Golden Star Resources Limited v Keryn Beatrice Rosel
[2009] QSC 443
•25 February 2009
SUPREME COURT OF QUEENSLAND
CITATION:
Golden Star Resources Limited & Anor v Keryn Beatrice Rosel [2009] QSC 443
PARTIES:
GOLDEN STAR RESOURCES LIMITED
Applicant/Plaintiff
GOLDEN STAR (BOGOSO/PRESTEA) LIMITED
Applicant/Second Plaintiff
BOGOSO GOLD LIMITED
Applicant/Third Plaintiff
v
KERYN BEATRICE ROSEL
Respondent/Defendant
FILE NO/S:
BS 8032 of 2007
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court Brisbane
DELIVERED ON:
25 February 2009
DELIVERED AT:
Brisbane
HEARING DATE:
25 February 2009
JUDGE:
White J
ORDER:
1. The defendant pay to the plaintiffs the sum of $1,041,940, plus interest of $260,537.30 to the date of judgment, being a total of $1,302,477.30.
2. The defendant pay to the second plaintiff the sum of $491,670, plus interest of $109,987.62 to the date of judgment, being a total of $601,657.62.
3. The plaintiffs are entitled to trace the sum of $98,146.49 which they paid to the defendant by reason of the defendant’s fraudulent misrepresentations and breaches of fiduciary duty into the QLD property.
4. The plaintiffs are entitled to trace the sum of $944,435.17 which they paid to the defendant by reason of the defendant’s fraudulent misrepresentations and breaches of fiduciary duty into the NSW property.
5. John Richard Park and David John Winterbottom be appointed as joint and several receivers to the QLD property and the NSW property pursuant to s 246 of the Supreme Court of Queensland Act 1995 (Qld) and r 272 of the UCPR, or alternatively, in respect of the NSW property, pursuant to s 67 Supreme Court Act 1970 (NSW).
6. The receivers shall:
(a) sell the QLD property and the NSW property at public auction;
(b) be authorised to engage qualified real estate agents to advertise the QLD property and the NSW property for sale and to conduct the auctions;
(c) be at liberty to sell the QLD property and NSW property by private treaty prior to the auctions;
(d) pay the proceeds of the sale of the QLD property and the NSW property as follows:
(i) to Westpac, to discharge the QLD Mortgage and the NSW Mortgage;
(ii) to meet the costs of and incidental to the sale;
(iii) to meet the receiver’s costs of the receivership;
(iv) to the plaintiffs in discharge of their interests in the QLD property and the NSW property pursuant to these orders;
(v) the balance (if any) be held by the receiver subject to an accounting or any other moneys owing from the defendants to the plaintiffs;
(vi) the balance of any monies remaining after payment of any monies owing to the plaintiffs be paid by the receivers to the defendant;
(e) otherwise, have the powers set out in s 420 of the Corporations Act 2001 to the extent that those powers are not inconsistent with these orders.
7. The defendant pay the plaintiffs’ costs of and incidental to the proceedings, including this application, on an indemnity basis.
8. Save as set out above, to the extent to which the application filed 13 February 2009 relates to the costs payable to the plaintiffs, that the hearing of that application be adjourned to a date to be fixed to allow submissions on the quantum of costs.
CATCHWORDS:
Uniform Civil Procedure Rules, r 288
COUNSEL:
SOLICITORS:
Blake Dawson for the applicants
The plaintiffs seek judgment against the defendant in default of filing a notice of intention to defend and defence.
These proceedings concern a claim to recover the proceeds of moneys belonging to either the first or the second plaintiff which were misappropriated by the defendant. It includes tracing those moneys into two properties of which the defendant is the registered proprietor: one property in Queensland near Rockhampton, the other in New South Wales in Sydney.
The matter has been painstakingly argued by Mr Brady of counsel and the extensive written submissions which he has provided, together with the careful analysis of the material, has persuaded me that the declarations in the orders sought ought to be made. Those submissions will be placed on the Court file and the perusal of them will serve as a useful introduction. The affidavit material of Mr Roger Palmer, the vice-president of finance and corporate controller of the first plaintiff, provides the evidence to support the orders.
In the first place it's necessary to indicate that the defendant, whom I shall refer to as Ms Rosel, has been served with the amended claim and statement of claim by personal service. Those documents were delivered to her in Dubai in the United Arab Emirates. The affidavit of service of Hemsa Abdulla deposes to Ms Rosel positively identifying herself when asked was she Keryn Beatrice Rosel and then handed the material. Personal service is necessary under the Service and Execution of Process Act. There is material to demonstrate that such personal service is not inconsistent with the law in the United Arab Emirates. I am therefore satisfied that the defendant is well aware of these proceedings.
The first plaintiff is a corporation incorporated under the laws of Canada carrying on the business of gold mining, including in Ghana in West Africa. The second plaintiff is a company incorporated under the laws of Ghana and is a 90 per cent owned subsidiary of the first plaintiff.
The financial head office of the first plaintiff is in Denver, Colorado. The defendant is an Australian citizen and was employed by a subsidiary of the plaintiff in Ghana as a project accountant. There is some analysis of Ms Rosel's spelling of her name. It's unnecessary to deal with that further in these reasons save to say that I am satisfied that "Kerryn K-E-R-R-Y-N Rosell R-O-S-E-L-L" was the same person as "Keryn K-E-R-Y-N Rosel R-O-S-E-L."
