Westpac Banking Corporation v Toksoz & Anor

Westpac Banking Corporation v Toksoz & Anor - [2010] NSWSC 1509 - NSWSC 2010 case summary — Zoe

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In reliance upon the Misrepresentations, the Bank advanced the total sum of $1,471,349.73 to the first defendant ( Funds) ." 6 The second cause of action pleads the same facts in support of a cause of action for misleading and deceptive conduct in breach of s 42 Fair Trading Act 1987 (NSW). 7 The third cause of action is a restitutionary claim, namely, for recovery of money paid by the Bank to Mr Toksoz under a mistake, namely, that in each of the relevant transactions Mr Toksoz was the Bank's customer entitled to the funds. 8 The Bank's first cause of action against Mrs Toksoz is founded on the first limb of Barnes v Addy. The Bank says that Mrs Toksoz received the monies misappropriated from it in circumstances where she had notice of the facts whereby Mr Toksoz was a resulting trustee of the money on behalf of the Bank. 9 In the alternative, the Bank says that the funds misappropriated by Mr Toksoz can be traced into Mrs Toksoz's accounts and that, in respect of those funds, Mrs Toksoz was a volunteer. At the time that these proceedings were commenced, Mrs Toksoz was put clearly on notice that she was the recipient of misappropriated monies and has unconscientiously retained those monies for her own benefit. The Bank says that Mrs Toksoz is, therefore, liable to account for those monies to it in accordance with the principles discussed in Black v S. Freedman & Co (1910) 12 CLR 105, and Heperu Pty Ltd v Belle (2009) 258 ALR 727. 10 One of the strongest planks in the Bank's case against both Mr and Mrs Toksoz is that the sources of large deposits into the accounts of Mr Toksoz, Mrs Toksoz and Mr Toksoz's company, G-Star Solutions Pty Ltd, during the relevant period are completely unexplained. Investigations into the financial affairs of Mr and Mrs Toksoz disclose no source of income of sufficient magnitude to explain the deposits. Mr and Mrs Toksoz themselves have proffered no explanation. Indeed, Mr Toksoz has adduced no evidence at all and the only evidence which Mrs Toksoz has adduced is the report of an expert accountant commenting upon a report produced by the Bank's expert. Both Defendants, in their Defences, deny or do not admit the allegations in the Bank's Amended Statement of Claim but plead no affirmative case. 11 A major issue in the trial was the identification of the fraudsters from transactions filmed on closed circuit television (CCTV). One of the fraudsters, who appeared in all transactions filmed, was said to be Mr Toksoz. On some occasions, the man was seen in the company of a woman, suggested to be Mrs Toksoz. Mr and Mrs Toksoz were not present at any time during the trial. No explanation for their absence was given. Mr Toksoz was represented by D. Eardley of Counsel and Mrs Toksoz was represented by Mr P. Bolster of Counsel. The issues

