from Australia, disposed of, dealt with or diminished in value.
I am thus required to be satisfied of two matters being that:
the plaintiff has made out a prima facie case or a good arguable case: see Samimi v Seyedabadi*;* Seyedabadi v Samimi [2013] NSWCA 279; A**ustralian B**roadcasting C**orporation v O*’*Neill (2006) 227 CLR 57; [2006] HCA 46; and
there is a risk that assets of the defendants might dissipate. In other words, there is a risk that the defendants might take steps to dispose of or diminish their asset so as to frustrate the effect of any judgment that has been obtained.
I will now deal with the plaintiff’s case against each of the seven defendants against whom she seeks freezing orders.
The first defendant is alleged to have conned the plaintiff and deceived her into handing over US$350,000 to him. It is clear that he withdrew the money from his account and kept at least a significant amount in cash for some period.
According to the second defendant (as he said during cross-examination), the first defendant used some of the plaintiff’s money to purchase a BMW for himself, albeit that car is registered in the name of the sixteenth defendant. The second defendant’s own words thus demonstrate the falsity of the first defendant’s evidence.
According to the seventh defendant, he also used some of the plaintiff’s money to purchase a Toyota Camry for her benefit.
I accept also that at some point after the plaintiff had lent the money to the first defendant, he paid a significant sum to the seventh defendant in order to settle an ongoing dispute with her. That dispute involved the sum of $100,000.
I accept that the plaintiff has established a prima facie case against the first defendant based on her cause of action in conspiracy. However, the first defendant is a bankrupt. His assets are vested in the trustee in bankruptcy. She has not obtained leave of the Federal Court to proceed against him.
It is somewhat surprising that he is here represented and the trustee in bankruptcy is not here, but I accept Mr Allen’s statement that he considers, at least at this stage, that he is entitled to represent the first defendant in these proceedings.
In the circumstances, the plaintiff is not entitled to an order restraining the first defendant because she has not sought leave to proceed against the first defendant and thus cannot proceed against him at this time because he is a bankrupt. His assets are vested in the trustee.
Whatever may be thought of the first defendant’s conduct, reputation, deceit, and deception, I must proceed on the basis that his affairs are under the control of the trustee in bankruptcy.
In the circumstances, the freezing order against the first defendant will be discharged.
The second defendant is the first defendant’s brother.
On the plaintiff’s case, he was directly involved in the deception and defrauding of her. He attended lunches and meetings with her where he pretended that the first defendant was a wealthy, single businessman looking for a partner in life and encouraged the plaintiff in developing the relationship with the first defendant.
I found the second defendant to be entirely lacking in credibility. I do not accept his evidence.
I am satisfied that the plaintiff has an arguable case against the second defendant arising out of his conduct in engaging with the plaintiff and his brother in causing the plaintiff to believe that she was in a genuine relationship with a person who was a wealthy businessman and inducing her to believe that she should part with her money, that is, loan the money to the first defendant.
I am also satisfied that if a restraining order is not made as against the second defendant, there is a risk that he will dissipate any funds or assets he might have.
The second defendant has a long history of moving money around, of being part of companies which do not trade and of avoiding debts by entering into bankruptcy.
He is currently the director of the sixteenth defendant which he says is a cleaning company which has four employees and engages a number of contractors. I do not know whether that is true both because I am unable to accept his evidence and secondly, because in the report of the trustee in bankruptcy, the company is said by the trustee not to have been trading back in 2021.
In the circumstances, I am satisfied that the freezing order should continue as against the second defendant.
The third defendant is the father of the first and second defendants.
He was also involved in conduct intended to deceive the plaintiff prior to the plaintiff loaning the money to the first defendant. At least on the plaintiff’s evidence, he was part of a conversation with the plaintiff during which the plaintiff expressed condolences to him for the death of his sister and a discussion ensued about his sister and about matters relating to his sister.
Again, the defendants have chosen not to respond to this evidence, but on the plaintiff’s case, the death of the sister was a complete fabrication, as was the proposition that the sister had left a substantial sum of money to the first defendant. It was all part of the scam. The third defendant was part of this, at least on the plaintiff’s case.
Again, I am satisfied, having regard to the evidence adduced by the plaintiff that there is a risk that the third defendant might dissipate any assets, and the freezing orders will continue as against the third defendant.
The sixth defendant is the nephew of the first defendant and son of the second defendant. There is evidence of joint bank accounts held with the first defendant.
The case against the sixth defendant is based on the assertion that prior to lending the money and as part of the deception of the plaintiff, the plaintiff entered into a residential tenancy agreement, presumably to assist the first defendant or other members of the family in obtaining loans.
