Heperu Pty Limited v Belle [No 2]

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Heperu Pty Limited v Belle [No 2] [2010] NSWCA 13

FILE NUMBER(S):
40107/08

HEARING DATE(S):
17 November 2009

JUDGMENT DATE:
12 February 2010

PARTIES:
Heperu Pty Limited
Kirisi Holdings Pty Limited
Patrice Belle (formerly Patrice Cincotta)

JUDGMENT OF:
Allsop P Campbell JA Handley AJA   

LOWER COURT JURISDICTION:
Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):
6165/03

LOWER COURT JUDICIAL OFFICER:
Palmer J

LOWER COURT DATE OF DECISION:
12 December 2007

LOWER COURT MEDIUM NEUTRAL CITATION:
Heperu Pty Ltd & Ors v Morgan Brooks Pty Ltd & Ors (No 2) [2007] NSWSC 1438

COUNSEL:
G K Burton SC, C L Cochrane (Appellants)
J S Van Aalst (Respondent)

SOLICITORS:
Thomas Henry Bray, Sydney (Appellants)
Hardings Lawyers, Sydney (Respondent)

CATCHWORDS:
REMEDY - further submissions as to tracing - assessment of benefit ordered

LEGISLATION CITED:

CATEGORY:
Procedural and other rulings

CASES CITED:

TEXTS CITED:

DECISION:
1.  Allow the appeal and set aside orders 1 and 2 made by the Equity Division on 4 February 2008 and entered on 12 March 2008 and in lieu thereof remit the matter to the primary judge for assessment of the value of the traceable benefit (if any) in the retained relevant properties held by the respondent when she received notice that misappropriated funds had been paid into the Westpac account, the primary judge in the conduct of such assessment, subject to the reasons of this Court on 26 August 2009 and 12 February 2010, be free (a) to assess the amount of that benefit (if any) to be payable to the appellants; (b) to assess and make an order in respect of costs of the first hearing before him and of the assessment; and (c) to order the payment of any such sum found to be such benefit.
2.  The parties file written submissions on costs within 14 days.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40107/08

ALLSOP P
CAMPBELL JA
HANDLEY AJA

Friday 12 February 2010

HEPERU PTY LTD v BELLE [No 2]

1. ALLSOP P:  On 26 August 2009, the Court made orders for the filing of further submissions on the question of tracing.  The parties completed their submissions in this respect on 17 November 2009.

2. The submissions on both sides were detailed.  The purpose of the submissions was to permit the appellants an opportunity to demonstrate what was referred to in [170] of my earlier reasons:

   “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, the appeal should be allowed and the case remitted to the Equity Division for assessment.”

3. I am satisfied that, on the approach referred to at [111]-[116] of my earlier reasons ([2009] NSWCA 252), the way I expressed the matter in [118] of those reasons (that “the following payments into the Westpac account can be seen to be referable to these funds”, being the misappropriated funds…