Aslan v Pucci (No 3)

[2025] NSWSC 1027

Supreme Court

New South Wales

Medium Neutral Citation:

Aslan v Pucci (No 3) [2025] NSWSC 1027

Hearing dates:

27 August 2025

Date of orders:

27 August 2025

Decision date:

09 September 2025

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

The proceedings against the fourteenth defendant are dismissed pursuant to UCPR r 13.4(1)(b).

Catchwords:

CIVIL PROCEDURE – striking out and dismissal – application by the fourteenth defendant to have the proceedings dismissed pursuant to UCPR r 13.4(1)(b) or alternatively struck out pursuant to UCPR r 14.28 – no reasonable cause of action disclosed – proceedings dismissed

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1)(b), 14.28

Cases Cited:

Aslan v Pucci [2025] NSWSC 881

Aslan v Pucci (No 2) [2025] NSWSC 882

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

Shaw v State of New South Wales [2012] NSWCA 102

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Dina Aslan (Plaintiff)
Enrico Pucci (First Defendant)
Ross Pucci (Second Defendant)
Alfredo Pucci (Third Defendant)
Nicholas Tropea (Fourth Defendant)
Causbrook & Associates (Fifth Defendant)
Alfred Dean Pucci (Sixth Defendant)
Narghiza Ergashova (Seventh Defendant)
John-Paul Pucci (Eighth Defendant)
Shirina Holmatova (Ninth Defendant)
Patricia Ficarra (Tenth Defendant)
Berta Dias (Eleventh Defendant)
Dominic Carbone (Twelfth Defendant)
Sydney Law Practice Pty Ltd (Thirteenth Defendant)
Jason Michael (Fourteenth Defendant)
Campion Realty Pty Limited t/as Unique Property Inner West (Fifteenth Defendant)
Integrated Programmed Services Pty Ltd (Sixteenth Defendant)

Representation:

Counsel:
C Robertson (Tenth Defendant)
S Scott (Twelfth and Thirteenth Defendants)

Solicitors:
Plaintiff (self-represented)
Stewart & Associates (First, Second, Third, Sixth, and Sixteenth Defendants)
Wotton Kearney (Fourth Defendant)
Barry Nilsson (Fifth Defendant)
N Ergashova (self-represented and representing the Ninth Defendant)
Meridian Legal (Eighth Defendant)
Hunt & Hunt Lawyers (Tenth Defendant)
B Dias (self-represented)
Moray & Agnew (Twelfth and Thirteenth Defendants)
J Michael (self-represented)
H Dias (self-represented as prior director of the Fifteenth Defendant)

File Number(s):

2025/186499

Publication restriction:

Nil

REVISED EX TEMPORE JUDGMENT

1. This matter comes before the Court today to determine a number of applications pursued by a number of defendants. The matter has been before me on a number of occasions so far. Regard should be had to my earlier judgments: Aslan v Pucci [2025] NSWSC 881 and Aslan v Pucci (No 2) [2025] NSWSC 882.

2. As set out in my judgment of 15 July 2025, the plaintiff sues 16 defendants, seeking damages including aggravated and exemplary damages said to arise from her dealings in 2021 with the first, second, third, sixth and sixteenth defendants who I describe as the “Pucci defendants”. The genesis of these proceedings is that the first defendant became involved in a romantic relationship with the plaintiff. He then convinced her to lend approximately $490,000 to him. He then terminated the relationship and did not repay the money. She sued him in the District Court and obtained a judgment for approximately $490,000. He entered bankruptcy.

3. The plaintiff sues most of the defendants in the tort of conspiracy. As against a limited number of defendants she alleges that they have been involved in identity theft, intimidation and fraudulent conduct. Applications to strike out or dismiss the proceedings have been brought by the tenth, twelfth, thirteenth and fourteenth defendants. I have already dealt with the applications by the twelfth, thirteenth and tenth defendants.

4. The applications pursued by the twelfth and thirteenth defendants have been resolved following the submission of evidence and hearing of argument. The proceedings pursued by the plaintiff against those defendants have been dismissed by consent.

