GP Buildings Holdings v Voitin [2021] VCC 1487

2 The second plaintiff, Mr Beiruti, completed high school and then qualified as a panel-beater, working in the trade for eight years. He then turned to property development, initially in a hands-on role working on building sites, and later in a purely supervisory capacity. (Transcript ("T") 116, Lines ("L") 13−29) He married in 2010, but separated from his wife in 2015. (T117, L6−11) This led to a property settlement between Mr Beiruti and his wife which left him with cash in the sum of $3,245,000. (Ibid, L10−23) This cash sum, together with a gymnasium business, represented Mr Beiruti's entire capital following the settlement. (T117, L31-T118, L4)

3 Mr John Voitin, the defendant Clare's husband, had been Mr Beiruti's legal adviser since 2007. He had provided a range of legal services to Mr Beiruti, including the necessary work associated with Mr Beiruti's property development enterprises, as well as arranging visas for trainers to be brought from overseas to work in Mr Beiruti's fitness business. Mr Beiruti and his companies had from time to time placed moneys in the trust accounts operated by Mr Voitin. These moneys were the proceeds of property developments which were paid into trust and shortly thereafter disbursed. The sums involved, on Mr Beiruti's calculations, were in the hundreds of thousands. (T118, L8−25) During this time, Mr Voitin had been a member of a number of different legal practices. According to Mr Beiruti, when he first dealt with Mr Voitin he was a principal of a firm known as 'Voitin and Voitin' with its offices in Burke Road. (Ibid, L26−30) Later, Mr Voitin practised under the name 'Stanton Grant Legal' with offices in South Melbourne. (T119, L1−3)

4 In the period 2007 to 2014, Mr Beiruti said he "knew of" the defendant Mrs Voitin, but was not personally acquainted with her. (T119, L8−11) He said Mr Voitin spoke of his wife and multiple businesses which she had launched, many of them without success. (Ibid, L13−18) In 2012, Mr Beiruti was considering going into the "cash for gold" business, and Mr Voitin undertook some preliminary legal work for him. (Ibid, L24−29)

5 According to Mr Beiruti, after he had received the $3.245m property settlement, Mr Voitin asked him where it was invested. It was in a Commonwealth Bank term deposit, earning minimal interest. According to Mr Beiruti, Mr Voitin said, "Do you want to get a high interest? We do first mortgages." According to Mr Beiruti, Mr Voitin:

"gave me a rundown of how it works and what ... that would consist of. And he asked me if I was interested in doing lawyers first mortgages ... So, I trusted him, thought I was getting 10 to 12 percent interest as opposed to CBA ... giving 2 percent." (T120, L11−22)

6 Mr Beiruti then transferred the entire $3,245,000 to Mr Voitin in May 2016. Mr Beiruti said "He would put them into first mortgages." The terms were to be "3, 6, and 12", viz months. (Ibid, L23‑30) Mr Beiruti said that he was told "upon maturity", viz at the end of, for example, a three-month term, he would "get the principal plus interest and then if [he] wanted to reinvest them again, [he] could reinvest them."

7 Mr Beiruti's account would have it that he personally placed the capital sum with Mr Voitin's legal practice. In fact, however, the party which paid in the money was the first plaintiff in this proceeding, GP Building Holdings Pty Ltd, a company controlled by Mr Beiruti. (T138, L5−11) One might have expected that the proceeds of the divorce settlement would go to the former spouse, not to his company, but on Mr Beiruti's account the moneys came to GP, and it was that company which lodged the funds with Mr Voitin. (Ibid, L13−19) Mr Beiruti now understands that as early as May 2016 some $34,500 of the moneys lodged by GP with Mr Voitin's legal practice was transferred to his firm's office account. (T121, L16−23)

8 After several months Mr Beiruti, or rather, GP had received no interest, despite the promises of interest at the rate of 10−12 per cent per annum. Mr Beiruti was apparently becoming anxious. He said that on 23 September 2016, a date which he remembers as being the date after his daughter's birthday, he was "driving back from Doncaster from taking [his] daughter for a birthday dinner." He said he spotted a white Toyota LandCruiser which he recognised as Mr Voitin's motorcar. He stopped his car and then noticed the figure of Mr Voitin sitting in the front window of a cafe located at the corner of Whitehorse Road and Leonard Street.

9 He walked into the cafe at 143 Whitehorse Road, which is opposite a set of tennis courts and a luxury car yard. He said that Mr and Mrs Voitin were sitting at one of the tables. He greeted Mr Voitin, who said to his wife: "This is Ruby. He's a client of mine. His daughter goes to Camberwell Girls Grammar. He's looking for a property in the area." (T122−3, L15−18) According to Mr Beiruti, he replied: "John why have you been avoiding me?" (T124, L2) Following a pause, he said Mr Voitin replied, "There's been a few minor issues but the good news is a few [scil mortgages] have settled and there'll be a million in the trust account on Monday." (Ibid, L4−7) According to Mr Beiruti, he then said goodbye to Mrs Voitin, saying to Mr Voitin, "John can you please make sure I've got my settlement" (Ibid, L8−10), to which Mr Voitin replied, "I'll look you in the eyes, you'll have your money on Monday, give me a call." (Ibid, L10−12)

10 According to Mr Beiruti, he took the somewhat unusual action of "collaring" Mr Voitin on what appeared to be a social occasion because "he kept avoiding me ... I kept ringing his office and calling his phone and ringing his office and Jacinta [his secretary] used to just give me the run around and say ... he's not here ..." (Ibid, L20−23) Mr Beiruti said he was anxious for the money because he owed his ex‑wife Kelly $186,000 which was payable there and then. (T125, L8−10) He drove his daughter back to his ex‑wife's residence to meet a bedtime deadline of 7pm to be asleep by 7.30pm. (T125, L15−17) He said he had taken his daughter to dinner at an establishment known as 'Secret Kitchen' for her birthday. (Ibid, L25−27)

11 The promised funds did not arrive. Mr Beiruti complained of further difficulty in making contact with Mr Voitin and being fobbed off with explanations as to "a few minor issues" etc. He said he followed the matter up "100 times". (T126, L2−7) The only interest which Mr Beiruti said he ever received on his capital was "a hundred thousand" which was designated as interest and paid "after we chased him [viz Mr Voitin] up." (T122, L1−3)

12 Mr Beiruti said he eventually caught up with Mr Voitin a second time at the same cafe in early 2017. He spoke to him outside the front of the establishment. According to Mr Beiruti, he asked Mr Voitin: "What's happening, what's going on, are you robbing me, why are you avoiding me ..." (Ibid, L11−17) Mr Voitin, he said, replied "I assure you ... there's just been a few minor issue and ... your money's safe, it's insured ... and I give you my word it's coming." (Ibid, L18−21) In this conversation, he said, Mr Voitin told him, "Clare owns the cafe." (Ibid, L28−30) At this time, in Mr Beiruti's understanding, Mr Voitin's family home was only a block away in Terry Street, which runs off the eastern side of Whitehorse Road. (T127, L6−19) He said the distance between the cafe and Mr Voitin's residence was 300 or 400 metres. (Ibid, L21−22)

13 Eventually Mr Beiruti engaged SLF Lawyers to bring legal proceedings to recover GP's investment. (T127, L24−31) In September 2018, SLF filed a claim on behalf of GP and Mr Beiruti, bringing a claim relative to the invested funds against Mr Voitin and Second Life Retirement Fund Pty Ltd. An amended statement of claim was filed pursuant to the order of Sloss J in the Supreme Court made 29 August 2019 joining Albert Road Holdings Pty Ltd and Property Transfers Pty Ltd as additional defendants. (CB 2289_ff_) By the amended statement of claim, GP and Mr Beiruti sought a suite of relief against the defendants, including an order for the repayment of $3,245,000, equitable compensation, declarations, and an account, together with other relief. (CB 2331)

14 Independently of the court proceedings however, GP and Mr Beiruti seem to have gained some sort of redress against Mr Voitin. In May 2018, Mr Voitin executed a mortgage in favour of GP (CB 2136) over the land comprised in Certificate of Title Volume 10203 Folio 424. This appears to relate to a property at 30 Seabird Way, Portsea. The Commonwealth Bank of Australia, it seems, held the first mortgage over that property. According to Mr Beiruti, the Commonwealth Bank's attempts to sell as mortgagee were obstructed by Mrs Voitin, who was "running Airbnbs" from the property, and the bank ultimately had to send security guards to maintain possession. When the sale was completed, Mr Beiruti, or perhaps more accurately GP, received $480,000. (T133, L23−T134, L18)

15 GP also obtained a mortgage over a property at Cliff Road, Frankston, the mortgagor being Cliff Road Pty Ltd. (CB 2137) This mortgage was executed by Mr Voitin as director and secretary of the mortgagor company Cliff Road Pty Ltd. The property was sold by a mortgagee believed by Mr Beiruti to be "Thomson Geer". The surplus funds raised by that sale, after paying out the first mortgagee, had not been released to GP or Mr Beiruti. According to Mr Beiruti, "they're considering not putting ... the funds into Supreme Court, so no funds have been pulled from Frankston." (T135, L26−30) It seems the first mortgagee took the stand because the mortgagor company had been deregistered. (T136, L1−4) A title extract appears to show the relevant first mortgagee not as "Thomson Geer" but as "Permanent Custodians Ltd". (CB 2138)

16 GP also obtained a mortgage from another Voitin company, Australian Rural Properties Pty Ltd, over the property at 60 Caldwell Street, Heathcote. (CB 2140−2141) As to the Frankston property, the Commissioner of Taxation appears to have required the withholding of some $230,000 relative to capital gains tax liabilities for non-residents. There was apparently no relevant non-resident, but the appropriate declarations were not made, with the result that the money had to be withheld. (T142, L11−17) An application made on behalf of GP to have those moneys released to it was refused by the Deputy Commissioner of Taxation. (CB 2124−2125)

17 On 21 February 2020, an application for summary judgment on behalf of GP and Mr Beiruti came on for hearing before Riordan J in the Supreme Court. (CB 130−5) This application was supported by a lengthy affidavit sworn by Mr Beiruti, together with exhibits. (CB 136−645) His Honour expressed himself as satisfied that a summary judgment should be granted. (CB 132, L21−24) There was no appearance on behalf of any of the defendants. (CB 131, L9−11) His Honour granted a variety of relief by his judgment dated 3 March 2020. In particular, he ordered Mr Voitin to pay GP and Mr Beiruti the sum of $3,245,000 together with interest at 9.5 per cent per annum from 8 June 2016 to 31 January 2017, and thereafter at the rate of 10 per cent, with a total interest liability of $1,192,578.07, with further interest accruing on the judgment against Mr Voitin at the rate prescribed under the Penalty Interest Rates Act 1983. (CB 124−129)