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The evidence in categories (c) and (d) is not in dispute. 17 Mr Damiano's evidence contains a detailed analysis of the fraudulent transactions, their links to Mr and Mrs Toksoz and the movement of monies between the accounts. The Bank has prepared twenty-seven detailed chronologies linking the evidence against Mr Toksoz and his involvement in the fraud against each victim. 18 The Bank says that Mr Toksoz's modus operandi was, with some variations, as follows. 19 Customers of the Bank are provided with a customer number, which is unique to each customer. To use telephone banking, customers are also issued with an access code. If a customer rings the Bank and says that he or she has forgotten or does not know his or her customer number or access code, he or she is asked a series of questions, which can be conveniently described and "wallet" and "non-wallet" questions. 20 A "wallet" question is one which is capable of being answered if someone has possession of the customer's wallet, which is likely to contain the full name and date of birth of the customer. "Non-wallet" questions are those which a person is unlikely to be able to answer simply by possessing a customer's wallet. 21 If the Bank is satisfied with the answers to the "wallet" and "non-wallet" questions, it tells the supposed customer his or her customer number and issues them over the phone with a new access code. In this case, in each of the twenty-four frauds involving telephone banking, the fraudster was issued with a new access code. 22 The Bank alleges that Mr Toksoz, or a person acting in concert with him, contacted Westpac, usually by means of telephone banking, and, armed with knowledge of a customer's details including the answers to "non-wallet" questions, applied to have an access code to the telephone banking reissued. There is no evidence as to how Mr Toksoz, or the person acting in concert with him, knew the correct answers to the "non-wallet" questions which were asked. That remains a matter of speculation. It is highly probable that an employee of the Bank was an accomplice in the frauds and supplied the information. 23 The Bank says that once Mr Toksoz had the customer number and access code for a customer, he was able to find out the balance in that customer's account by telephone banking. He was also able to change the address and telephone number linked to the customer's account to a telephone number and address controlled by him. After the address and telephone number for the account had been changed, Mr Toksoz would report the customer's credit card as lost or stolen and would arrange for a new card to be sent to the new address for the customer, which he had fraudulently changed. 24 When a new card is issued a personal identity number (PIN) is sent by mail to the customer's address. Once Mr Toksoz had a customer's card and the PIN for that card, he was able to use the card to withdraw funds from accounts linked to that card at ATM machines and to purchase goods using electronic funds at point of sale. 25 The Bank says that Mr Toksoz was able to, and did, transfer funds from the accounts of one victim to the accounts of other victims. The funds were then used to make purchases or were transferred to a "warehouse" account or accounts before ultimately being deposited into the accounts of Mr Toksoz, G-Star and Mrs Toksoz. 26 There is only one case in which a fraudulent withdrawal is made from a victim's account and deposited directly into Mr Toksoz's account. On 30 May 2009, $9,999 was transferred from an account in the name of victim BH to a credit card account in the name of Gino Versace. "Gino Versace" was a name used by Mr Toksoz, as Mr Eardley concedes. 27 Apart from that transfer directly to him, there are four kinds of evidence that link Mr Toksoz to the frauds. 28 First, the Bank says that Mr Toksoz was filmed on CCTV using fraudulently-obtained customer cards in purchase transactions and withdrawals from ATMs. Mr Eardley and Mr Bolster say that I should not be satisfied that the person shown on the CCTV footage is, in fact, Mr Toksoz. 29 Second, addresses of victims were changed to addresses associated with Mr Toksoz. 30 Third, phone numbers of victims were changed to phone numbers used by Mr Toksoz. 31 Fourth, in two cases, telephone records establish that calls were made to Westpac telephone banking from numbers associated with Mr Toksoz at the same time as Westpac records show access codes or other information from customer accounts were being changed. Identifying victims and their particulars

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36 On 18 May 2007, a person falsely claiming to be ME successfully applied to the Bank for a credit card in the name of ME, giving as the address for the cardholder 100 Greystanes. 100 Greystanes was the address at which the subscriber to M013 was registered. The subscriber to that mobile phone was Cansever Toksoz, the sister of Ersever Toksoz. 100 Greystanes was also the address fraudulently given for victim AM. The land-line phone number fraudulently given for the credit card holder ME was LL000, which was also the number fraudulently given for victim MW. 37 On 21 May 2007, a credit card in the name of victim ME was sent to the Westpac branch at Auburn for collection. On 2 June 2007, the card was collected from the branch. The person who picked up the card, a man, was filmed on CCTV. 38 Between 2 and 7 June 2007, the card in the name of victim ME was fraudulently used for purchases, using EFTPOS facilities, and also ATMs, in an amount totalling $12,220.69. One of those transactions was a cash withdrawal on 2 June at a NAB ATM in Auburn, effected within five minutes of the collection of the card from the Westpac Auburn branch. The person making that cash withdrawal was filmed on CCTV. 39 Another of the transactions was a purchase totalling $182.57 on 3 June 2007 at Caltex Woolworths, Merrylands. The man making that purchase was filmed on CCTV. 40 Another of the transactions was a purchase on 4 June 2007 totalling $46.35 at a chemist's shop. The man making that purchase was filmed on CCTV. 41 As I have said, Ersever Toksoz did not appear in Court during the trial. However, there are in evidence clear photographs of him produced on subpoena by the Police and by the Roads and Traffic Authority. The Police photographs include a full length photograph, showing a man of stocky build, somewhat overweight. The photographs include full frontal and profile photographs. The features are distinctive. The hair is thick, dark and slicked down flat to the head. 42 I have studied the CCTV footage of these four transactions closely, as well as the CCTV footage of other transactions to which I will come shortly. Although the quality of the picture varies - the picture for some transactions is in colour, in others black and white, in some quite clear, in others grainy and badly lit - I have no doubt whatsoever that the man shown in all of these transactions is Ersever Toksoz. 43 Accordingly, I am satisfied beyond any doubt at all that it was Mr Toksoz who collected ME's credit card from the Auburn branch of Westpac and fraudulently used it to carry out three transactions between 2 and 4 June 2007. Victim MM