5. As against the tenth defendant, the plaintiff indicated that she was not ready to proceed for reasons which are not necessary to repeat. The application to dismiss or strike out by the tenth defendant has been stood over for further hearing on 10 September.

6. An application brought on behalf of the Pucci defendants to enable sufficient funds to be paid to their solicitor to properly defend the matter was brought today but, after some discussion with Mr Stewart who appears for the Pucci defendants, that application has also been stood over until 10 September 2025 for the purposes of allowing Mr Stewart to adduce further evidence (at my suggestion) should he wish to do so.

7. The application I am dealing with in this judgment is the application brought by the fourteenth defendant, Jason Michael, who is conveniently described as the mortgage broker. Mr Michael filed a motion on 24 June 2025 seeking orders that the proceedings be dismissed pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) or struck out pursuant to UCPR r 14.28. Mr Michael appears in person today. He relies on his affidavit of 24 June 2025.

8. Like in each of the earlier applications, the plaintiff says that she was unaware or did not have time to prepare her affidavit in response. She says she intended to prepare a lengthy affidavit dealing with each of the particular matters raised in the evidence as adduced by the other parties. As I indicated to the plaintiff, this matter was specially fixed for today for the purposes of dealing with these applications. She has been on notice of the applications, in this case since 24 June 2025.

9. In order to ensure that the plaintiff was afforded an appropriate opportunity to present her case and explain how she would respond to the applications, I permitted her (with the consent of the other parties) to explain from the bar table what evidence she proposed to adduce in her not yet completed affidavit.

10. I then said that I would assume the accuracy of what she asserted, only for the purposes of dealing with the applications. In other words, in respect of each of the applications, the plaintiff has been afforded an opportunity to state from the bar table what evidence she would be relying on and make any submissions she wanted to in respect to each application.

11. The fourteenth defendant seeks orders in the alternative. That is, he seeks that the proceedings be dismissed or, if they are not dismissed, they be struck out having regard to deficiencies in the pleadings. As I explained to the plaintiff, the power to strike out is a power which arises when pleadings are deficient. Striking out of the plaintiff’s statement of claim or amended statement of claim may result in granting her permission to re-plead.

12. As I also explained to the plaintiff, an application for dismissal really deals with the substance of the matter. It would be necessary for the party making the application to demonstrate that the proceedings are so hopeless or groundless that they cannot possibly succeed. See General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 129; Shaw v State of New South Wales [2012] NSWCA 102 at [32].

13. As is well known, the Court should exercise the power to dismiss proceedings cautiously and sparingly.

The case against the fourteenth defendant

14. The case against the fourteenth defendant is set out in paragraphs 175 to 180 of the amended statement of claim purportedly filed on 26 August 2025 (being the document on which the plaintiff seeks to rely). The fourteenth defendant confirmed that he has seen that document. Of course, in addition to those particular paragraphs, regard must be had to the introductory paragraphs and the claim for relief. The plaintiff describes the fourteenth defendant as being a financial broker and Justice of the Peace.

15. In paragraphs 175 to 180, she alleges that the fourteenth defendant played a central and deliberate role in the orchestration and execution of a sophisticated financial fraud scheme. The fourteenth defendant allegedly relied on the plaintiff’s identity theft and the fabrication of false documentation which formed a key element of the broader conspiracy led by the first defendant and involving numerous co-conspirators.

16. The plaintiff says that there will be substantial evidence that the fourteenth defendant was primarily responsible for financial manipulation and submission of forged tenancy agreements, created without the plaintiff’s knowledge or consent, using the plaintiff’s stolen identity. She says that these agreements were prepared by and through the other defendants and submitted by the fourteenth defendant for the purpose of obtaining a fraudulent loan. She pleads that the fourteenth defendant’s conduct constituted a fraud under s 192E of the Crimes Act 1900 (NSW), use of false documents under s 254 of the Crimes Act, and conspiracy to defraud as well.

17. She says his conduct was executed in concert with the other defendants to pursue a calculated and continuing pattern of fraud and deceit.

