Westpac Banking Corporation v Sentox Pty Ltd

Supreme Court of NSW|2024-12-04|Before: Ball J

Introduction

I delivered reasons for judgment in this matter on 27 June 2024: Westpac Banking Corporation v Sentox Pty Ltd (No 2) [2024] NSWSC 783. At that time, I invited the parties to make submissions on the form of orders I should make consistently with those reasons. This judgment is concerned with those orders. It assumes familiarity with my earlier judgment and uses the same abbreviations as used in that judgment.
The parties' submissions were made primarily by reference to the orders proposed by the Bank. I have started with those orders and deal in this judgment with the orders that are not agreed.

Leave to proceed against Sentox and Cheeky Farms

The Bank seeks leave to proceed against Sentox and Cheeky Farms (proposed orders 1 and 6) under s 471B of the Corporations Act 2001 (Cth). Leave is required because both companies are now in receivership.

Judgment against Mrs Musumeci

The Bank seeks judgment against Mrs Musumeci in the following terms: 2. Judgment for the Plaintiff against the Second Defendant for the amount of $19,112,347.81, being the greater of the following amounts for which the Second Defendant is liable to the Plaintiff: (a) $19,112,347.81, being the amount owed by the Second Defendant to the Plaintiff pursuant to the contract of guarantee between the Plaintiff and Second Defendant; and (b) $12,430,421.36, being damages for the tort of deceit.
The Bank seeks judgment in those terms to cater for the possibility that Mrs Musumeci is bankrupted, since her bankruptcy will not affect the Bank's ability later to pursue a judgment in its favour based on the tort of deceit: see Bankruptcy Act 1966 (Cth), s 153(2)(b). In the Bank's submission it is desirable for the Court to make it clear now how much of the judgment amount falls within the exception created by s 153(2)(b). On the other hand, Mrs Musumeci objects to judgment in those terms on the basis that judgment should not be given for different amounts.
I accept that judgment cannot be given for different amounts. However, I can see no reason why the Court should not make a declaration concerning the amount the Bank is entitled to recover relying on the tort of deceit. Such a declaration has utility, since it avoids disputes in the future concerning the amount that falls within the exception created by s 153(2)(b) of the Bankruptcy Act. Neither the Bank nor Mrs Musumeci objected to that course. Accordingly, order 2 should be replaced by the following orders: 2. Declare that the Plaintiff is entitled to obtain judgment against the Second Defendant in the amount $12,430,421.36 as damages for the tort of deceit. 2A. Judgment for the Plaintiff against the Second Defendant for the amount of $19,112,347.81.

Judgment against Mrs El-Ahmad

The Bank seeks judgment against Mrs El-Ahmad in the amount of $10,782,116.44.
In my earlier judgment, I found that Mrs El-Ahmad was guilty of the tort of deceit because she knowingly uploaded false invoices to the Bank's electronic system intending the Bank to advance funds by reference to those false invoices (Judgment at [117], [118]). I also said (at [119]): The amount claimed by the Bank represents the amount that it lent Sentox since 2014 on the basis that but for the deceit it would not have lent that money. However, as noted earlier, the Bank's pleaded case against Mrs El-Ahmad is that "[t]he Financial Information and Documents provided to the plaintiff from at least 2016 were false …" (emphasis added). And its case is that at the time that information was provided to the Bank Mrs El-Ahmad knew that it was false. Accordingly, the claim against Mrs El-Ahmad is limited to the period from 2016. Any judgment against Mrs El-Ahmad must reflect that fact.
Mrs El-Ahmad submits that properly understood my judgment amounted to a finding that she was only liable in the tort of deceit in respect of the invoices she uploaded. There was no finding that she uploaded all the invoices from 2016, and the Bank did not prove which invoices Mrs El-Ahmad did upload. Consequently, in her submission the Bank has failed to prove the amount of its loss, with the result that it is not entitled to judgment for any amount.
I do not accept that submission. I found that Mrs El-Ahmad knew that the invoices she uploaded were false. Although not expressly stated in paragraph [119] of my judgment, it is implicit in that paragraph that I accepted the Bank's submission that if it had known of Mrs El-Ahmad's deceit it would not have advanced any money from 2016. It follows that on the findings I made, Mrs El‑Ahmad was liable for all the Bank's losses after that time even if she was not the only person to have submitted false invoices to the Bank. On a fair reading, my judgment could not be understood as holding that Mrs El-Ahmad was only liable for the invoices she uploaded.
There is no suggestion that the Bank has miscalculated the damages to which it is entitled on that basis. Accordingly, the Bank is entitled to judgment against Mrs El-Ahmad in the amount that it claims.