18 Mr Beiruti and GP sought payment of the judgment from the Fidelity Fund administered by the Victorian Legal Services Board, but the fund denied liability. (CB 2126−7; T146, L4−9)

19 It seems that Mr Voitin referred the Writ issued on behalf of GP and Mr Beiruti to the Solicitors' Indemnity Insurance Scheme. Following consultations between Mr Voitin and a partner of the firm Minter Ellison, the scheme declined to provide Mr Voitin with indemnity. (CB 2242A−2245A)

20 By order made 4 June 2020 the Federal Circuit Court of Australia (Judicial Registrar Gitsham) granted a sequestration order against Mr Voitin. Initially, the Trustee in Bankruptcy was a Mr Weston. He provided a report to creditors of 10 August 2020. Mr Weston observed that as at the date of the report Mr Voitin had not filed a statement of affairs. (CB 2052) He noted, however, that press reports indicated Mr Voitin had been wounded in a shooting incident at his residence in Kew. (CB 2051) Mr Weston, in these unsatisfactory circumstances, made his best estimate of the estate's position, estimating a deficiency of $4,631,579. (CB 2052) Mr Weston sent a circular to creditors dated 17 March 2021, noting that Mr Paul Allen of the firm PKF had been nominated by Mr Beiruti to replace Mr Weston as trustee of Mr Voitin's bankrupt estate. The change in trustee was to take effect on 31 March 2021. (CB 2110)

21 Mr Beiruti described a further encounter with Mrs Voitin which he said took place outside her farm at Swan Bay (on the Bellarine Peninsula) in 2019. He said he was able to identify this location because it is referred to on Mrs Voitin's website. (T151) Mr Beiruti said he was waiting outside the farm gates in the hope of encountering Mr Voitin. According to Mr Beiruti, he saw a white LandCruiser "exiting" [presumably from the farm]. The LandCruiser sped past him. He did a U‑turn, sped up and overtook the LandCruiser, saying: "Where's John?" Mrs Voitin replied, "He's not here." Mr Beiruti said, "He owes me money." She replied, "Rubi this is not a time and place for this, I've got kids in the car." Mr Beiruti said he responded, "Well, I don't really care who you've got in the car, you've taken food off my kids table, youse are thieves." He said Mrs Voitin told him she would have her husband ring him, though he never received the telephone call. (T152−3)

22 Mrs Voitin's description of this encounter was somewhat different. She agreed that she and Mr Beiruti met whilst she was driving a motor vehicle to exit the farm gate. She asked one of her sons, who was in the front passenger seat, to alight and open the gates. She drove the vehicle through and waited for her son to close and rechain the gate. She said it was July 2019, and Mr Beiruti had been observed parked for a period of hours outside the Swan Bay farm. According to Mrs Voitin, Mr Beiruti got out of his car and came over to her car window, motioning her to wind the window down. She said he called, "I need you to get out of the car, I have to talk to you," which she refused to do, she said, "because I was absolutely terrified." She said she told Mr Beiruti that she had her children in the car, but Mr Voitin was not at the farm, but rather was in Melbourne. Mr Beiruti said he would wait for Mr Voitin. She said she wound up her window and drove off, remaining out for two hours, longer than she had originally planned. When she returned, Mr Beiruti had departed. (T374−8)

23 As to the meeting at 143 Whitehorse Road said to have occurred in September 2016, she said the restaurant at 143 Whitehorse Road was at that stage operated by the company Scarvelli Pty Ltd and closed at 4.30pm on weekdays. The work in the cafe was largely done by employees, and she departed from the cafe premises "almost without exception by 3 o'clock". (T359−60) She said she did not attend any meeting with Mr Beiruti at 143 Whitehorse Road in September 2016.

24 She said the first time she "ever laid eyes on Mr Beiruti" would have been around late 2018. (T373, L11−14) She said she and her husband were travelling along Greythorn Road, North Balwyn, to shop at the Aldi supermarket, and had stopped to obtain some coffee first. They stopped their motor vehicle and alighted to obtain the coffee. Their car was parked at a 45 degree angle in accordance with the parking arrangement in that part of Greythorn Road, and Mr Beiruti parked his vehicle in the adjacent space. (T373, L17−31) Both Mr and Mrs Voitin were outside their vehicle, and Mr Beiruti called out to Mr Voitin. She said her husband told her that everything was under control, and asked her to proceed and order the coffee. Mr Voitin then had a conversation with Mr Beiruti which Mrs Voitin said she did not overhear. (T374, L2−10) The conversation lasted about 10 minutes. (Ibid, L11−12)

25 Having apparently exhausted all other avenues, Mr Beiruti and GP commenced the present proceeding.

26 According to the plaintiffs, the above narrative must be seen against the background of events which occurred some years earlier. On 28 September 2013, a headline article by Ben Butler appeared in the Sydney Morning Herald under the words "Tangled web of deceit, debt and lawsuits", "An alleged fraud ring seems to have run a sophisticated scheme ...". (CB 1529)

27 According to the article, "a sham loan made in September last year by a company controlled by Clare Sowersby [viz the defendant, Mrs Voitin], Mr Voitin's wife, was part of a scheme to wrest control of six nursing homes from Mr Snowden", who was described as "a convicted criminal who built part of his nursing home empire using $7 million he admits taking from Westpac by exploiting a flaw in the bank's systems".

28 The article described the "scam" in six steps accompanied by graphics:

(i) Business owner on the verge of bankruptcy hires John Voitin's firm, Voitin Lawyers.

(ii) Business owner enters into fake deal with Hong Kong-based company owned by Clare Sowersby (aka Clare Voitin);

(iii) Hong Kong company brings fraudulent lawsuit in Victorian Supreme Court but is not contested by the business owner, creating a legally enforceable judgment debt.

(iv) To avoid bankruptcy, business owners [sic] proposes a personal insolvency agreement to his creditors.

(v) Because the Hong Kong companies owed the most money, it dominates a meeting of creditors, making sure the agreement is approved.

(vi) Genuine creditors receive cents in the dollar and business owner retains control of the assets.

"The charge is one of many levelled against the Voitin network. Courts have heard that in order to protect the assets of financially troubled rich clients from creditors, the ring engineered millions of dollars worth of fraudulent lawsuits as well as hiding assets on behalf of troubled companies."

"John Voitin commutes to his city law firm Voitin Lawyers from the family home on a leafy street, around the corner from the small shopping strip on Whitehorse Road.

From the family home, Clare Voitin has registered Gulliver Jam, an accessories business that sells scarves, handbags, and jewellery."

31 The article described "Ms Sowersby" (viz Mrs Voitin) as having registered "her ownership of Athena Commodities and Trading, a company allegedly used to bring fictitious lawsuits in the Victorian Supreme Court". The article also referred to a solicitor, Mr Nixon, said to have filed proceedings on behalf of another Hong Kong company, "Mandamus". The article quoted counsel for a creditor of Mr Rullo as saying "that the alleged frauds struck at the integrity of the personal insolvency system". (CB 1529-1533)

32 On 11 October 2012, a company known as Athena Commodities and Trading Limited said to have been incorporated in Hong Kong, issued a Writ against Joseph Anthony Rullo. The Writ was issued by solicitor, Mr Simon Nixon. According to the Statement of Claim, Athena engaged Mr Rullo "to procure investment capital for [Athena]". It alleged that Rullo had failed to procure any investment capital. As a result, according to the Writ, Mr Rullo was indebted to Athena for $1,250,000, and judgment was sought for that sum. (CB 1706-1711)

33 A document styled "Overarching Obligations Certification" was filed in the same proceeding in the Supreme Court on 11 October 2012. The document purported to be signed by "Clare Sowersby, director for and on behalf of Athena Commodities and Trading Limited". The signatory certified "to the Court that I have read and understood the overarching obligations set out in sections 16-26 of that [Civil Procedure] Act and the paramount duty set out in section 16 of the [Civil Procedure] Act". (CB 1712) Judgment was entered in default of appearance against Mr Rullo and in favour of Athena for $1,250,000, together with $13,125 interest and $2,850 costs. (CB 1719)

34 As to the certification, Mrs Voitin said: "that appears to be my signature ... I don't remember whether I signed it or not". (T446, L11-13)

35 Section 41 of the Civil Procedure Act 2010 requires, as part of the process of commencing a proceeding, "each party", viz each party to the litigation, to provide a certificate in the form of the one filed here, stating that the litigant "has read and understood the overarching obligations and the paramount duty". The "paramount duty" is defined in s16 of the Act requiring, amongst others, litigants to be duty bound to the court "to further the administration of justice in relation to any civil proceeding in which that person is involved". The overarching obligations are set out in ss17-26.

36 Pertinently, s18 imposes an overarching obligation not to bring or continue proceedings which are frivolous, vexatious or an abuse of process, or do not have a proper basis judged by reference to available legal and factual material. Section 17 refers to an overarching obligation to act honestly, and s21 refers to an overarching obligation not to mislead or deceive.

37 Whilst neither distinctly admitting nor denying that she had signed the relevant certificate, Mrs Voitin admitted being ignorant of the purport of s41 of the Civil Procedure Act, and therefore ignorant of the purport and effect of the certificate which she appears to have signed.

38 This certificate and the proceeding to which it pertains was one of the allegedly "fraudulent" or "scam" proceedings referred to in Mr Butler's article in the Sydney Morning Herald. It was the proceeding which counsel for one of Mr Rullo's creditors told the Federal Court "struck at the integrity of the personal insolvency system".

39 That creditor filed a Summons in the proceeding by Athena Commodities against Mr Rullo seeking an order that the solicitor who filed the Writ and Mrs Voitin pay his legal costs on a full indemnity basis. (CB 724-5) A process server, Mr Tanner, swore an affidavit of service on 30 March 2015 that he served that Summons and a supporting affidavit by the creditor, Mr Cross, on Mrs Voitin at her residence at 31 Terry Street, North Balwyn. According to the affidavit, he asked the person he served "Are you Clare Maree Viotin [scil Voitin] also known as Clare Maree Sowersby?", and she replied in the "affirmative". (CB 1731)

40 This matter came before Lansdowne AsJ on 13 August 2015. Her Honour's order records Mrs Voitin as having been represented by Ms M Petronijevic, solicitor. Her Honour gave directions for a determination of the matter raised by Mr Cross' Summons.