The plaintiff says that her signature was then forged, and the document was copied or used on a number of occasions and finance was obtained in the sum of $980,000, allowing the sixth defendant to become the owner of real estate.
However, I am not satisfied that the plaintiff has established an arguable case in conspiracy against the sixth defendant, that is, that the sixth defendant was actually part of the conspiracy. It has not been established that the sixth defendant was aware of what was happening with the plaintiff.
That is not to say that the plaintiff may not establish a case against the sixth defendant in due course, but I am not satisfied at this stage that she has established an arguable case against the sixth defendant and in those circumstances the freezing order against him will be discharged.
The sixteenth defendant is a company which was formerly primarily owned by the first defendant. He was also the director and controlling mind of that company until shortly before he became bankrupt in July 2021. The shares were transferred to the second defendant who is now the director and principal shareholder of that company.
I note that during the plaintiff’s cross-examination of the second defendant, he was asked a number of questions about this company. He seemed incapable or unwilling to answer even basic questions about the shares or how he came to own the shares.
Be that as it may, the second defendant did make a statement during his oral evidence that the first defendant had used some of the money loaned to him by the plaintiff to buy a BMW. The company is now the registered owner of that BMW. The second defendant’s statement that the first defendant had used the money to buy the BMW is completely inconsistent with his own earlier evidence and with anything said by the first defendant about what happened to the money.
I am further satisfied on the evidence before me on a prima facie basis that part of the plaintiff’s money was also used to purchase a Toyota Camry.
However, I am not satisfied that the plaintiff has established any arguable case against the sixteenth defendant. When the first defendant was deceiving, misleading, and defrauding her, he was doing so in his personal capacity. He was not acting in his capacity as a director of the company.
The plaintiff may be right in suggesting that the company has benefited from the deception, because it now has assets which have been purchased using her funds. However, that does not assist her in the remedy she seeks against the company.
Having said that, there may be circumstances in which a third party may be subject to a freezing order. In Cardile v LED Builders Pty Limited (1999) 198 CLR 380; [1999] HCA 18 (“Cardile”) at 405-406 per Gaudron, McHugh, Gummow and Callinan JJ, their Honours said:
“What then is the principle to guide the courts in determining whether to grant Mareva relief in a case such as the present where the activities of third parties are the object sought to be restrained? In our opinion such an order may, and we emphasise the word ‘may’, be appropriate, assuming the existence of other relevant criteria and discretionary factors, in circumstances in which: (i) the third party holds, is using, or has exercised or is exercising a power of disposition over, or is otherwise in possession of, assets, including ‘claims and expectancies’, of the judgment debtor or potential judgment debtor; or (ii) some process, ultimately enforceable by the courts, is or may be available to the judgment creditor as a consequence of a judgment against that actual or potential judgment debtor, pursuant to which, whether by appointment of a liquidator, trustee in bankruptcy, receiver or otherwise, the third party may be obliged to disgorge property or otherwise contribute to the funds or property of the judgment debtor to help satisfy the judgment against the judgment debtor.
It is that principle which we would apply to this case. Its application is a matter of law, although discretionary elements are involved.”
Having regard to the evidence of the second defendant, I am satisfied that moneys owed by the first defendant were used to purchase motor vehicles, and the ownership of the motor vehicles was then either transferred to the company, or in some way remain the assets of the company.
In these circumstances there is some potential for the trustee in bankruptcy to take action to recover those assets. I am thus satisfied that it remains appropriate for the freezing order to remain in place as against the sixteenth defendant.
However, I am also mindful of the principle that freezing orders should not extend beyond what is necessary in all the circumstances (see Cardile at 409).
The plaintiff has not established on this application that the sixteenth defendant is a sham company. I am left in the position that it appears to be a business operating and trading at this time. In these circumstances, any freezing order should be limited to those two motor vehicles.
I note for the record that on the second day of the hearing, being after the second defendant had admitted that the first defendant has used the plaintiff’s money to buy the BMW, Mr Allen on behalf of the Pucci defendants handed up an undertaking, the effect of which was that the Pucci defendants would not seek to dispose of or deal with the BMW.
I note that undertaking given by the Pucci defendants. However, the freezing order in respect of the BMW will remain in place (noting the Toyota Camry has been sold).
As against the seventh defendant, the plaintiff says that before she loaned the money to the first defendant, the seventh defendant was well aware of her existence, her relationship with the first defendant and what the first defendant was doing.
Her main complaint against the seventh defendant is that although initially the seventh defendant sought to assist her in providing significant information about the general conduct and activities of the first, second and third defendants, the seventh defendant ultimately was able to extract a significant sum of money from the first defendant, in return for which she agreed to assist the first defendant as against the plaintiff.