Proprietary relief

The Bank seeks declarations that it has an equitable charge over properties owned by Mrs Musumeci in Strathfield and Bossley Park and a property owned by Mrs Musumeci and Mr Giuseppe Musumeci as joint tenants in Haberfield (where Mr Giuseppe Musumeci lives) on the basis that money it advanced as a consequence of Mrs Musumeci's fraud was used to pay principal and interest on mortgages over those properties.
In my earlier judgment, I observed that no claim was made by the Bank against Mr Giuseppe Musumeci, that he was only joined because the orders the Bank did seek would affect him, that he did not participate in the hearing and that consequently, he should be given an opportunity to make submissions on the question whether the declaration sought in relation to the Haberfield property should be made before making that order. He did appear (by counsel) at the hearing on 4 December 2024 to resist the declaration. In doing so, he adopted the arguments of Mrs Musumeci, which are dealt with below.
Mr Giuseppe Musumeci also submitted that any declaration should be limited to Mrs Musumeci's interest in the Haberfield property. However, it was pointed out during the hearing that such an order would not necessarily prevent the Bank from applying for an order for the appointment of trustees for the sale of the Haberfield property under s 66G of the Conveyancing Act 1919 (NSW). The orders proposed by the Bank sought a declaration that the Bank holds an equitable lien over the whole of the property. However, those orders sought to protect Mr Giuseppe Musumeci's position by providing for a stay of the order by which the declaration is made until he vacates the property or dies. However, Mr Giuseppe Musumeci did not agree with that order and in written submissions filed after the hearing he pressed for an order that confined the declaration to Mrs Musumeci's interest, assuming any declaration was made.
Mrs Musumeci submitted that my earlier judgment left open the question whether any of the declarations in relation to the three properties should be made. In the alternative, she sought leave to reopen my earlier judgment to argue that the declarations should not be made. During the hearing, I indicated that I was inclined to accede to Mrs Musumeci's request to reopen my judgment if that was necessary. The points that Mrs Musumeci wished to advance were not raised at the hearing of the matter or dealt with in my judgment. More significantly, consistently with my earlier judgment, they were points that Mr Giuseppe Musumeci was entitled to raise, and it would be unsatisfactory for the Bank's entitlements against Mrs Musumeci to be resolved on a different basis from its entitlements against Mr Giuseppe Musumeci. Accordingly, the hearing proceeded on the basis that it was open to Mrs Musumeci to challenge the declarations sought by the Bank.
Mrs Musumeci submitted that there were only two bases on which the Bank was entitled to the declarations it sought. The first was if the Bank could trace the amount it claimed into the three properties in question. The second was if the Bank could establish that it was entitled to be subrogated to the mortgagees' rights. In her submission, neither argument was available to the Bank in this case.
As to tracing, Mrs Musumeci accepts that the Bank is entitled to trace the money it advanced into each of the three properties to the extent that the money was used to pay off the principal owing on the mortgage over that property, but she submitted that it was not entitled to trace into the property money that was simply used to pay interest on the mortgage. The only evidence in relation to tracing did not distinguish between amounts used to pay principal and amounts used to pay interest. It followed, according to Mrs Musumeci, that the Bank had failed to prove that any money it advanced could be traced into the properties.