41 On 3 August 2015, a document styled "Position Paper of Clare Voitin" was filed, purportedly on her behalf, by law firm "SBA Law". Ms Petronijevic, whom it will be recalled was recorded by Lansdowne AsJ as having appeared to represent Mrs Voitin in her court in August 2015, swore an affidavit of 9 August 2015 referring to settlement offers said to have been made. The affidavit stated in paragraph 4 "On 22 October 2015, the sum of $31,800 was paid to the trust account of Mr Cross' solicitors in accordance with the terms of the offer". On the same day, Lansdowne AsJ ordered that Mr Cross' application against Mrs Voitin be "discontinued". (CB 1799-1802) Once again, Ms Petronijevic is recorded as having appeared to represent Mrs Voitin.

42 With the sole concession that the certificate, or purported certificate, under s41 of the Civil Procedure Act appeared to bear her signature, Mrs Voitin denied knowledge of all these other matters, although she did concede she may have been served with documents by a process server. She denied outlaying $31,800. (T486, L21-24)

43 She denied that these events, or alleged events, occurred at a time of overwhelming pressure in her personal and business life which precluded her from being able to face them and take in their purport. (T481) She admitted being acquainted with Mr Sam Bond, apparently the principal of SBA Law. (T483)

44 As to the Hong Kong companies, Mrs Voitin said that she had them incorporated in Hong Kong as a favour to her husband whilst on a trip to mainland China relative to her jewellery business. She expected to complete the process in a single day, but it ended up taking three days to incorporate the two companies, Athena and Mandamus Commodities Limited. (T470, 472)

45 Mr Farrands, counsel for the plaintiffs, referred Mrs Voitin to an appearance entered in another proceeding, this time brought by Mandamus Commodities Limited against Keith Ralph Ondarchie and Anthony Thomas Dage, in which Mr Voitin's firm entered an appearance for Mr Dage on 30 June 2011. I asked if around that time Mr Voitin asked her, "What's happening here, Clare? Isn't that your company? Why is it suing my clients?" She denied any such conversation. (T472, L28-31)

46 These proceedings are plainly the ones referred to by Mr Butler in his Sydney Morning Herald Article.

47 On 12 October 2020, the Commonwealth Director of Public Prosecutions filed a Charge Sheet on Summons in the Magistrates' Court of Victoria, charging Mrs Voitin with some 13 charges of dishonesty, for the most part, jointly with her husband and, in some instances, with at least one other person arising, amongst other things, from the Supreme Court proceedings just described. Charge 1 alleged action carried out with the intent, or having the tendency, to pervert the course of justice in connection with the Mandamus Commodities Limited proceeding against Ondarchie and Dage, and referring in particular to an overarching obligations certification in that proceeding.

48 As to this Summons, Mrs Voitin said "I've read parts of it, but I don't understand it". (T411, L14-15) She said she believed it related to "me being a shelf director of a company or two companies". (Ibid, L22-23) She said that whilst she was legally represented, having moved from her initial law firm (perhaps because of a conflict of interest were that firm to represent both herself and her husband), she had not received any explanation from legal representatives as to the purport of the charges. (T414, L11-19)

49 Whilst the allegedly "sham" legal proceedings were playing out in the Supreme Court, Mr Voitin "had a date" at the Victorian Civil and Administrative Tribunal. On 22 October 2015, he appeared there before Senior Member Smithers. At that time, according to Mr Smithers' Reasons for Determination, Mr Voitin was carrying on practice under the style "Stanton Grant Legal". The Victorian Legal Services Commissioner had preferred over 100 charges against Mr Voitin and, by the time the matter came before Mr Smithers, Mr Voitin had agreed to plead guilty to 57 charges of professional misconduct.

50 The gravamen of the charges entailed admitted allegations that Mr Voitin had run monies relating to his own personal transactions relative to sheep sales, the rearing and training of horses for export, a racehorse syndicate, and a calf raising joint venture, and the lease of a residence for Mr Voitin's mother through his firm's trust account. This was found by the Tribunal to be prohibited mixing of trust funds. The Tribunal appears to have accepted that Mr Voitin's breaches were inadvertent and without the purpose or effect of defrauding any of his clients.

51 In accordance with the plea agreement, Mr Voitin was reprimanded and was made subject to a condition in his practicing certificate that he be not authorised to receive trust monies for a period of six months. He was also required to undertake study as to his obligations relative to trust accounts, obtaining three continuing professional development points in the ensuing 12 months. (CB 2351-2357)

52 In their statement of claim filed 1 October 2020, the plaintiffs said that, as testified by the orders of Riordan J in the Supreme Court, Mr Voitin had dealt with funds deposited with him by GP "in breach of his fiduciary duties". Some of these amounts were said to have been received by entities associated with Mr Voitin, namely Second Life Retirement Fund Pty Ltd, Albert Road Holdings Pty Ltd, and Property Transfers Pty Ltd.

53 The claim against Mrs Voitin was framed on the basis that in the period 8 June 2016 to 28 December 2016 Mr Voitin had transferred "at least $1,954,725" of the misappropriated funds by way of payment for travel expenses, school fees, entertainment etc, and by payment to accounts controlled by Mrs Voitin and her associated entities Scarvelli Pty Ltd, Scarvelli Holdings Pty Ltd, The Providore - Swan Bay Farm, or The Providore SBF Pty Ltd. These transfers by Mr Voitin were said to be in breach of trust. Consequently, a claim for "knowing receipt" of misappropriated trust funds was made against Mrs Voitin, as well as a claim for "knowing assistance" of Mr Voitin's breach of trust "and/or breach of fiduciary duty" which was said to be "dishonest and had a fraudulent design". Mrs Voitin's knowledge was said to be of the following type:

"(a) with actual knowledge of the breaches of trust and breach of fiduciary duty as aforesaid; and/or

(b) wilfully shut her eyes to the obvious as regards those breaches;

(c) wilfully and recklessly failed to make such inquiries as an honest and reasonable person would have made in relation to those breaches;

(d) with knowledge of the circumstances which would have indicated the breaches aforesaid to an honest and reasonable person."

54 The claim was for equitable compensation in the sum of $1,954,725 and consequential relief. There was also a claim for unjust enrichment based on the same factual substratum.

55 At the outset of trial, I granted leave to the plaintiffs to file and serve an amended statement of claim. (CB 2261−2267) This amended statement of claim was largely devoted to scaling back the plaintiffs' claim against Mrs Voitin. The claim for "knowing assistance" was deleted, as was the claim for "unjust enrichment". Equitable compensation in the sum of $1,526,088.70 was claimed in lieu of the larger sum sought in the original statement of claim. With a couple of minor exceptions, the money or "benefits" said to have been knowingly received by Mrs Voitin were confined to receipts said to have occurred via John Voitin controlled companies Goornong Pastoral Company Pty Ltd and Property Transfers Pty Ltd.

56 Messrs Connors and Gorton of counsel, who appeared on behalf of Mrs Voitin, determined it was unnecessary in the circumstances to file and serve an amended defence to the amended statement of claim. They were content to take their stand upon the defence filed in response to the original statement of claim. They admitted the effect of the determination by Riordan J in the Supreme Court proceedings.

57 Insofar as the Statement of Claim and Amended Statement of Claim alleged receipt of moneys by persons other than herself, Mrs Voitin did not admit such receipts. As to receipts from Goornong Pastoral Pty Ltd and Property Transfers Pty Ltd, she did not admit them. She said that purchases alleged to have been made on her behalf by Mr Voitin could not be characterised as transfers. As to the balance, she either denied or declined to admit the allegations. In particular, she denied an allegation in paragraph 10 of both the original and the amended statement of claim as to the meeting said to have occurred between Mr Voitin, Mrs Voitin and Mr Beiruti in late 2016 at 143 Whitehorse Road.

58 I recently had occasion to consider the law relative to the liability of third parties for breach of fiduciary duties by a trustee. I take the liberty of reproducing what I there said:

"[122] In 1874 the Court of Appeal in Chancery in England considered the liability of third parties relative to trust breaches committed by the relevant trustee. In a passage which has been endlessly referred to and quoted in the 150 years since, Lord Selborne LC said:

'Now in this case we have to deal with certain persons who are trustees, and with certain other persons who are not trustees. That is a distinction to be borne in mind throughout the case. Those who create a trust clothe the trustee with a legal power and control over the trust property, imposing on him a corresponding responsibility. That responsibility may no doubt be extended in equity to others who are not properly trustees, if they are found either making themselves trustees de son tort, or actually participating in any fraudulent conduct of the trustee to the injury of the cestui que trust. But, on the other hand, strangers are not to be made constructive trustees merely because they act as the agents of trustees in transactions within their legal powers, transactions, perhaps of which a Court of Equity may disapprove, unless those agents receive and become chargeable with some part of the trust property, or unless they assist with knowledge in a dishonest and fraudulent design on the part of the trustees. Those are the principles, as it seems to me, which we must bear in mind ...' (Barnes v Addy, [1874] UKLawRpCh 20; (1874) LR 9 Ch App 244, 251−2)

[123] On the basis of his Lordship's analysis just quoted, liability for breaches of trust by third parties who are regarded as accessories to such breaches of trust is said to exist in two circumstances:

(a) where the third party knowingly receives property dealt with by the trustee in breach of trust, known for short as "knowing receipt", and

(b) where the third party knowingly assists in a dishonest breach by the trustee, known as "knowing assistance".