The seventh defendant, who may or may not have been in a relationship with the first defendant in 2020, was in dispute with the first defendant over a sum of $100,000 said to have been owed to her by him. It is a remarkable coincidence that that dispute was settled shortly after the plaintiff loaned the money to the first defendant.
In her submissions, the seventh defendant said that although she had sent an email to the plaintiff essentially boasting about having been paid by the first defendant, and threatening the plaintiff, she was really only meaning to say that a small amount of her debts had been paid by the first defendant. This is nonsense. I do not accept this submission.
The plaintiff’s case against the seventh defendant is really that she was involved in the concealment of the money after the loan and has been directly and actively involved in the intimidation of the plaintiff over the past few years. I accept that she has been.
I am unable to accept the seventh defendant’s submissions. A number of statements made by her from the bar table are contradicted by statements made in her own emails.
Yet, the case against the seventh defendant is unclear. The plaintiff has not established that she has an arguable case against the seventh defendant. Nor am I satisfied that she has any arguable case in conspiracy against the ninth defendant.
However, I am satisfied that the seventh defendant received a significant sum of money from the first defendant shortly after the plaintiff loaned the money to the first defendant. I am satisfied that the payment of this money by the first defendant caused the seventh defendant to completely change her approach and attitude to the plaintiff. She has become an active participant in the intimidation of the plaintiff.
The plaintiff tendered a property search. The seventh defendant is the owner of real property in Victoria and in Queensland. The seventh defendant falls into the category of persons who is a third party who has received the benefit of the money paid by the plaintiff.
In these circumstances, I am satisfied that the freezing order should continue against the seventh defendant but restricted only to restraining her from dealing with the real properties owned by her at this time.
I am not satisfied that the plaintiff has made out a case for any restraining order against the ninth defendant.
I make the following orders:
As against the first defendant, the restraining orders made by Rothman J on 23 May 2025 and continued by Wright J on 29 May 2025 are set aside.
As against the second defendant, the restraining orders made by Rothman J on 23 May 2025 and continued by Wright J on 29 May 2025 remain in place on the terms set out in the judgment of Wright J. That is, the freezing orders do not prohibit the second defendant from paying up to $1,000 per week on ordinary living expenses and up to $50,000 in total for all of the Pucci defendants for reasonable legal expenses.
Within 14 days, that is, by 29 July 2025, the second defendant is to file and serve an affidavit providing details of his assets, liabilities, and income.
As against the third defendant, the restraining orders made by Rothman J on 23 May 2025 and continued by Wright J on 29 May 2025 remain in place on the terms set out in the judgment of Wright J. That is, the freezing orders do not prohibit the third defendant from paying up to $1,000 per week on ordinary living expenses and up to $50,000 in total for all of the Pucci defendants on reasonable legal expenses.
Within 14 days, that is, by 29 July 2025, the third defendant is to file and serve an affidavit providing details of his assets, liabilities, and income.
Set aside the orders made on 23 May 2025 and continued on 29 May 2025 in respect of the sixth defendant.
The sixteenth defendant is restrained from disposing of, diminishing the value of, charging, or in any way dealing with the motor vehicle, being BMW registered number DGE92Z, until judgment is given or further orders of the Court are made.
The seventh defendant is restrained from removing, disposing of, dealing with, or diminishing the value of the real properties registered to her, being the properties identified as 5011/821913Y and 357/250578, until judgement or further orders of the Court are made.
Discharge the orders made on 23 and 29 May 2025 against the ninth defendant.
Note that any financial institution through which the second and third defendants conduct banking are not required to freeze any account through which those defendants conduct their banking and need not be concerned with the policing of any such accounts with the intent that the financial institution will not be liable if the second and third defendants breach the injunction made against them.
The second and third defendants are to provide copies of all of their bank accounts to the plaintiff every 8 weeks for the purpose of the plaintiff ensuring there is compliance with these restraining orders.
List the matter for directions on Wednesday 30 July 2025.
Direct the solicitors for the Pucci defendants to write to the trustee in bankruptcy and inform the trustee that they have been purporting to act for the first defendant, that the matter is listed for directions on 30 July 2025, and that the Court considers that the trustee in bankruptcy should attend on that day.
The solicitors for the Pucci defendants are to write to all other defendants to inform them that the matter is listed before Cavanagh J for directions on 30 July 2025 and that the Court intends to vacate all the previous orders and make new orders which will involve dealing with any motions that any parties want to deal with some time in August 2025.
Grant the parties liberty to apply.
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Aslan
Pucci [2025] NSWSC 881
(2006) 227 CLR 57
(1999) 198 CLR 380
(2021) 272 CLR 478
(1959) 103 CLR 30