The principal case relied on by Mrs Musumeci is the decision of the Court of Appeal in Heperu Pty Ltd v Belle (2009) 76 NSWLR 230; [2009] NSWCA 252 (Heperu). In that case, a fraudster deposited cheques given to him by the appellant into an account controlled by him but in his wife's name and then used the funds to make mortgage repayments on properties owned by his wife. One question in the case was whether the appellant had a proprietary claim against the properties owned by the wife. The leading judgment was given by Allsop P, with whom Campbell JA and Handley AJA agreed. After a detailed review of the relevant authorities, his Honour pointed out that the appellant had remedies both at law and in equity against the wife but only to the extent that it could prove that the misappropriated funds could be traced into assets held by her. In identifying the traceable assets, it was necessary to "focus upon the value properly attributable to the earlier receipts derived from misappropriations and still retained by the volunteer at the relevant time. The proper approach to the assessment of this and its relationship to the funds received would be a matter for assessment" (at [157]). Allsop P earlier observed (at [123]) that in carrying out that assessment: The question of the effect of payment of interest on any mortgage from the misappropriated funds is not straightforward. Such payments preserve, but do not directly increase the borrower's equity. Nevertheless in a rising market it could be said that such preservation is linked to a true proprietary benefit. That may, or may not, provide a basis for non-proprietary claim based on an identifiable fund by traceable benefit…
Moreover, further borrowings on the security of the properties may have reduced or eliminated any equity, with the result that the mortgage payments could not be traced to anything of value held by the wife. As Allsop P said (at [156]): Here, the funds were used to pay interest and principal. It is not self evident that the interest payments increased the value of her equity. Of course, payments of interest kept alive the opportunity of the equity of redemption and of capital appreciation thereof. The relevance of this to a restitutionary claim is not, however, self evident. As I have already said, further borrowings on the security of the assets appear to have been made, which may have reduced or eliminated any equity. The properties may also have fallen in value.
The Court of Appeal had not heard argument on some of the issues raised in Allsop P's judgment. Accordingly, the matter was adjourned for a month to give the appellant an opportunity to consider if "it can be demonstrated, with precision, that some benefit in a traceable interest in the properties can be shown at the relevant time to found a personal claim", in which case the matter would be remitted to the Equity Division for assessment: at [170].
As to subrogation, Mrs Musumeci accepts that the Bank may be entitled to be subrogated to the mortgagees' rights under the relevant mortgages to the extent that the Mrs Musumeci's obligations under those mortgages have been discharged. That concession was consistent with the following statement of Allsop P in Heperu at [135]: The Court of Appeal in In re Diplock at 549-550 [a reference to In re Diplock; Diplock v Wintle [1948] 1 Ch 465] refused to conclude that the discharge of a loan secured over property by the wrongfully paid funds in question gave the person entitled to the wrongfully paid funds any interest in the property over which the security was discharged. In Boscawen v Bajwa [[1996] 1 WLR 328; [1995] 4 All ER 769], Millett LJ (as his Lordship then was) at 340-341 expressed a substantially contrary view recognising the relationship in this respect of tracing and subrogation. The views of Millett LJ are to be preferred: Jacobs' Law of Trusts (7th Ed) at 681 n 86: Goff and Jones The Law of Restitution ((6th Ed) 2002 Sweet & Maxwell) at 111-112 [2-043]. However, according to Mrs Musumeci, subrogation is not available unless the mortgagee has been paid in full, citing Meagher, Gummow & Lehane's Equity Doctrines & Remedies, (Butterworths, 5th ed, 2015) at [9-080], where the authors say "[i]t appears clear that there can be no subrogation, in general, unless the whole of the secured debt has been paid off".