[124] 133 years later, in the 21st century and in the new millennium, the High Court of Australia analysed these matters according to the same framework adopted by Lord Selborne in Barnes v Addy: see Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89. In that case, a unanimous five Justice bench reasserted Lord Selborne's framework and analysis as the appropriate means of resolving disputes as to these matters. According to their Honours Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ:

'It has become common to describe the first limb [of the liability described by Lord Selborne] as involving 'knowing receipt' and the second limb as involving 'knowing assistance'. Lord Selborne LC did not use the expression 'knowing receipt'. It seems to have been employed first in 1966 by the editors of Snell's Principles of Equity.' (2007) 230 CLR 89, 140−1 [112]

[125] Their Honours held that in the case before them, rejecting the reasoning below by the New South Wales Court of Appeal, there had been no knowing receipt of trust property. The alleged "property" was information as to the development potential of certain land. According to the High Court, this was essentially in the public domain and capable of being acquired by a persistent enquirer of the relevant council planning officers. (2007) 230 CLR 89, 143 [117]

[126] Turning to the second limb of liability described by Lord Selborne, their Honours said:

'As conventionally understood in Australia, the second limb makes a defendant liable if that defendant assists a trustee or fiduciary with knowledge of a dishonest and fraudulent design on the part of the trustee or fiduciary.' (2007) 230 CLR 89, 159 [160]

[127] As to what constituted dishonesty for the purposes of this analysis, their Honours said:

'As a matter of ordinary understanding, and as reflected in the criminal law in Australia, a person may have acted dishonestly, judged by the standards of ordinary, decent people, without appreciating that the act in question was dishonest by those standards. Further, as early as 1801, Sir William Grant MR stigmatised those who 'shut their eyes' against the receipt of unwelcome information.' (2007) 230 CLR 89, 162 [173]

[128] Their Honours noted that in the English case Baden v Société Générale pour Favoriser le Développement du Commerce et de l'Industrie en France SA [1993] 1 WLR 509, 575−6, the concept of knowledge was analysed as follows:

'(i) actual knowledge; (ii) wilfully shutting one's eyes to the obvious; (iii) wilfully and recklessly failing to make such inquiries as an honest and reasonable man would make; (iv) knowledge of circumstances which would indicate the facts to an honest and reasonable man; (v) knowledge of circumstances which would put an honest and reasonable man on inquiry.'

[129] The High Court concluded that any of those first four categories was "sufficient to answer the requirement of knowledge in the second limb of Barnes v Addy". (2007) 230 CLR 89, 363 [177] Category (v) knowledge would not be sufficient. Their Honours continued, saying that a "dishonest and fraudulent design" for the purposes of the second limb of liability under Barnes v Addy extended to include "not only breaches of trust but also breaches of fiduciary duty; but any breach of trust or breach of fiduciary duty relied on must be dishonest and fraudulent." (2007) 230 CLR 89, 164 [179]"

(Chen v Eumeralla Estate Pty Ltd [2021] VCC 453)

59 In the present case, as noted above, the plaintiffs' claim is based on alleged breach of the first limb of Barnes v Addy, viz "knowing receipt". Paragraph 11 of the amended statement of claim, which alleges the "receipt" of misappropriated trust property by Mrs Voitin, extends not only to receipt of trust property by way of monetary payments but also to what are defined as "Benefits".

60 In the outline of their opening submissions, Mr Connors and Mr Gorton for the defendant denied that the cause of action for "knowing receipt" could extend to the receipt of "benefits" as distinct from property, whether in the form of money or otherwise. They referred to the joint judgment of Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 145 [121], where their Honours repudiated a proposed change to Australian law on this subject so that the "knowing receipt" cause of action might render liable "a third party who has directly received a financial benefit as a result of a non-trivial breach of trust or fiduciary duty ..." Their Honours said that this proposed change of the law substituting that statement of principle for the first limb of Barnes v Addy "would be a radical change: it abandons the requirement for receipt of property ..."

61 Mr Farrands, for the plaintiffs, in response observed that the Court's analysis and rejection of the proposed change to the law was made in the context of rejecting the contention that allegedly confidential information could, in the circumstances before their Honours, be regarded as "property" for the purposes of the "knowing receipt" cause of action. Inferentially, he contended that where no receipt of information, confidential or otherwise, were in question, the Court's strictures against unjustified change would not be applicable. He said that an unreported decision of the Supreme Court of South Australia in Artcraft Pty Ltd v Dickson [2014] SASC 108, a decision of Kelly J, illustrated how the "knowing receipt" cause of action could extend to "benefits". He said this could be seen from an analysis of the reasoning of her Honour in sustaining the claim against Mrs Dickson. He noted that at [207] her Honour, in sustaining the claim against Mrs Dickson, said:

"On the plaintiffs' case it must have been abundantly clear to Mrs Dickson that the family expenses far exceeded the family's legitimate income and at the very least she ought to have been on notice in the sense that she ought to have enquired as to the source of those funds. Absent an explanation from Mrs Dickson, I have been invited the [sic] draw an inference that the unexplained deposits into the various accounts are part of the stolen proceeds and further that she and Mr Dickson received the benefit of those stolen proceeds."

62 At paragraph [219], her Honour stated the first issue as to Mrs Dickson's liability as:

"whether she did in fact receive any cash or benefit from Mr Dickson's conversion of the plaintiffs' property, and the second ... if it is proved that she did receive cash or benefit, whether she had the requisite state of knowledge for liability as a recipient of those funds under the first limb of Barnes v Addy."

63 The plaintiffs' case here is that Mrs Voitin, aside from any cash receipts, also received benefits by way of payment of bills for outlays such as school fees and farm expenses.

64 Upon analysis, in the context of the present dispute, the question as to whether the "knowing receipt" cause of action extends to "benefits", rather than merely to the receipt of property, turns out to be a non-issue.

65 Where a bank or other financial institution outlays the bank's money to enable one of its customers to purchase a house, unless the moneys are drawn against a credit balance held by the customer the transaction is analysed as being a loan from the bank to its customer, and this despite the fact that in a traditional conveyancing transaction the money in question passes directly from the bank to the vendor of the house, or perhaps to the vendor's mortgagee. The money is advanced no more than constructively to the purchaser/bank customer. The High Court has held that cash flows which are recorded or constituted only by book entries or constructive remittances are nevertheless to be treated as real cash flows and be accorded the same status as such: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471.

66 Accordingly, if the evidence establishes that trust funds or their traceable proceeds were outlaid to meet a liability of Mrs Voitin, then this transaction could be regarded as a loan to her if there was an expectation that the money outlaid to meet the price were to repaid by her, or as a gift if there were no such expectation. In either case, however, this could be regarded as a "receipt" of property in the form of money by her.

67 Again, as Mr Connors and Mr Gorton observed in closing submissions, the result reached in the Artcraft case did not require any extension of the scope of the cause of action for "knowing receipt". Upon the findings made by her Honour, trust moneys or their traceable proceeds found their way into an account owned jointly by Mr and Mrs Dickson. This fact in itself constituted a "receipt" of property in the form of money by Mrs Dickson without resort to any extended form of the cause of action for "knowing receipt". Indeed, if her Honour were seeking to broaden the basis for the "knowing receipt" cause of action, it would have been at odds with the High Court's emphatic reiteration of the traditional boundaries of the cause of action in the Say-Dee case.

68 In at least one instance in the present case, money which might be thought to be the traceable proceeds of GP's capital investment found its way into a joint account of Mr and Mrs Voitin. Mr Connors and Mr Gorton conceded that this could be regarded as a "receipt" for the purposes of the "knowing receipt" cause of action, referring to the decision of the High Court of Australia in National Commercial Banking Corporation of Australia Ltd v Batty [1986] HCA 21; (1986) 160 CLR 251, 268−9 per Gibbs CJ, with whom Wilson and Dawson JJ concurred. His Honour said, however, that where moneys were paid into an account without the knowledge of an account holder and without him or her having received any benefit for it, no liability for such money would attach. The issue therefore would be not whether there had been a "receipt", but whether the requisite knowledge accompanied the receipt.

69 I should also say something as to the quantum of proof as to matters of "knowing receipt". I also dealt with this issue in Chen v Eumeralla Estate Pty Ltd [2021] VCC 453, and I again take the liberty of quoting what I said in that case.

"[163] ... Whilst the quantum of proof remains on the balance of probabilities, these are grave matters, and the gravity of what is alleged must be taken into account in considering whether the allegations [are made out] ... - see s140 of the Evidence Act 2008. Whilst this section might be regarded as having codified the law on these issues, in my experience the seminal judgment of Dixon J, as he then was, in Briginshaw v Briginshaw (1938) 60 CLR 336, continues to be regarded as providing authoritative guidance on these points. In Briginshaw the issue was the proof, for the purposes of a divorce application, of an allegation of adultery. In that case his Honour denied that there was any third quantum of proof standing between the balance of probabilities in civil proceedings and proof beyond reasonable doubt in criminal proceedings. He said:

'Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.' (1938) 60 CLR 336, 361−2

[164] His Honour summed these matters up, stating:

'When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues ... But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.' (1938) 60 CLR 336, 363"

70 I will approach the making of findings on the issue of "knowing receipt" in accordance with these principles.

71 The necessary first component requiring proof to establish the cause of action for "knowing receipt" is the "receipt" of trust property or its traceable proceeds. In the present case, the plaintiffs sought to prove "receipt" by Mrs Voitin principally by reliance on a report from forensic accountant, registered liquidator and bankruptcy trustee, Mr Michael Carrafa, which, including its annexures, occupied pages 655-1494 of the Court Book.

72 Mr Carrafa's report supports the contention that nearly all of the payments the subject of the present claim against Mrs Voitin for "knowing receipt" should be regarded as having been received by her. This generally favourable opinion, however, came with significant provisos. At paragraph 8.11 (CB 678), Mr Carrafa said:

"Conversely, subject to receiving further evidence, I am unable to opine, with certainty, that John and/or Clare (whether jointly or severally) received any benefit from the relevant funds that relate to the GP Building Funds."

73 At paragraph 9, he stated a need for the assembly of further evidence to advance matters to a greater state of certainty. According to paragraph 9.1 of the report, he said:

"In order to arrive at any conclusion as to whether John and/or Clare received any personal benefit from the GP Building Funds, I require the following further evidence (without limitation):

• Copies of the relevant bank/personal cheques of the relevant entities, John and Clare;
• Full particulars as to the nature the payments made to the relevant payees;
• Name of the relevant credit/debit cardholder of Property Transfers and/or Goornong Pastoral;
• Name of the registered signatories to each of the Related Entities' bank accounts;
• Documentation including, but not limited to, specific loan agreements with various other parties to support payments made."

74 For the most part, these further pieces of evidence have not been gathered, and the further enquiries have not been undertaken. The plaintiffs' allegation of receipt against Mrs Voitin proceeds, therefore, from a somewhat uncertain basis.