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50 On 9 October 2006, via telephone banking, IB's access code was changed and his address was fraudulently changed to PO Box 98, Pendle Hill. That post office box was leased to Cansever Toksoz, who is the sister of Ersever Toksoz, and who gave her address as 2 Pendle Hill. In June 2006, Gulay Toksoz gave her address as 2 Pendle Hill to open a new Commonwealth Bank account. In June 2006, Ersever Toksoz also used the 2 Pendle Hill address to open a Commonwealth Bank account. On 27 April 2006, Ersever Toksoz gave 2 Pendle Hill as the address for his account to Westpac. 51 On 9 October 2006, Westpac was notified that IB's wallet was lost or stolen and new credit cards were requested to be sent to PO Box 98, Pendle Hill. 52 Between 11 and 30 October 2006, IB's credit cards were fraudulently used to withdraw cash and purchase goods, to a total value of $65,342.25. 53 On 12 October, IB's telephone number was fraudulently changed by on-line banking to M784. That number was also fraudulently used for victim MM. 54 On 24 and 25 October, IB's bank account received transfers fraudulently effected from the accounts of another victim, MM. 55 On 26 October, IB's newly issued credit card was used at Harvey Norman, Auburn, to purchase goods to the value of $9,979. The man making the purchase was filmed on CCTV. I am satisfied that the man was Ersever Toksoz. 56 On 27 October, IB's new credit card was fraudulently used to purchase goods at a chemist's shop, to the value of $326.90. The man making the purchase was filmed on CCTV. I am satisfied that the man was Ersever Toksoz. 57 On 29 October 2006 at 00:44am, IB's new credit card was fraudulently used to withdraw cash from an ATM at Circular Quay. The man effecting the withdrawal was filmed on CCTV. I am satisfied that the man was Ersever Toksoz. 58 Three hours later the same day, IB's other new credit card was used in a fraudulent attempt to withdraw cash from an ATM at Darlinghurst. The man attempting to effect the withdrawal was filmed on CCTV. I am satisfied that the man was Ersever Toksoz. Victim KW

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122 In the 2005 financial year Ersever Toksoz had a disclosed taxable income of $3,213, and Mrs Toksoz and G-Star (whose sole director was Mr Toksoz) filed no tax returns. In the five months period from February 2005, when the frauds against the Bank began, to June 2005, the total amount deposited into the accounts of Mr and Mrs Toksoz and G-Star was $125,963.31. The source of the money has not been explained. 123 In the 2006 financial year, Mr Toksoz's disclosed income was $4,837. Mrs Toksoz and G-Star filed no tax returns. During this financial year, the amount deposited into the accounts of Mr and Mrs Toksoz and G-Star was $231,200.79. The source of the money has not been explained. 124 In 2007, Mr Toksoz's disclosed income was $29,937, Mrs Toksoz filed no tax return and G-Star's tax return disclosed income of $2,046. During this financial year the total amount deposited in the accounts of Mr and Mrs Toksoz and G-Star was $639,643.64. The source of the money has not been explained. 125 In summary, during the relevant period from February 2005, when the frauds commenced, and November 2007, when they ceased, Mr and Mrs Toksoz received over $1,100,000 into their bank accounts, over $600,000 of which was received into accounts conducted by Mrs Toksoz alone, the remaining going into their joint accounts or the account of G-Star. During that period, according to tax returns filed, the total cumulative income of Mr Toksoz was under $50,000. Mrs Toksoz filed a tax return only for the financial year 2008 in which she declared an income of $2,659. G-Star filed tax returns disclosing an income of $2,046 in 2007 and $113 in 2008. 126 On 25 March 2008, the Court made asset freezing orders against Mr and Mrs Toksoz and required them to file affidavits disclosing their assets. Mr Toksoz's affidavit, dated 11 April 2008, disclosed assets of $40 in cash and no other asset of any value. 127 Mrs Toksoz's affidavit, dated 10 April 2008, disclosed the property 4 Granville as owned by her, unencumbered, which she had just sold for $510,000, from which, after deducting sale expenses, she would receive $495,000 on completion of the sale. Mrs Toksoz's proportion of the nett proceeds of sale attributable to unexplained deposits is $179,917.69: see Mr Williams' report 1 December 2010, Appendix 3. Mrs Toksoz also disclosed:

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credit card liabilities totalling $64,000. 128 In answers to interrogatories, Mrs Toksoz did not explain the sources of any of the deposits made into her accounts except to say that she made the deposits by transferring funds from other accounts which she did not identify. She claimed to have been employed for eight months in 2005 but gave no further information about her income and the nature of her employment. She said that she was employed in 2006 by "Hewitt House", but could not say when she was employed except that "it was for a period of three [sic] commencing in early to mid-2006". The omitted word is probably "months". 129 In her answers to interrogatories, Mrs Toksoz disclosed no other source of income except a single parent benefit from Centrelink of $1,300 per month. 130 During the period from February 2005, when the frauds began, to March 2008, just before the asset freezing order was obtained, there were 114 unexplained deposits into the bank accounts of Mrs Toksoz, totalling $886,268.10, and fourteen unexplained deposits into the joint account of Mr and Mrs Toksoz, totalling $53,574.23. A bank cheque for $18,000 dated 12 April 2007 was purchased by Mr Toksoz and made out in favour of Mrs Toksoz, and a bank cheque for $75,000, dated 16 July 2007, was also purchased by Mr Toksoz and made out in favour of Mrs Toksoz. 131 In total, Mrs Toksoz received $1,032,860.33 during the relevant period. Of that amount, the Bank claims that $868,655.33 came from the frauds committed by Mr Toksoz against its twenty-seven customers - the difference between that amount and the total received by Mrs Toksoz, i.e. $164,205, is clearly from sources other than the frauds committed against the Bank's customers but the sources of those funds are not explained. 132 It is clear that, before the frauds against the Bank commenced, there were deposits into the accounts of Mr and Mrs Toksoz which cannot be explained by their disclosed incomes. For example, excluding Centrelink payments, $3,200 was deposited in December 2004 and $6,890 was deposited in January 2005. In February 2005, when the frauds commenced, the deposits jumped to $53,316. The total amounts deposited per month thereafter varied considerably - never below $4,000, often above $20,000 and, on three occasions, more than $100,000 and on one occasion - in March 2008 before the asset freezing orders were obtained - more than $150,000. After the asset freezing orders, the monthly deposits fell dramatically: $1,921 in May 2008, $3,358 in June and $3,092 in July. 133 The Bank retained an expert forensic accountant, Mr John Williams, to conduct an analysis of the deposits into the accounts of Mr and Mrs Toksoz and G-Star in comparison with the amounts misappropriated from the accounts of the twenty-seven Bank customers. Mr Williams prepared three reports, dated 24 March, 1 December and 8 December 2010. The reports are meticulous and exhaustive in their detail. 134 Mr Williams proceeded on the basis that it was unlikely that amounts misappropriated from the accounts of the twenty-seven Bank customers would be deposited into the accounts of the fraudsters within a very short space of time, for example, within the same month. Accordingly, he did a cumulative comparison, taking the cumulative value of the misappropriations during the period from February 2005 to November 2007, when the frauds ceased, and comparing it with the cumulative value of unexplained deposits into the accounts of Mr and Mrs Toksoz and G-Star from February 2005 until 25 March 2008, when the asset freezing orders were obtained. In my opinion, that was an entirely appropriate and sensible basis of analysis. 135 Mr Williams found that "there is a high level of correlation between the amounts of the unexplained deposits into the accounts of Mr and Mrs Toksoz and G-Star and the amounts from the victims' accounts which received money from the victims' accounts": 24 March 2010 report, para 19. Despite some adjustment to his calculations in his second and third reports, Mr Williams remained of that view. 136 In cross examination, Mr Williams said: "I was asked to examine whether I thought there was a pattern between the withdrawals and the deposits, and my conclusion was that there was because it is an extraordinarily similar pattern over the course of a lengthy period between those unexplained deposits and those withdrawals. … I certainly didn't assume that it was Westpac money. I cannot definitively say it is Westpac money. However, I can say that there is an extraordinary pattern which exists between the deposits and the withdrawals.