There is some force in Mrs Musumeci's submission that subrogation is not available unless the misappropriated funds are used to discharge the mortgage. Moreover, it is difficult to see how it could justify a declaration that the Bank has equitable charges over Mrs Musumeci's properties. The nature of the right to subrogation is that it permits one person to stand in the shoes of another because that person has paid an amount that the other is entitled to receive or recover from a third party (in this case, the mortgagor). Consequently, it is on payment of the amount due under the mortgage that the person making the payment is entitled to stand in the shoes of the mortgagee. That is quite a different circumstance from a declaration concerning the existence of an equitable charge. It is true as Black J points out in Angus Carnegie Gordon in his capacity as liquidator of Lyon Form Pty Ltd (in liq) & Anor v Leon Plant Hire Pty Ltd (in liq) & Ors [2015] NSWSC 397 at [68], that there is authority in support of the proposition that subrogation is available even where the payment only partially discharges the mortgage: see Raulfs v Fishy Bite Pty Ltd [2008] NSWSC 1195 at [28]ff and the cases cited there. However, it is not necessary to consider this issue further, since I have concluded that the Bank is entitled to the relief it seeks irrespective of any right of subrogation.
In my opinion, the present case is distinguishable from Heperu. That case was concerned with the right to trace and to follow misappropriated funds into property owned by an innocent volunteer. In the present case, the Bank seeks proprietary relief against the person guilty of the fraud to the extent that the misappropriated funds were used to maintain property belonging to the fraudster (Mrs Musumeci). The rights against an innocent volunteer only arise when the volunteer is made aware that he or she has received property obtained by fraud. It is at that point that the volunteer becomes under an obligation to return whatever remains of the assets or their traceable proceeds. If the property consists of funds that have been used to improve or to maintain real property, a question arises concerning what remains of those funds given, for example, that the property may have decreased in value between the time the funds were received and the time the volunteer became aware of the fraud. Allsop P should not be understood as saying in Heperu that interest payments could not be traced into the property. Rather, the point that his Honour was making was that by the time the volunteer became under an obligation to return what remained of the misappropriated funds, it could not be said that anything remained of the funds without a detailed enquiry into what had happened to the value of the volunteer's interest in the property following the payment.
No such issue arises in tracing funds in the hands of the fraudster. The funds are impressed with a trust and the fraudster is bound to return them from the moment they were misappropriated: Blackman v S Freedman & Co (1910) 12 CLR 105; [1910] HCA 58, per O'Connor J at 110; Creak v James Moore & Sons Pty Ltd (1912) 15 CLR 426; [1912] HCA 67 at 432; Robb Evans v European Bank Limited [2004] NSWCA 82 at [111] per Spigelman CJ; Sze Tu v Lowe [2014] NSWCA 462 at [141] per Gleeson JA (with whom Meagher and Barrett JJA agreed) . If they are used to pay interest on a mortgage, the fraudster obtains the immediate benefit of the payment in terms of discharging an obligation under the mortgage and in doing so preserving the equity of redemption in the property. There is no reason why the value of that benefit should not be treated as the amount of the payment. And since the payment was impressed with a trust, the true owner of the funds is entitled to an equitable lien to secure repayment of the amount paid.
As to Mr Giuseppe Musumeci, in my opinion, no order should be made in relation to his interest in the property. As he points out, a charge can be created over the interest of one joint tenant in respect of property owned by a number of joint tenants: see, for example, Andrews v Wilcox [2008] NSWSC 280; Allen Taylor & Co Pty Ltd t/as Boral Timber and Ors v Norman Leslie Harrison [2010] NSWSC 1021 at [32]-[34]. The Bank did not advance a case against Mr Giuseppe Musumeci. Consequently, it would not be appropriate to give any relief against him. Instead, the order proposed by Mr Giuseppe Musumeci should be made.
Mr Giuseppe Musumeci submitted that the Court should still stay the order in respect of the Haberfield property until he vacates the property or dies. However, I can see no reason for staying an order that does not concern his interest in the property. No stay would be granted if Mrs Musumeci had freely granted security in her interest in the property. The position should not be any different because the Bank's interest arises as a consequence of her fraud.