75 The obvious starting point for a consideration of these matters is consideration of amounts alleged to have been paid directly to the defendant in cash. Mr Carrafa analysed the bank statements of Mrs Voitin for the period 1 July 2016 to 31 December 2016, the only period for which she made discovery. His investigations disclosed a payment to her of $10,000 on 8 August 2016 from Goornong Pastoral Pty Ltd. (CB 2263A) Likewise he identified a payment of $10,000 from Goornong to Mrs Voitin on 17 October 2016 (CB 1483) described as "loan repayment" and a further payment of $5,000 also designated as loan repayment on 20 October 2016 (ibid). This latter payment does not seem to be the subject of a claim under paragraph 6(b) of the statement of claim, which includes a table of payments and refers to "payment to accounts controlled by [Mrs Voitin] and her associated entities Scarvelli, Scarvelli Holdings and The Providore, in the amount of at least $229,618 for the benefit of [Mrs Voitin]". Mr Carrafa concluded that of the $3,245,000 received into the Stanton Grant Legal trust fund on or around 13 May 2016, $3,206,500 was transferred to Second Life Retirement Fund and thence in the sum of $500,000 to Goornong Pastoral. (CB 664, 669)

76 The next group of payments to which I will turn were made into an account designated as "The Providore". Mr Carrafa found:

"The Providore directly received a sum of $70,000.00 of the GP Building Funds",

viz, the trust funds misappropriated by Mr Voitin. (CB 663) A footnote to this statement, however, records:

"I have not been provided with any bank statements for The Providore and an assumption has been made based on the description appearing on the relevant entities' bank statements."

77 These payments were made in the course of 2016. According to the dictionary of terms used in the Carrafa report, which appears at CB 659, the expression "The Providore" means "The Providore SBF Pty Ltd (Deregistered) ACN 616 274 330". An annexure to the Carrafa report, however, includes an ASIC search of the company "The Providore SBF Pty Ltd" indicating that it was registered on 5 December 2016. (CB 714) The payments referred to by Mr Carrafa took place before that company was incorporated. Mr Carrafa's report therefore cannot be taken literally as an indication that the company received the $70,000. The descriptor appearing on the relevant payments was "The Provid". Mrs Voitin in her evidence said that she did not recognise the account number that went with the descriptor "The Provid". At the relevant time, late 2016, Mrs Voitin was the registered owner of the business name "The Providore Swan Bay". I pressed her on this point (T538, L17−31), and she replied:

"I can only assume that if it's a payment made to [T]he [P]rovid, that it was made to me in some way, shape or form, but I don't recognise the account that it was paid to." (T539, L2−5)

78 In closing submissions, Mr Farrands contended that this should be regarded as an admission that the payments made to "The Provid" were received by Mrs Voitin.

79 Mr Connors and Mr Gorton said that the answer quoted above ought not to be regarded as an admission of receipt of the relevant moneys by Mrs Voitin. They emphasised her repeated statement that she did not recognise "the account", presumably the account number, as being the significant element in the exchange.

80 Mrs Voitin, to use popular language, was cross-examined "up hill and down dale". She showed herself astute and skilful, and admitted and conceded very little. In that context, I regard the answer quoted above as a significant concession on her behalf, sufficient to justify a finding that Mrs Voitin received that $70,000.

81 I turn next to the question whether it should be found that sums of money paid to companies which Mrs Voitin controlled, such as Scarvelli Pty Ltd and Scarvelli Holdings Pty Ltd, should be regarded as having been received by her.

82 In their closing submissions, Mr Connors and Mr Gorton said:

"Monies received by Scarvelli were not monies received by the defendant. The Court may determine that in circumstances where the defendant was sole member and director of Scarvelli such payments were substantially received by her, but no knowledge can arise where the payments were made after request to Mr Voitin and the payments bear no information regarding the source except that they were from Mr Voitin." (Paragraph 105(c))

83 That submission I read as a concession that receipt by a company the sole member of which was Mrs Voitin was the equivalent of receipt by Mrs Voitin. Mr Connors and Mr Gorton then contend, however, that such receipt was not "knowing". I will turn to the issue of "knowing" in due course. For the moment, it would seem that receipt by Scarvelli is accepted as being equivalent to receipt by Mrs Voitin. Paragraph 6(b) of the amended statement of claim refers to a payment of $5,000 received by Scarvelli from Australian Rural Properties Pty Ltd. Mr Carrafa concluded that Australian Rural Properties Pty Ltd received $159,070 from Stanton Grant, representing part of the funds lodged with that firm by the plaintiff GP Building. (CB 667, paragraph 4.5) This receipt by Scarvelli from Australian Rural Properties Pty Ltd therefore represents a receipt of misappropriated trust funds by Mrs Voitin. Some $15,000 worth of the remittances to "The Provid" came via Australian Rural Properties.

84 Once again, in paragraph 4.5 of his report, Mr Carrafa concludes that Property Transfers Pty Ltd received some $880,000 of misappropriated trust funds. (CB 667, paragraph 4.5) Therefore, the $25,000 paid to "The Provid" via Property Transfers Pty Ltd would appear to be receipts of misappropriated trust funds received by Mrs Voitin.

85 In accordance with what I have said above, a payment of $15,000 made on 1 July 2016 to an account held in the joint names of Mr and Mrs Voitin via Property Transfers should be regarded as having been received by Mrs Voitin. As with all such payments, it remains to consider the issue as to whether such receipt was "knowing", a matter to which I will turn later.

86 More difficult issues in establishing "receipt" arise in considering that issue relative to paragraph 6(a) of the amended statement of claim where it is contended that Mr Voitin "caused to be transferred ... at least $980,000 to Property Transfers and at least $980,000 to Goornong Pastoral Pty Ltd" applied in:

"payment for inter alia travel expenses, school fees, entertainment, the repayment of credit card debt, utilities, rates, household goods and groceries, upkeep of horses and sheep, medical expenses, lingerie, clothing, petrol, car repayments and gym memberships ... for the benefit of [Mrs Voitin] and himself."

87 Mr Farrands took Mrs Voitin through a multitude of items said to relate to these things. She did not, as best I can recall, concede much, if anything. She generally denied knowledge or understanding of these matters, since they represented outlays by companies of which she was neither a director nor a shareholder. Such denials were not entirely implausible. Mr Carrafa said:

"• Goornong Pastoral utilised a sum of $946,088.70 of the GP Building Funds for what appears to be expenses of private nature or for other purposes that cannot be identified;

• Property Transfers utilised a sum of $475,000.00 of the GP Building Funds for what appears to be expenses of private nature or for other purposes that cannot be identified". (CB 662, paragraph 1.11.3)

88 Once again, Mr Carrafa's statement that the outlays were "of private nature or for other purposes that cannot be identified" is unpromising for the plaintiffs' case. The companies in question were companies owned by Mr Voitin of which the defendant, his wife, was neither a shareholder nor a director. The ordinary expectation, one would suppose, is that private outlays by a company would be expected to be private outlays for the benefit of its director/shareholder, in this case Mr Voitin, not Mrs Voitin.

89 One matter that was raised by counsel for the defendant at the outset was that in so far as expenditures by way of school fees were identified relative to Trinity Grammar School, Mrs Voitin's children attended a Catholic primary school at Deepdene and Xavier College and its junior school Burke Hall, not Trinity Grammar. (T355, cf T45, L10−18) The evidence did not establish any connection between Mrs Voitin and Trinity Grammar, so the allegation of her receiving trust property in the form of outlays on school fees does not appear to have been made out.

90 In his closing submissions, paragraphs 105−133, being "Annexure A", Mr Farrands sought to summarise the evidence which he said made good the contention that expenditures in the sum of $946,088.70 by Goornong Pastoral Pty Ltd and $475,000 by Property Transfers Pty Ltd constituted, in substance, receipts of trust property. He said that the analytical approach which should be adopted was to be found in the judgment of Allsop ACJ (as he then was) in Heperu Pty Ltd v Belle [2009] NSWCA 252; (2009) 76 NSWLR 230, in the Artcraft case, and in Toksoz v Westpac Banking Corporation [2012] NSWCA 199; (2012) 289 ALR 577. The problem here for the plaintiffs, as previously noted, is establishing that what are, one might think, fairly plainly private expenditures by the relevant companies, those private expenditures should be regarded as, or proven to be, for the benefit of Mrs Voitin rather than the companies' owner and controller, Mr Voitin.

91 In Heperu's case, Allsop P (referred to in the New South Wales Law Reports as the President of the Court of Appeal rather than the Acting Chief Justice), together with Campbell JA and Handley AJA, considered the liability of the wife of a fraudster who had misappropriated moneys lodged for investment. The Court found that the fraudster's wife was an innocent volunteer rather than a knowing receiver of misappropriated funds. The Court found that the wife was nevertheless bound in equity to restore to the true owner the proceeds of the misappropriated funds that could be traced into her real estate as at the date she received notice of the claim or became aware of the fraud. Mr Farrands did not provide any specific reference to parts of his Honour's judgment. However, in relation to the other authority on which he relied, namely Toksoz v Westpac Banking Corporation [2012] NSWCA 199; (2012) 289 ALR 577, he referred to three paragraphs from Justice Allsop's judgment whilst he was Acting Chief Justice of New South Wales:

"[8] In para 21A (after the deposits of the six sums into the Perpetual account were recited) it was alleged that the appellants had suffered loss and damage as a consequence of Mr Cincotta's breach of duty and trust pleaded in para 21 being the withdrawal by him (or Morgan Brooks) of moneys of the appellants and the placement of that money in the Perpetual account.

[9] In paras 22 and 23, it was alleged that between August 2001 and December 2003 all the funds in the Perpetual account were withdrawn and placed in the Westpac account. The allegation was that this was done by Mr Cincotta and/or Ms Belle. One particular withdrawal of $1 million was alleged to have been made from the Perpetual account and placed into the Westpac account on 17 February 2003 (see para 22). It was then alleged in para 24 that on 18 February 2003, the sum of $1 million was withdrawn from the Westpac account. It was common ground at the trial that this latter withdrawal was paid to the appellants.

[10] In para 25, it was alleged, relevantly, that neither Mr Cincotta nor Ms Belle gave consideration for the transfers into the Perpetual account." ((2012) [2012] NSWCA 199; 289 ALR 577, 579−80)

92 In summary, I take Mr Farrands to be indicating that a "broad brush" approach to fact-finding in this area may be justified. Mr Farrands was particularly critical of Mrs Voitin's credibility as a witness, contending that many of her denials and assertions of lack of knowledge were incredible. He also noted an alleged failure on her part to produce further documentary evidence or to call her husband as a witness who could have shed light on these matters. He relied on the High Court's decision in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, inviting me to draw adverse inferences on this ground.