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Q. Is it not the case that, if you were to look at a number of customers of Westpac, you may very well see a similar pattern in terms of unexplained deposits to their accounts when you compare it to withdrawals from the victims' accounts? A. My own view is the odds of finding two sets of data, one of withdrawals from … so, if we take, for example, withdrawals from your accounts and we compare it to deposits in mine, I would be shocked if they even ended up at a similar amount. I am not making any assumption about both of our respective expenditures. All I am saying is that with two completely unrelated sets of data I would not expect the scale of the end result to be similar, let alone the pattern of withdrawals, compared to deposits, to track so closely over a lengthy period of time. I would find it extraordinary. So, while there may be a chance that … while there may be a very, very small chance that that data would track along a similar line, it would be extraordinarily remote." 137 Mr Halligan, the accounting expert called on behalf of Mrs Toksoz, had not been asked to conduct a tracing exercise similar to that done by Mr Williams nor had he been asked to check the accuracy of Mr Williams' figures. He had been asked to express an opinion on Mr Williams' methodology and reasoning. 138 Mr Halligan calculated statistical correlation coefficients between withdrawals from victims' accounts in a particular month and deposits into the Toksoz accounts in the same or the following month. However, that was not the exercise which Mr Williams did nor was it a sensible exercise to do, bearing in mind that it was not inherently probable that a fraudster would take money out of a victim's account and deposit the sum in another bank account within a very short space of time. I did not find that Mr Halligan's comments as to Mr Williams' methodology weakened the conclusions to which Mr Williams had come. 139 In determining whether any of the proceeds of Mr Toksoz's frauds on the Bank were received into Mrs Toksoz's accounts I must draw inferences. I have regard to the following facts:

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there is no evidence of any inquiry made by Mrs Toksoz as to the source of the funds deposited into her accounts by Mr Toksoz. 141 In those circumstances, I have no hesitation in drawing the inference that Mrs Toksoz had actual knowledge that the funds she received into her accounts were derived from Mr Toksoz's frauds on the Bank. Accordingly, Mrs Toksoz knew the facts constituting the funds which she had received as trust funds in the hands of Mr Toksoz and as trust funds in her own hands when she received them from him: see Evans & Associates v European Bank Ltd (2004) 61 NSWLR 75 at [111]-[113] and the authorities there cited. 142 In drawing these inferences, I have regard to what was said by the Court of Appeal in United States Surgical Corporation v Hospital Products International Pty Ltd [1983] 2 NSWLR 157, at 258E: "… the plaintiff seeking to make good an equitable right must, in our opinion, prove that the adversary acquired the property in suit with knowledge of that right. As we have endeavoured to show, this requirement may be satisfied if the evidence establishes facts which, to a reasonable man, would demand inquiry, and the absence of that inquiry. We do not doubt that the plaintiff must prove those facts by leading the necessary evidence; and must, at the end of the day be able to point to the absence of inquiry. But we consider that once the plaintiff has led that evidence, an evidentiary onus falls upon the defendant to prove inquiry if he can; and thus to rebut, by means which lie in his hands rather than the plaintiff's, the inference which the facts, unanswered and unexplained, would readily permit. In the present case HPL made no attempt to discharge that burden. In the absence of evidence from the quarter from which, if available, it should have come, we conclude that HPL made no inquiries, and that this omission was deliberate and prompted by the conviction that inquiries would reveal the truth of what USSC alleged. For these reasons, we are of the opinion that HPL acquired the assets it took in the take over with knowledge that rendered it accountable to USSC as a constructive trustee."