Asset preservation orders

The Bank seeks the following order: 21 The operation of the asset preservation orders made by the Court on 12 November 2021, and as amended by the Court from time to time, is extended with respect to each of the defendants until the earlier of: (a) the satisfaction of the judgment debt owing by the relevant defendant; (b) the execution of the judgment; or (c) further order of the Court varying or discharging the freezing orders.
Mrs Musumeci did not object to a continuation of the asset preservation orders made by the Court on 6 October 2021 and extended on 12 November 2024. However, she submitted that the orders should have an end date and proposed the date on which the limitation period in respect of the enforcement of the judgment debts arising from this judgment expire - that is, 12 years from the date judgment is pronounced: see Limitation Act 1969 (NSW), s 17. The Bank did not object to that proposal.
Accordingly, para 21 of the Bank's orders should be amended so that it reads: 21 The operation of the asset preservation orders made by the Court on 12 November 2021, and as amended by the Court from time to time, is extended with respect to each of the defendants until the earliest of: (a) the satisfaction of the judgment debt owing by the relevant defendant; (b) the execution of the judgment; or (c) 12 years after the date of this judgment; or (d) further order of the Court varying or discharging the freezing orders.

Orders

Taking these matters into account, the Court makes orders in terms of Annexure A to this judgment.

Annexure A First Defendant (Sentox) 1 The Court grants leave to the Plaintiff to proceed with its claim against the First Defendant with respect to the 20% interest held by the First Defendant in the Share in Sydney Markets (as referred to in the declaration at 20 below), pursuant to section 471B of the Corporations Act 2001 (Cth). Second Defendant/Cross Claimant (Kathie Musumeci) 2 Declare that the Plaintiff is entitled to obtain judgment against the Second Defendant as damages for the tort of deceit in the amount $12,430,421.36. 2A Judgment for the Plaintiff against the Second Defendant for the amount of $19,112,347.81. 3 The Cross Claim Summons filed on 27 March 2023 is dismissed. 4 The Second Defendant is ordered to pay the Plaintiff's costs of the proceedings on an indemnity basis. Third Defendant (Andrew Musumeci) 5 The Third Defendant is ordered to pay the Plaintiff's costs of the proceedings on the ordinary basis. Fourth Defendant (Cheeky Farms) 6 The Court grants leave to the Plaintiff to proceed with its claims against the Fourth Defendant pursuant to section 471B of the Corporations Act 2001 (Cth). 7 Judgment for the Plaintiff against the Fourth Defendant for $16,665,876.08. 8 The Fourth Defendant is to pay the Plaintiff's costs of the proceedings on the ordinary basis. Sixth Defendant (MPI) 9 Judgment for the Plaintiff against the Sixth Defendant for $5,131,043.57. 10 The Sixth Defendant is to pay the Plaintiff's costs of the proceedings on the ordinary basis. Seventh Defendant (CAO) 11 Judgment for the Plaintiff against the Seventh Defendant for $1,120,367.76. 12 The Seventh Defendant is to pay the Plaintiff's costs of the proceedings on the ordinary basis. Eighth Defendant (Sahar El-Ahmad) 13 Judgment for the Plaintiff against the Eighth Defendant for $10,782,116.44. 14 The Eighth Defendant is to pay the Plaintiff's costs of the proceedings on the ordinary basis. Proprietary relief 15 The Court declares that the Plaintiff has an equitable charge over the whole of the land at XX Street, Strathfield NSW which charge secures repayment to the Plaintiff of the sum of $1,788,442.71, plus interest on that sum from 5 December 2024 calculated at the rate prescribed by section 101 of the Civil Procedure Act 2005 (NSW). 16 The Court declares that the Plaintiff has an equitable charge over the interest of the Second Defendant in the land bearing folio identifier XX situated at XX Street, Haberfield NSW which charge secures repayment to the Plaintiff of the sum of $184,778.91, plus interest on that sum from 8 November 2024 calculated at the rate prescribed by section 101 of the Civil Procedure Act 2005 (NSW).w 17 The Court declares that the Plaintiff has an equitable charge over the whole of the land at XX Road, Bossley Park NSW which charge secures repayment to the Plaintiff of the sum of $203,199.24, plus interest on that sum from 5 December 2024 calculated at the rate prescribed by section 101 of the Civil Procedure Act 2005 (NSW). 