93 Even making every allowance for the "broad brush" approach advocated by the now Chief Justice of the Federal Court of Australia in Heperu's case and Toksoz's case, there are difficulties in accepting its application to the present situation. Here the problem is not a lack of "links" in the flow of property or money so that an inflow of property and money is demonstrated for Mrs Voitin and an outflow for the plaintiffs, leading to the inference that the property the subject of the outflow was also the property the subject of the inflow, even without every step in the process of transmission being proven. Rather, the problem here is difficulty in concluding that property, money, or "benefits", however one wishes to characterise the matters relied on and claimed under paragraph 6(a) of the statement of claim, have reached Mrs Voitin at all.

94 The first transfer dealt with specifically by Mr Farrands, at paragraph 110 of the annexure, related to outlays to travel to Vanuatu. Mr Farrands said that the outlays attributable to a trip to Vanuatu in June 2016 undertaken by Mr and Mrs Voitin and their three sons should be treated in their totality and in the sum of $30,847.20 as trust funds received by Mrs Voitin.

95 Mrs Voitin said in her evidence-in-chief that she undertook this trip with her husband and three boys because Mr Voitin had business in Vanuatu and it was convenient to combine his business trip with a holiday trip for her and the children. (T365−7) In cross-examination, Mr Farrands took Mrs Voitin to CB 2358, a record of travel by Mr Voitin obtained by his bankruptcy trustee. It recorded a trip in April 2016 and another in June 2016. (T547, L16−21) Mrs Voitin said:

"I pretty much spent the entire time with the kids while John was ... doing business and then we would catch up after at the end of the day." (T547, L31-T548, L2)

96 These outlays are claimed to have been made by Property Transfers Pty Ltd. (CB 2266A) Nothing in the evidence allows me to make an exact breakdown as between the five persons who travelled to ascertain which expenditures are attributable to Mrs Voitin. Both Mr and Mrs Voitin had an obligation of upkeep to the children, so it would be wrong to attribute any share of expenditure relevant to their three sons to Mrs Voitin alone. In the circumstances, I believe I should regard Mrs Voitin as having received, via Property Transfers, trust funds to the extent of $15,000 relative to the June 2016 trip to Vanuatu.

97 Mr Farrands correctly observed that Mrs Voitin had conceded having no or minimal taxable income in the years 2014−2016. He referred to T586, L18−21.

98 Next, Mr Farrands referred to payment made for Citibank credit cards and National Australia Bank credit cards in the sums of $13,819.06 and $8,000.00. He referred to CB 2266A; T551, L5−23; correctly observing that Mrs Voitin denied knowledge of those credit cards. Mr Farrands submitted that I should infer that these were private expenses for the Voitin family "and that Clare did receive a benefit". (Paragraph 115, Annexure A to closing submissions.) The basis for me to infer that, he said, was to be found at paragraph 88 of his closing submissions, where he observed that the total expenditure of trust funds by Mr Voitin "was over 300 times the combined anticipated taxable income of Clare and John between 2014-2016." He then proceeded to make observations as to how Mrs Voitin ought to have been put upon enquiry by this consideration. The logically anterior question is, did she receive trust property in that amount? It is only if that question is resolved in the affirmative that the issue as to whether the receipt was "knowing" arises.

99 In a general sense, I am prepared to infer that the outlays on the credit cards were "private expenditure" (though credit cards are used for "office expenditure", particularly in small organisations). Given what Sir Owen Dixon said in Briginshaw v Briginshaw about the need to avoid "inexact proofs" and to have regard to the presumption of innocence when considering matters such as these, it is not appropriate to make a finding of receipt by Mrs Voitin with respect to these amounts. This was one of the matters which Mr Carrafa said should have been the subject of further investigation but which was not, it seems, followed up.

100 Next, Mr Farrands referred to a series of expenditures relative to a company called Cliff Road Pty Ltd, Valerie Joan Davis and Ken & Vale (presumably Valerie). (Closing submissions, paragraph 116−117) He noted Mrs Voitin's denial of knowledge of those matters. (T405, L14−15; T407, L8−9) Mr Farrands said at paragraph 117 of his closing submissions:

"because the evidence at trial showed that Athena (and accordingly Clare) knew of the above parties, by making interest payments to Ken and Valerie Davis in relation to Cliff Road in May 2014."

101 Mr Farrands took Mrs Voitin to a record from the Voitin Lawyers "practice trust account" being a payment on behalf of "Athena Commodities & Trading Ltd" relative to litigation in the sum of $4,332.75. There was no further clue as to who Ken and Valerie Davis are. Having regard to what I said a moment ago about Briginshaw v Briginshaw, it is not appropriate to infer, based on this evidence, that a payment to Ken and Valerie Davis constitutes a receipt of trust property or "benefit" to Mrs Voitin.

102 Once again, based on Mr Farrands' observation as to the admittedly meagre extent of the Voitins' taxable income as reported to the Commissioner of Taxation in the years 2014−2016, he invited me to conclude that some six items of private expenditure referred to at paragraph 118 of his closing submissions and identified at CB 2262A−2268A were receipts of trust property by Mrs Voitin. These payments came via Goornong Pastoral Company and Property Transfers Pty Ltd. For reasons already explained, I accept that these payments can be regarded as trust property or the proceeds of trust property under the tracing principles. The companies that made these outlays, however, were not under Mrs Voitin's control. Rather, they were under Mr Voitin's control. The more obvious inference to draw is that these outlays were for his benefit. Mrs Voitin owned a farm property at Swan Bay. I am prepared to infer that a sum of at least $1,419.10 referred to at sub-paragraph (c) of paragraph 118 of Mr Farrands' closing submission represents a receipt of trust property via Mrs Voitin.

103 Mr Farrands referred to an outlay of $15,000 by Property Transfers. (CB 2267A; T558−560) This would appear to be the payment into a joint account of Mr and Mrs Voitin referred to above. As already explained, I accept this as being a receipt of trust properties by Mrs Voitin.

104 Mr Farrands then referred to two cheques drawn by Property Transfers Pty Ltd on its account at Bendigo Bank, being cheques 253 and 254. (CB 1518−1519) These cheques were drawn as to No 253 on 27 July 2016, and as to No 254 it would appear on 29 July 2016. The cheques were for $10,000 and $2,000 respectively. At paragraph 120 of his closing submissions, Mr Farrands refers to these cheques being dated 2 August 2016, which does not appear to be correct. He invited me to infer that these represented receipts of trust property by Mrs Voitin. I accept, based upon the tracing exercise conducted by Mr Carrafa, that these cheques should be regarded as representing trust property or the traceable proceeds thereof. Given that they are payable to Mr Voitin rather than Mrs Voitin, I do not regard it to be appropriate, in the absence of further evidence, to treat them as receipts by Mrs Voitin.

105 Mr Farrands then turned to a cheque in the sum of $16,875. This appears to be an outlay by Property Transfers Pty Ltd to SBA Lawyers. Mr Farrands noted that the principal of SBA, Mr Sam Bond, was known to Mrs Voitin and had been involved on her behalf in the Rullo litigation and provided advice on a defamation matter. With some hesitation, I accept that this outlay should be regarded as a receipt of trust funds by Mrs Voitin.

106 Mr Farrands also referred to purchases at Scarvelli restaurant on 2, 4 and 7 August totalling $523.70. For the same reasons as indicated earlier, namely that Mrs Voitin was the sole member of Scarvelli Pty Ltd, this outlay can be regarded as a receipt of trust moneys by her via Property Transfers Pty Ltd. (Closing submissions, paragraph 122)

107 Mr Farrands also said that outlays via Property Transfers Pty Ltd in August 2016 relative to a number of restaurants which were in close proximity to the Swan Bay farm or the Deepdene family residence totalling $724.50 should be regarded as outlays giving rise to a receipt of trust property. For reasons already explained, I accept that the $724.50 can be regarded as trust property or the traceable proceeds thereof. Given that Property Transfers Pty Ltd was not Mrs Voitin's company, it is drawing too long a bow to conclude that these outlays represented the meeting of a liability owed by her.

108 Mr Carrafa in his report noted that Mrs Voitin's bank statements indicated that she patronised the establishment "Bed Bath N' Table". (CB 678) Therefore, Mr Farrands invited me to find that the outlay of $189.90 at "The Works-Bed Bath, Hawthorn" on 12 August represented payment for a purchase which she made. In my view this represents a reasonable inference, and I so find.

109 At paragraph 125 of his closing submissions, Mr Farrands said I should find "that Clare received a benefit from the expenditure of $2,500 in private debts and purchases and $301.59 in miscellaneous travel purchases" via Property Transfers Pty Ltd. Given that this was Mr Voitin's company, and Mrs Voitin gave evidence and was not challenged on the point that Mr Voitin travelled extensively, the more obvious inference to draw is that these amounts were for his benefit. Therefore, I decline to make the finding which Mr Farrands invites me to make.

110 I cannot accept Mr Farrands' contention that Goornong Pastoral Company "was a company for the Voitin family benefit" with the apparent implication that a receipt by Goornong was the equivalent of a receipt by Mrs Voitin. The evidence showed that Mr Voitin was the shareholder and director, not Mrs Voitin. Mr Farrands referred at paragraph 127 of his outline of closing submissions to the fact that Goornong owned a property known as "Betty's Farm" in Avonmore, and another property known as "Millmans" in the same area. There has been little or no evidence connecting Mrs Voitin to those properties. Mr Farrands said:

"the evidence suggested that John ran a flock of Maladorn Dorper Sheep, in which Clare had an interest, from these properties". (Emphasis added)

111 Mr Farrands also referred to a guarantee and indemnity and guarantee mortgages granted by Clare for loans relative to Goornong. (CB 2007−2032) The guarantee and mortgage are readily explicable by the desire of a wife to assist her husband. In themselves they do not establish the proposition, which I have accepted in the case of Scarvelli Pty Ltd, that a receipt by Goornong is the equivalent of a receipt by Mrs Voitin.