18. In his affidavit, the fourteenth defendant confirms that he acted as the mortgage broker in arranging the loan for the purchase of a property at 81 Gerald Road, Illawong. However, he says that he did not submit any tenancy agreements with the loan application. The mortgagee required valuation reports. Further, he says the property was sold with vacant possession, meaning there could not be any tenant in possession.

19. The plaintiff explained that her case against the fourteenth defendant is built upon his use of a tenancy agreement, which she acknowledged that she signed, but she says was ultimately changed in that the name of the owner/landlord was changed. She says that, without her permission, this document, which she agreed she signed, was used by the Pucci defendants for other purposes, including financial fraud and obtaining a loan to enable the transfer of the Illawong property.

20. As she identified, the only involvement of the fourteenth defendant is that he allegedly received the tenancy agreement, in circumstances where she says he must have known, or did know, that it was a fraudulent document (she says because, although she signed the document, the name of the owner had changed subsequently to her signing it) and that he used it for the purposes of obtaining a loan on behalf of his client, even though he must have known that it was not a genuine document.

21. She says that this means he wrongfully used her identity as a means of assisting the Pucci defendants, or one or other of the Pucci defendants, to obtain a loan to purchase the Illawong property.

22. When I asked the plaintiff as to the evidentiary basis of her assertion that the fourteenth defendant knew – using her words – that the tenancy agreement was a fraudulent document and that her identity had been stolen through use of the tenancy agreement, she said she had been told this by the seventh defendant. By way of background, and as emerged during the last hearing, on the plaintiff’s case, the seventh defendant had been assisting her by providing information to her about the fraud and conspiracy she alleges, but unfortunately stopped doing so at some particular time, seemingly after a payment of approximately $100,000 to her by one or other of the Pucci defendants.

23. In any event, the relevance or accuracy of that assertion will, no doubt, be considered at another time. The point is that, in terms of her case against the fourteenth defendant, it is based only on his alleged use of documentation, which she says she did not sign. She has always maintained that her identity was stolen because one or other of the Pucci defendants got her to sign a tenancy agreement, which then they used for their own financial purposes. Again, whether or not that be so, is a matter for another date, and will be subject to further evidence in due course.

24. There are two fundamental problems with the plaintiff’s case against the fourteenth defendant. Firstly, the cause of action such as it is, is based on the proposition that the fourteenth defendant used this allegedly fraudulent tenancy agreement for the purposes of assisting the Pucci defendants to transfer the Illawong property. The only evidence the plaintiff has to support such an assertion is that the seventh defendant told her this.

25. Yet, as the fourteenth defendant sets out in his affidavit, he would not have been able to do so, because the lender would want a valuation rather than a tenancy agreement to support the loan.

26. I might also say that reliance on a statement made by the seventh defendant about the conduct of the fourteenth defendant seems a particularly tenuous basis on which to be bringing proceedings against the fourteenth defendant.

27. More fundamental is the problem of loss. Whilst it is somewhat difficult to understand the cause of action pursued by the plaintiff against the fourteenth defendant, she accepts that she is not alleging that he was part of the same conspiracy as the Pucci defendants. She says he was part of the conspiracy to engage in identity theft and, in some way, intimidate her.

28. Although the plaintiff has been given ample opportunity to explain how the fourteenth defendant’s conduct, assuming it is as she alleges, caused her loss, she has been unable to do so. No doubt, if there was identity theft, that caused her considerable angst, anxiety and stress, but it did not cause her to suffer the financial loss which she pleads in the original statement of claim and in the further amended statement of claim. In simple terms, whatever the substance of the plaintiff’s allegations against the fourteenth defendant, she has not articulated any cause of action against him which would give rise to any claim for damages in her favour.

29. In the circumstances, the plaintiff’s action against the fourteenth defendant is untenable. It is doomed to fail.

30. In all these circumstances, the proceedings against the fourteenth defendant are dismissed pursuant to UCPR r 13.4(1)(b).

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Decision last updated: 09 September 2025