18 The Court declares that the Plaintiff has an equitable charge over the whole of each of the following real properties which charge secures the repayment of $5,131,043.57, plus interest on that sum from 5 December 2024 calculated at the rate prescribed by section 101 of the Civil Procedure Act 2005 (NSW): (a) XX Road, Berry Springs Northern Territory; (b) XX Road, Lambells Lagoon Northern Territory; (c) XX Road, Lambells Lagoon Northern Territory; (d) XX Road, Lambells Lagoon Northern Territory; and (e) XX Road, Berry Springs Northern Territory. 19 The Court declares that the Plaintiff has equitable charges over each of the chattels identified in Column 1 to the Schedule annexed to these orders and marked B (Chattel Schedule), which charges secure the repayment of the amounts specified in Column 2 to the Chattel Schedule, plus interest on each of those sums from 5 December 2024 calculated at the rate prescribed by section 101 of the Civil Procedure Act 2005 (NSW). 20 The Court declares that the share in Sydney Markets held by the First Defendant (as to 20%) and the Seventh Defendant (as to 80%): (a) was acquired using funds obtained from the plaintiff by fraud; and (b) is held on trust for the plaintiff. Freezing Orders 21 The operation of the asset preservation orders made by the Court on 12 November 2021, and as amended by the Court from time to time, is extended with respect to each of the defendants until the earliest of: (a) the satisfaction of the judgment debt owing by the relevant defendant; (b) the execution of the judgment; or (c) 12 years after the date of this judgment (see s 17 Limitation Act 1969 (NSW); or (d) further order of the Court varying or discharging the freezing orders. Annexure B - Chattel Schedule Chattel Amount secured by equitable charge 2017 AWETA Mango Sorting and Packing Line Serial No. 62206 $595,482.90 2007 John Deere 6430 Tractor VIN/Chassis No. L06430G572574 $236,965.76 2004 John Deere 4720 Tractor VIN/Chassis No. LV4720H670344 Toyota 42-5FG25 Forklift VIN/Chassis No. 405FG25-1864 1991 Mitsubishi Canter Truck VIN/Chassis No. 6F6G4G11DMA050082 Engine No: 6BB1202594 1980 Isuzu SBR 422 4x2 Tabletop Truck VIN/Chassis No. BJ711982 Engine No. 6BB1202594 2012 Hydralada Elevated Work Platform with Tynes VIN/Chassis No. 2204364712 2012 Hydralada Elevated Work Platform with Tynes VIN/Chassis No. 2204364512 2012 Hydralada Elevated Work Platform with Tynes VIN/Chassis No. 2204364612 2012 Hydralada Elevated Work Platform with Tynes VIN/Chassis No. 2204364812 Credon Bin Runner VIN/Chassis No. 11049 Air Mist Orchard Aids Orange Fibreglass Spray Tank Trailer 2003 John Deere D110 Ride on Mower VIN/Chassis No. 1GXD110AHCC068139 1997 Afron A500H Elevated Work Plat Work Platform VIN/Chassis No. 60510 Mobile Conveyor Picking Aid and Washing Powered by Ruggerini 2 Cylinder Diesel Engine VIN/Chassis No. 4966792 2012 John Deere 6430 Tractor VIN/Chassis No. L06430G660885 1964 Massey Ferguson 165 Tractor VIN/Chassis No. 593300 Engine No. 79016 2008 John Deere 5093E Tractor VIN/Chassis No. LV5093E260290 2004 John Deere 4720 Tractor VIN/Chassis No. 6V4720H6702764 1995 Toyota Commuter 120 Van VIN/Chassis No. JT743UHC501001047 Engine No. 2RZ0841657 Registration No. XX 2011 Toyota Hilux SR Dual Cab 150 Series Utility VIN/Chasis. MR0EZ12G204011202 Registration No. XX 2008 Litchfield Welding Picking Aid VIN/Chassis No. LW004 Atomik XUV 500 CC ATV VIN/Chassis No. ATOM1KUTB50124001 Engine No. HS185MR40C0D0122 2007 Litchfield Welding Picking Aid VIN/Chassis No. LW005 2008 Litchfield Welding Picking Aid\VIN/Chassis No. LW002 2 x Simpsons White Domestic Top Loading Washing Machine, 1 x Refrigerated Coin Operated Vending Machine, 1 x Frigidaire Fridge / Freezer 410L, 1 x Stainless Steel Twin Bowl Sink with under storage, 1 x Whirlpool White Domestic Fridge / Freezer, 1 x Kelvinator Opal Domestic Fridge / Freezer, 2 x Fisher & Paykel Chest Freezers and 5 x Domestic Microwaves 1 x LUV-VE White Colourbond style Coolroom including LU-VE Contardo 4 Fan Blower, FDC & 3 Sliding Doors Dimensions 18M x 6.5M, External Control Panel and 8 Fan Blower Cooling Tower also with Rapid Cooling System 1 x Used Greentech Mist Sprayer with 2 x 5 Sprayer Pivoting Arms with Rapid spray Tank Serial No. CS10.6000I.10H.021 10 x Portable Demountable Sleeping / Living Quarters Serial No: 312036037, 2405310, 2408313, 2405315, 2405250, 3SS12036057

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