112 As to Mrs Voitin's Swan Bay property, Mr Farrands drew attention to inconsistencies in her evidence, or inconsistencies with material in the Court Book: some indicating that the Swan Bay property was a commercial venture, others that it was a mere "lifestyle" block. As to some of the written material, Mrs Voitin described it as "feelgood", which I took to mean that it was mere puffery or "hot air". Ultimately, in my view, it does not matter whether the Swan Bay property is to be regarded as a commercial venture on the one hand or a lifestyle exercise on the other. Whichever it was, the evidence indicates that it was valued by Mrs Voitin and that its continued operation required outlays for a variety of things. There was no suggestion that any outlays on the farm at Swan Bay had been somehow forced on Mrs Voitin. As explained earlier in these reasons, I proceed on the basis that the meeting of a liability that would otherwise fall on Mrs Voitin, without an understanding of repayment, constitutes in effect a gift to her. Mr Farrands therefore said that expenditures by Goornong of $4,501.20, for farming expenses on Dorper sheep, $52.80, and thoroughbreds, $4,448.40, should be regarded as receipts of trust property by Mrs Voitin. Mrs Voitin's evidence was that her husband had a Dorper sheep flock. A more obvious inference is that outlays by his company would pertain to his flock, not to Mrs Voitin.

113 These considerations, however, are not sufficient to lead me to accept Mr Farrands' contention in closing submissions, paragraph 130, that "miscellaneous purchases" totalling $4,989.55 and travel payments totalling $144.90 by Goornong should be treated as receipts of trust property by Mrs Voitin.

114 The consideration that Mrs Voitin had a rural property in Swan Bay near Geelong, but her husband's company Goornong Pastoral Company owned properties in the north of the state, leads me to accept, for the purposes of paragraph 131 of Mr Farrands' closing submissions, that outlays made at Bunnings in Norlane (but not at Kangaroo Flat and Bendigo) and Fagg's, Geelong, should be regarded as transfers of trust property received by Mrs Voitin. Likewise, payments on 11 July 2016 to Geelong Rural.

115 The expenditure on Touens horses in the sum of $5,373.50 was mentioned in passing during Mrs Voitin's evidence-in-chief. It was noted that the descriptor in that payment referred to Mr John Voitin. Given that this was an outlay by his company with the descriptor mentioning him, I am not persuaded that it should be regarded as a receipt of trust moneys by Mrs Voitin. Likewise, a payment to the Victoria Racing Club, Flemington, on 30 July 2016.

116 At paragraph 132 of his closing submissions, Mr Farrands submitted that $975.66 outlaid by Goornong Pastoral Company for accommodation at the Lakeside Motor Inn, Bendigo, should be regarded as a receipt of trust property by Mrs Voitin. He noted that she made card transaction payments to Boardwalk Bendigo "and in all likelihood stayed at that hotel", presumably the Lakeside Motor Inn. I accept that contention.

117 For the period of July 2016, Mr Farrands, at paragraph 133, contended that miscellaneous purchases totalling $2,273.61 by Goornong Pastoral Company should be regarded as receipts by Mrs Voitin. Having rejected the contention that Goornong should be treated as an alter ego of Mrs Voitin when the evidence disclosed it to be Mr Voitin's company, I reject this contention.

118 I accept Mr Farrands' contention that $10,190 outlaid to Landmark by Goornong should be regarded as a receipt of trust property by Mrs Voitin. As Mr Farrands observed, Mrs Voitin insured her Swan Bay property through Landmark. (T553, L5−27)

119 Mr Farrands also contended that outlays of $273,907.80 and $216,296.56 made to the Milne family should be regarded as receipts of trust property by Mrs Voitin. He said those amounts "were used to settle Goornong's purchase of the Goornong properties". The outlay of these moneys bestowed a benefit on Goornong by acquiring for it a piece of real estate. Mrs Voitin had neither a direct nor an indirect ownership interest in the relevant properties. These payments are not to be regarded as a receipt of trust property by her. Likewise, payments referred to in paragraph 136 of Mr Farrands' closing submission in the sum of $10,462.80 and $14,115 payable to Stanton Grant Legal. These were said to be payments "to facilitate the purchases of the Goornong properties." For reasons already explained, this is not a receipt by Mrs Voitin or the bestowal of a benefit upon her.

120 Given that Mrs Voitin accepted that she did business with Landmark, the payment of $3,999.97 to Landmark on 13 September 2016 referred to in paragraph 137 of Mr Farrands' closing submission should be regarded as a receipt of trust property by her.

121 Finally, Mr Farrands referred to what Mrs Voitin agreed was likely the charge for a car service on 2 September 2016, being a payment of $832.68 by Goornong. He said there were two Lexus cars owned by Clare and John (T402, L16−18). Given that the payment was made by Mr Voitin's company, it is to my mind more probable that the payment was to meet the service fee on his motor vehicle rather than Mrs Voitin's. No receipt by her of trust property results from this transaction.

122 I now turn to the perhaps more difficult question as to whether, with respect to the various receipts of trust property which I have found were made by Mrs Voitin, she had the necessary frame of mind at the time of the receipt to be regarded as "knowing" for the purposes of the cause of action for "knowing receipt".

123 In relation to these amounts which I have found were misappropriated trust property or the proceeds thereof, and were received Mrs Voitin, can it be said that her receipt was "knowing" in the sense explained above?

124 In support of the view that they were, Mr Farrands urged a wide range of considerations commencing with a widely publicised scandal which was the subject of Mr Butler's article in the Sydney Morning Herald a few years prior to the subject events in late 2016. He referred to a number of other considerations, including the relative lack of taxable income as reported by Mr and Mrs Voitin to the Commissioner of Taxation, as he contended the lack of any legitimate source for the relevant expenditure. He also referred to the VCAT determination, finding that Mr Voitin had engaged in 57 contraventions of the rules relative to the maintenance of his solicitor's trust account.

125 The most specific matter relied on, however, was a meeting which Mr Beiruti said he had with Mr Voitin on 23 September 2016, described at [8]-[10].

126 Mrs Voitin, it will be recalled, denied the occurrence of this meeting or, at any rate, her attendance at such a meeting. ([23] above) I will turn first to deal with this issue.

127 There must be a serious reason to doubt that this meeting occurred at the time alleged by Mr Beiruti or in those circumstances.

128 Mr Connors and Mr Gorton referred to a printout from registration authority "Vic Roads" described as "registration check" relative to the Voitins' white Toyota LandCruiser described on the registration as "2016 white Toyota wagon". This showed its compliance plate which it was said was indicative of the date of completion of manufacture as being "12/2016", viz December 2016. On this view, the Voitins' white Toyota LandCruiser could not have been parked outside the restaurant at 143 Whitehorse Road, Deepdene on 23 September 2016, because it had not been manufactured as at that date.

129 Moreover, Mrs Voitin said that, according to her diary, she attended a marketing seminar in the central business district at 131 Bourke Street on 23 September 2016 from 9.00am to 5.00pm. The seminar, on her recollection, was attended by approximately 150 people and, following its conclusion, the attendees gathered to have some drinks and to socialise. (T380) She recollected the title of the seminar as "Over-Subscribed". It was her recollection that her family did not acquire the white LandCruiser until February 2017. (T379, L25-6) Further, she said the area outside the café at 143 Whitehorse Road was a "clearway" until 6.30pm, so that parking a vehicle outside before that time would be prohibited. (T526, L7-9)

130 I do not accept the evidence of Mrs Voitin uncritically. Nevertheless, on balance, I accept her denial of attendance at any meeting at the café on 23 September 2015, or any other day thereabouts. The documentary evidence supports Mrs Voitin's evidence that in September 2015 neither she nor her husband owned a white Toyota LandCruiser. No doubt there are many white Toyota LandCruisers on the road in Victoria. Mr Beiruti's attention might have been attracted by somebody else's white Toyota LandCruiser which he believed belonged to the Voitins. Yet, until they acquired the white Toyota LandCruiser, no earlier than December 2016 (and probably sometime later), there would be no reason for Mr Beiruti to associate the Voitins with white Toyota LandCruisers. It is likely that the meeting described by Mr Beiruti happened sometime in 2017 when the Voitins did own a white Toyota LandCruiser and when Mr Beiruti was no doubt feeling highly aggrieved and looking for opportunities to "collar " Mr Voitin. Perhaps the meeting described by Mr Beiruti did not occur at all. For present purposes, however, unless the meeting occurred as described by Mr Beiruti with both Mr and Mrs Voitin in attendance in or about September 2016, it would be irrelevant to the "knowledge" which Mrs Voitin might have had at the time of receipt of any of the payments the subject of the present claim. The date 23 September 2016 only appeared in the plaintiff's pleaded case for the first time when I granted leave for the filing of an Amended Statement of Claim. Paragraph 10 of the original Statement of Claim described the meeting as having occurred "in or about late 2016". This pleading was based apparently upon instructions provided closer to the relevant event than the evidence which Mr Beiruti gave at trial. His explanation for the later appearance of this further particularity was that further reflection enabled him to link the meeting at 143 Whitehorse Road to his daughter's birthday, yet there was no explanation as to why he failed to make that connection initially.

131 I turn, then, to the other matters urged on behalf of the plaintiff as establishing that Mrs Voitin's receipt of monies was "knowing". As noted above at [53], the plaintiffs' case was based on Mrs Voitin's receipt being "knowing", based on the first four categories of "knowledge" identified in Baden v Société Générale pour Favoriser le Développement du Commerce et de l'Industrie en France SA [1993] 1 WLR 509, 575-6 - see [58] above, with emphasis upon the second to fourth categories, which might be regarded as comprising what one ought to have known rather than what one does actually know.

132 In his closing submissions, Mr Farrands, in paragraphs 81-91, set out the considerations on which he based this contention. First, he referred to the matters that were the subject of the Sydney Morning Herald article. Next, he referred to the VCAT determination. Thirdly, he said it should be found that Mrs Voitin was a woman of "more than modest business acumen" [86] Next, he said "there is no probative evidence, either lay or expert, at all about how the Voitin family funded any aspect of their lifestyle or expenditure. He said at the relevant time the expenditure was "over 300 times the combined anticipated taxable income of Clare and John between 2014-2016". [87]-[88]

133 Next, he referred to the fact that the only source of deposits for Mrs Voitin's personal account in the period 1 July to 31 December 2016, the period for which she produced bank statements, were deposits from Goornong Pastoral Company Pty Ltd or Property Transfers Pty Ltd, with "only nominal" payments from other persons.