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144 Mr Williams has identified a total of $1,117,349.99 (before deducting recoveries by the Bank) as having been misappropriated from the twenty-seven victims' accounts: Exhibit P37, para 19. Of that sum, $149,819 is shown as EFTPOS transactions. Of those transactions, $24,000 was withdrawn in cash, so that $125,819 of the Bank's funds was expended on goods and services. 145 Mr Bolster says, correctly, that there is no evidence that it was Mrs Toksoz who derived the benefit of those goods and services nor is there evidence that the value of those goods and services can be traced into the hands of Mrs Toksoz. He submits that there is no basis upon which Mrs Toksoz can be accountable to the Bank for the value of those goods and services. 146 Mr Bell submits that even if the goods and services acquired from Bank funds were entirely for the benefit of Mr Toksoz, nevertheless Mrs Toksoz is accountable to the Bank for their value because Mr Toksoz, in acquiring the goods and services, did not have to use his own money to do so: he was therefore able to transfer into Mrs Toksoz's accounts more cash than he would have had available if he had not used the Bank's money to acquire the goods and services. 147 Mr Bell has not cited any authority in support of this proposition as an available means of tracing. The difficulties in the concept are discussed in Fratcher's "Scott on Trusts" (4th Ed) para 521, p 654, thus: "It can be argued … that the victim should have priority out of the wrongdoer's estate because but for the wrong the estate would have been diminished. Ordinarily, however, it is impossible to show whether the wrongdoer would have made payments out of his estate if he had not obtained the money from the victim that in fact he used in paying the debt. The courts, therefore, have generally refused to speculate on what the wrongdoer might have done with his own property if he had not committed the wrong." 148 I do not think that the principles of tracing can be called in aid to hold Mrs Toksoz accountable for the value of goods and services acquired by Mr Toksoz unless it can be shown that she actually received those goods and services or their value. As was said by Lord Millett in Foskett v McKeown [2001] 1 AC 102, at 128: "Tracing is … neither a claim nor a remedy. It is merely the process by which a claimant demonstrates what has happened to his property, identifies its proceeds and the persons who have handled or received them, and justifies his claim that the proceeds can properly be regarded as representing his property. Tracing is also distinct from claiming. It identifies the traceable proceeds of the claimant's property. It enables the claimant to substitute the traceable proceeds for the original asset as the subject matter of his claim. But it does not affect or establish his claim.

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That passage was quoted with approval by the Court of Appeal in Evans & Associates v European Bank Ltd (supra). 149 Accordingly, although the whole of the unrecovered proceeds of the frauds, $868,655.33, can be recovered from Mr Toksoz as damages, $125,819 of that sum cannot be traced into the hands of Mrs Toksoz. It follows that only $742,836.33 of the misappropriated unrecovered funds in the form of cash can - possibly - be traced into the hands of Mrs Toksoz through deposits into her bank accounts. 150 It is clear that more than $742,836 has been deposited into Mrs Toksoz's accounts from unexplained sources. The evidence shows that, at least as at 10 April 2008, Mrs Toksoz had remaining assets to the value of $769,543, comprising cash in her accounts and real estate acquired by use of cash in her accounts from time to time. It may be that some of the cash in Mrs Toksoz's accounts came from sources other than funds misappropriated from the Bank by Mr Toksoz. It may be that Mrs Toksoz used her own money, as well as the Bank's money, in making deposits, withdrawals, discharging her home loans and acquiring property. However, what is clear is that $742,836.33 of the deposits in Mrs Toksoz's accounts is unexplained and could have come from the frauds against the Bank's customers. In the absence of explanation otherwise, I infer that money totalling that sum was indeed the proceeds of Mr Toksoz's frauds against the Bank and was therefore held by Mrs Toksoz on a resulting trust for the Bank. 151 Mrs Toksoz has mingled the money held by her on a resulting trust for the Bank with other money, possibly her own. Whatever might be the amount which she has dissipated out of the mingled fund over the years, the law holds that what is now untraceable has been expended out of her own money in preference to the money held on trust for the Bank: Re Hallett's Estate (1879) 13 Ch D 696. It follows that, of her remaining assets, both in cash and in real estate, assets to the value of $742,836, together with accrued interest, are held by Mrs Toksoz on trust for the Bank. 152 The Bank therefore succeeds in its Barnes v Addy claim against Mrs Toksoz so that she is liable to account as a trustee for $742,836 together with interest. The trust property comprises her remaining cash (including any interest earned on that money since it came into her accounts) and any interest in real estate acquired by Mrs Toksoz using the cash which was deposited into her accounts during the period from February 2005 to April 2008. 153 There is no evidence that Mrs Toksoz received the proceeds of Mr Toksoz's frauds other than as a volunteer. Accordingly, even if I had held that Mrs Toksoz had no notice of the fact that the deposits into her account included the proceeds of Mr Toksoz's frauds against the Bank until she was served with these proceedings, from that date onwards she would have been liable to account to the Bank for $742,836 together with interest in accordance with the principles discussed in Black v S. Freedman & Co (supra) and Heperu Pty Ltd v Belle (supra). Orders

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