She was employed from 19th of October 2005 until the 8th of October 2006 when she resigned. As project accountant she as responsible to the general manager projects for the safe, efficient and cost effective operation of project finance activities. She was the leader of a team of three accountants. Part of her duties involved reviewing invoices presented to the second plaintiff for payment, ensuring that either that entity or the first plaintiff was liable to pay the amount described in the invoice and directing that payment of the invoices to be made by the first or second plaintiff.
She was responsible for all the approvals completed within her group.
Mr Palmer sets out the usual processes that were employed by this group about the payment of invoices. It's unnecessary for me to set out that detail, it appears in paragraph 12 of his affidavit.
Ms Rosel was entrusted by the plaintiffs to ascertain whether or not the invoice was accurate and whether or not there was an obligation to pay the invoice and to obtain approval for the payment.
Once that occurred the staff in the Denver office would process the directive to pay the invoice and make any wire transfers to meet the obligations to the providers of the services or products the subject of the invoices. The invoices indicated to what bank account those moneys should be paid.
The analysis of the invoices, according to Mr Palmer, indicates that Ms Rosel in her capacity as project accountant misappropriated funds amounting to $1,533,610. The evidence demonstrates that she did this by producing false invoices in the name of one of two suppliers who had previously provided goods or services to the second plaintiff. They were Alloytech Pty Ltd and John W Macintyre and Associates Pty Ltd. The letterheads of those companies were either superimposed or in some way put on false invoice vouchers. There appear to be forged signatures approving payment of the invoices by the necessary authorising officer within the company and identifying one of two bank accounts to which the moneys were to be transferred.
By order of the Western Australian Supreme Court the first plaintiff obtained an order for pre-action discovery in respect of the two bank accounts the subject of the transfers in respect of alleged moneys owing to Alloytech and Macintyre. The BSB numbers of those bank accounts were the same as those in the invoices and those bank accounts were established in the name of Ms Rosel. The evidence shows from the bank statements for those accounts that the sums of money were received from the plaintiffs into those accounts at or about the time of the transfer from Denver. There were seven separate transactions by which funds were transferred into the accounts.
In January 2007 the second plaintiff began a reconciliation of all payments for contracts and purchases from the particular project in respect of which the alleged services the subject of these proceedings related. As a result of that reconciliation it became plain to the plaintiffs that false invoices were deployed to direct the moneys to the two Westpac bank accounts.
Furthermore, a chain of e-mails relating to these accounts and the payments was discovered within the records of the companies. This shows Ms Rosel explaining the reason why the payments were made into Australian bank accounts different from the arrangements that hitherto had prevailed or which were to prevail in the future with respect to these accounts.
This material demonstrates to my satisfaction to the requisite standard consistently with the test in Briginshaw that Ms Rosel fraudulently misappropriated funds belonging, in the case of the first six transfers to the first plaintiff and the seventh to the second plaintiff.
Westpac also provided funds to complete the purchase of two properties to which I've made reference and the settlement documents indicate that on or about the 9th of November 2006 Ms Rosel caused $98,146.49 to be withdrawn from one of the bank accounts for the purpose of settling the Queensland property and on the 20th of November 2006 she caused $170,000 to be transferred out of one of the bank accounts and paid as a deposit for the purchase of the New South Wales property. On the 23rd of January 2007 she caused the sum of $797,113 to be transferred from that account to settle a New South Wales property.
She then became the registered proprietor of each of those properties. The analysis of the bank statements make it plain that the sums transferred at the request of the plaintiffs into those accounts and then paid out in partial settlement of the purchase of the two properties can be traced directly.
The Westpac Bank has been provided with the claim and statement of claim in this matter and has been notified of an intention to apply for the relief set out in the claim. It has indicated that since its interests have been acknowledged by the plaintiffs in these proceedings they do not intend to participate in this hearing.
It is proposed, apart from the declarations of fraudulent misrepresentation and breaches of fiduciary duty arising out of the facts and circumstances to which I have referred and which are more completely set out in Mr Palmer's affidavit, that declarations be made that Ms Rosel holds those properties on trust or constructive trust for the plaintiff; that they have equitable charges over those properties to secure their interests; and that those interests are caveatable interests.
The further orders relate to the payment of moneys which have been able to be demonstrated were taken from the plaintiff in the manner indicated, together with interest. The interest calculations will be appended to the draft order so that the manner in which it has been calculated can be readily seen.
Further orders relate to tracing of the two sums of money and an order that a receiver be appointed to the two properties with the usual orders about selling of the property and the order for the payment of the proceeds of sale of those properties first to the registered mortgagee Westpac and then in the usual manner follow.
The order further provides that the balance moneys, if any, are to be held by the receiver subject to an accounting of any other moneys owing from the defendant to the plaintiffs. The material suggests that there are some hundreds of thousands of dollars which may be attributable to this unlawful conduct. Any balance moneys remaining are to be paid by the receivers to Ms Rosel.
There is a further order that she pay the plaintiffs' costs of and incidental to the proceedings, including this application, on an indemnity basis. I'm persuaded that the extent of the wrongdoing is such that such an order is appropriate. Mr Brady wishes to put before the Court in affidavit form material going to the extent of the costs which have been incurred on that basis by the plaintiffs, but is not yet in a position to do so.
I adjourn so much of this application as relates to that matter to a date to be fixed and otherwise make the order as per draft.
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