134 First, I should say something as to Mrs Voitin's credit as a witness. I agree with Mr Farrands' contention that she showed herself to be a person of commercial acumen. Cross-examination began late on the afternoon of 9 September. It continued over the whole of 10 September, with the exception only of short periods devoted to discussions with counsel on "housekeeping" matters, and concluded late on 13 September. This searching cross-examination by senior counsel did not lead Mrs Voitin into any serious blunder or produce any damaging admission. She largely, or totally, avoided the sort of vices exhibited by witnesses under lengthy cross-examination, viz answering questions with questions, giving non-responsive answers, making speeches, et cetera. Nevertheless, I found much of what she said difficult to credit.

135 Asked about the charges laid by the Commonwealth Director of Public Prosecutions against her and her husband, she said: "I have looked at the charge sheet. I have read what I can understand. I don't understand the charges. " (T421, L26-27)

136 As to her connection with the two Hong Kong companies, Athena and Mandamus, she said "I was a shelf director". (T436, L18-19) This was a formulation that she repeated on a number of occasions.

137 I cannot accept Mrs Voitin's professed ignorance as to the nature of the charges against her. An astute woman, as she presented herself in the witness box, would be able, unassisted by any legal advice, to make out what the charges were about, having read Mr Butler's article in 2014.

138 As noted above, that article gives a step by step description of the "scam" allegedly put into effect by a number of persons including Mr Voitin, even providing graphics. Mrs Voitin said that shortly before publication, she was contacted by Mr Butler for comment, and she had frank discussions with her husband after the article was published, who assured her the article was "categorically not true". (T584)

139 This necessarily entails an admission that she paid great heed to the article and assimilated what it was about. Even if I am wrong, since Mrs Voitin has been represented on at least one and perhaps two "mentions" in the Magistrates' Court, the thought that she would not have received legal advice as to what was being alleged against her is impossible to credit. No doubt, different classes of criminal defendants have different reactions to the laying of charges. Perhaps recidivists or "old lags" are able to view these sorts of matters with relative equanimity. There is nothing to suggest that Mrs Voitin had ever previously been the subject of criminal prosecution. In those circumstances, one would imagine that she would be anxious, perhaps desperate, fully to understand what was being alleged against her. Moreover, she was married to a legal practitioner who was allegedly at the heart of the matters which gave rise to the charges.

140 Again, Mrs Voitin said that her husband denied what was being alleged against him in the Sydney Morning Herald article. She said repeatedly, "I trust my husband", meaning not only did she accept his denials in 2014, but continues to accept them now. (T585, L11-12)

141 Mr Farrands took Mrs Voitin, document by document, through court filings which establish the truth of what was said in the article. Therefore, I cannot accept that Mrs Voitin accepted her husband's denials when the article appeared in the Sydney Morning Herald. Indeed, it will necessarily be the case advanced by the Commonwealth Director in the criminal prosecution that she knew all about what had or had not happened because she was in the middle of it herself.

142 Mr and Mrs Voitin have stuck together through what, on any view, must have been a tempestuous decade. The embarrassment of the articles in the Sydney Morning Herald, bankruptcy, actions by the legal profession authorities, arson, attacks on Mrs Voitin's farm and the family vehicle, and on the family house, and a shooting attack on her husband. Theirs must be a very strong marriage. Again, it is difficult or impossible to credit that in such a strong marriage Mrs Voitin would be as ignorant as she professes to be as to major events and business transactions in her husband's life. If she were as ignorant of all these matters as she professes, it could only be by dint of "Nelsonian" blindness. This is the second of the categories of knowledge relied on by the plaintiffs in this case and approved by the highest authority as being adequate to make out the necessary knowledge for liability in the action for "knowing assistance". I would not critically accept Mrs Voitin's evidence on any major point without corroboration or some documentary support.

143 I accept that the article in the Sydney Morning Herald and associated events would have been known to Mrs Voitin and would establish that her husband was willing to engage in blatantly dishonest schemes of some complexity. I do not attach much, if any, significance to the VCAT determination against Mr Voitin. It would be wrong to regard any trust account breach by a solicitor as "a mere technicality", but there was nothing in the Tribunal's determination to indicate that any client money had been misappropriated.

144 Mr Farrands referred to the transactions described in the Sydney Morning Herald article, and which are the subject of the criminal prosecution as a "scam", as not inaccurate descriptions.

145 As to the issue of whether Mrs Voitin should have asked herself, "where is the money coming from?" in the second half of 2016, Mrs Voitin said that the pattern throughout her married life was that when her personal bank accounts needed topping up, she would ask her husband for money, and an appropriate deposit or deposits would be made in "a rounded off dollar amount". (T363, L22-30)

146 These sort of subventions were made by Mr Voitin (or presumably companies which he controlled) on her estimation about 5-10 times a year approximately monthly. (T364, L1-4) This would entail deposits "in the order of $80,000 a year". (Ibid, L11)

147 The most significant matter relied on by the plaintiffs was said to be the disparity between the reported taxable income of Mr Voitin and his wife, the defendant, at the time of the relevant payment. The Deputy Commissioner of Taxation furnished the trustee of Mr Voitin's bankrupt estate with his tax returns for the fiscal years 2014, 2015 and 2016, which would appear to be the ones relevant to the present controversy. (CB 1925-1926)

148 Perhaps, surprisingly, the documents furnished to the trustee, and included in the Court Book, are not in the form of returns which I and other tax payers are accustomed to lodge. What the Commissioner provided, apparently, were a series of spreadsheets headed "ITR for Mr John Voitin", which appear in the Court Book at pages 1927-1949. At page 1932, these documents show a taxable income for Mr Voitin for the financial year ending 30 June 2016 as $10,766, with the year ending 30 June 2015 as zero dollars, and likewise for the year ending 2014. These documents incidentally disclose, in effect, a "nil return" for income for Mrs Voitin, a matter which she conceded, having regard to the answers which she gave, as to receipts at that time by her for wages and salary, director's fees, dividends or other items.

149 The argument is that, in the circumstances, the unexplained source of income in late 2016 must at least have provided Mrs Voitin with knowledge of circumstances which would indicate the facts to an honest and reasonable person, viz the money she was receiving represented the proceeds of misappropriations.

150 The point is somewhat blunted by the fact that the multiple of 300, representing the difference between taxable income and expenditure, derives from a far higher expenditure level than I have been, in the circumstances, prepared to find was constituted by receipts of money by Mrs Voitin. Large payments, for instance, in settlement of purchases of rural property by Mr Voitin's company cannot, for reasons I have already explained, be treated as receipts by Mrs Voitin.

151 The argument as to knowledge based on an apparently unexplained source of income was sufficient to establish the requisite knowledge on the part of the recipient wife in Artcraft Pty Ltd v Dickson [2014] SASC 108. Based on the particular circumstance of that dispute, it was found insufficient based on a different factual scenario by Hammerschlag J in Moriah War Memorial College Association v Nosti [2020] NSWSC 942. In both cases, the misappropriated trust money represented monies stolen by husbands, Mr Dickson in Artcraft, and Mr Nosti in Moriah.

152 In Artcraft, as already noted, Kelly J found that there had been a knowing receipt of property by Mr Dickson's wife. Hammerschlag J in Moriah, declined to make a similar finding against Mrs Nosti. Both judges, however, began from the premise that in appropriate circumstances an unexplained source of income might be sufficient to fix a wife with knowledge sufficient for the first limb in Barnes v Addy of trust money misappropriations by way of employee theft by their husbands.

153 In the case of a self-employed solicitor, by parity of reasoning an unexplained source of income might be sufficient to establish the necessary knowledge for the first limb of Barnes v Addy relative to misappropriations from the trust account of the husband's solicitor. It might be expected that a wife would know the identity of her husband's employer. It would not seem necessary, in the case of the hypothetical self-employed solicitor, that a wife being the recipient of monies from an unexplained income source need know the identity of the client whose trust funds were being misappropriated to become liable under the first limb of Barnes v Addy, if the evidence is sufficient to establish the necessary knowledge more generally.

154 In Moriah, having reviewed a number of authorities, Hammerschlag J said:

"These authorities make it clear that knowledge, actual or constructive, of an unexplained source of income, simpliciter, is insufficient to get Moriah home. It does not meet the criteria which the authorities have laid down; that there must be knowledge both that the property was trust property and that is was being misapplied. An unexplained source of income does not bring with it a necessary inference or implication that the explanation is nefarious activity. It does not bring with it a necessary inference or implication that there is a trust or misapplication of trust money." [2020] NSWSC 942 [97]

155 Amongst the matters which his Honour regarding as contra indications relative to a suggested finding of knowledge by Mrs Nosti, was her uncontested evidence that her bank accounts were largely or exclusively controlled by her husband, and that her husband had given her to understand that whilst he was a heavy gambler, he frequently had big wins, so that gambling could be regarded as a source of income and not purely as an item of expenditure.

156 His Honour considered Mrs Nosti to have been a generally truthful witness, a more positive finding than I have made relative to Mrs Voitin.

157 In the present case, at least as to the outlays which I have found to involve receipts of trust property by Mrs Voitin, there is no question that she did not have control of those amounts. The case, therefore, might be seen as a stronger one on this point for the plaintiffs than was the unsuccessful claim by Moriah.

158 It is difficult to credit that a couple like Mr and Mrs Voitin, who seem to have stuck together through thick and thin, would not generally be aware of the level of taxable income which the other was deriving or, in the relevant period, not deriving. The explanation proffered by Mrs Voitin that the receipts in question were just an extension of the pattern which had been followed through the Voitins' married life is less than compelling. Nevertheless, given the gravity of the matters which are being alleged here, and the need for clear proofs and the necessity referred to by Sir Owen Dixon in Briginshaw of giving appropriate weight to the presumption of innocence, I am not satisfied that I should reject Mrs Voitin's explanations as to her state of mind at the time. The plaintiffs' case is deficient in positive evidence, both as to receipt by Mrs Voitin and her knowledge of the circumstances. The further investigations advocated by Mr Carrafa might have supplied the deficiency; but they were not undertaken. My own reservations as to Mrs Voitin's credibility, and any adverse inferences which might be drawn from her failure to call Mr Voitin as a witness or produce certain documents, cannot individually or in combination supply that deficiency.

159 The conclusion that Mrs Voitin was not a knowing receiver is not changed by a consideration of background issues, such as the 2014 scam and the adverse finding by VCAT. As previously observed, neither of those transgressions by Mr Voitin entailed the misappropriation of any trust money.

160 The claim against the defendant for "knowing receipt" therefore fails.

161 I have heard no submissions on the question of costs and so I will reserve them.