Heperu Pty Ltd and Ors v Patricia Belle

[2012] NSWSC 1647

Supreme Court

New South Wales

Medium Neutral Citation:	Heperu Pty Ltd & Ors v Patricia Belle [2012] NSWSC 1647
Hearing dates:	21 March 2012
Decision date:	20 August 2012
Jurisdiction:	Common Law
Before:	Slattery J
Decision:	Judgment in the sum of $89,970.01 for the plaintiff against the fourth defendant, including interest up to judgment. Court will proceed to decide issues of costs as between the plaintiff and the fourth defendant but not issues relating to enforcement of the plaintiff's judgment
Catchwords:	PROCEDURE - judgments and orders - satisfaction on set-off of judgments - costs - judgment entered against fourth defendant for $89,970.01 - whether Court should proceed to deal with questions arising out of the enforcement of the plaintiff's judgment against the fourth defendant in addition to issues of costs as between the plaintiff and the fourth defendant. HELD: Court will deal with the costs issues between the plaintiff and the fourth defendant only.
Cases Cited:	Heperu Pty Limited & Ors v Morgan Brooks Pty Limited & Ors (No. 2) [2007] NSWSC 1438 Heperu Pty Limited v Belle (2009) 76 NSWLR 230 Heperu Pty Limited v Belle (No. 2) [2010] NSWCA 13 Heperu Pty Ltd v Belle [2011] NSWSC 1151
Category:	Interlocutory applications
Parties:	Plaintiff- Heperu Pty Ltd Second Plaintiff- Kirisi Holdings Pty Limited Defendant- Patricia Belle
Representation:	Counsel: Solicitors: Plaintiff-T. Bray, Thomas Henry Bray Lawyer Fourth Defendant- litigant in person
File Number(s):	2003/87360
Publication restriction:	No.
Decision under appeal	Date of Decision: 2011-06-28 00:00:00 Before: Magistrate G. Walsh File Number(s): 2010/164046

Judgment

1. This judgment deals with three interlocutory matters in these proceedings. It follows upon my principal judgment, which was the Court's fourth judgment in the proceedings: Heperu Pty Ltd v Belle [2011] NSWSC 1151. The three matters dealt with in this judgment are: (1) the entry of agreed orders consequent upon my principal judgment; (2) the extent of the outstanding matters the Court will decide; and (3) directions in relation to the submissions lodged by the NAB and Westpac in relation to Exhibit 2. I will deal with each of these matters in turn.

(1) Judgment Including Interest

1. In my principal judgment the Court found that Heperu was entitled to recover $86,970.01 plus interest from Ms Belle and the Court directed the parties to bring in short minutes of order to give effect to those reasons: Heperu Pty Ltd v Belle [2011] NSWSC 1151 at [74]. The Court has been informed that the plaintiffs and the defendants agree that in conformity with the Court's reasons that the following orders should be made:

"1. Judgment for the Plaintiffs against the Fourth Defendant in the amount of $89,970.01 (the "Judgment Sum").

2. The Fourth Defendant pay interest on the Judgment Sum pursuant to Section 100 of the Civil Procedure Act (NSW) 2005 from 15 December 2003 to 15 September 2011 in the amount of $59,788.90."

1. The plaintiffs have given an undertaking to Ms Belle, the fourth defendant, not to take any steps to enforce orders 1 and 2, without first providing to the fourth defendant particulars of money that the plaintiffs have received from the other defendants in these proceedings. It is appropriate in my view for that undertaking to be reflected in a stay pending the Court's determination of the balance of the issues in the proceedings. Accordingly the Court's third order will be:

"3. Stay Orders 1 and 2 pending the Court's determination of the remaining issues in the proceedings."

(2) Scope of the Court's Determination

1. My principal judgment contemplated that the Court needed still to deal with two consequential matters, the question of costs and the enforcement of an order for payment to Heperu of the amount of any retained benefit: Heperu Pty Ltd v Belle [2011] NSWSC 1151 at [68] - [73]. After argument on 21 March 2012 and submissions from the NAB and Westpac in relation to documents tendered in relation to the question of enforcement, I have decided that the best course is for the Court to deal with the issues of costs of the main proceedings and defer issues of enforcement.

1. I have reached this conclusion for two main reasons. First, the parties who will principally benefit from a judgment on enforcement questions, the plaintiffs, have submitted to the Court that they do not seek to deal with questions of enforcement at this stage because it is not a simple exercise: it may involve complex questions of contribution; and there may not be any real commercial benefit in the plaintiff seeking enforcement, given some information the plaintiffs have received about the fourth defendant's claimed net assets. It is for that reason that the plaintiffs offered the undertaking to Ms Belle already indicated. Secondly, enforcement would inevitably involve a further round of submissions based upon the material that has been tendered and possibly, as my principal judgment indicated, a further oral hearing: Heperu Pty Ltd v Belle [2011] NSWSC 1151 at [73].

1. Accordingly, the Court will now proceed to deal with the question of costs. All the material in relation to that has been tendered and the Court will give judgment in relation to it shortly.

(3) NAB and Westpac's Submissions

1. At the hearing on 21 March 2012 Ms Belle tendered a deed (a deed of settlement dated 25 September 2006, Exhibit 2) which raises issues of confidentiality involving the NAB and Westpac. On the face of the deed, Exhibit 2, the plaintiffs in these proceedings and the banks acknowledged that its terms were confidential. The Court therefore made directions to notify the NAB and Westpac as to what submissions they wished to make in the use of Exhibit 2 in the proceedings. Westpac responded on 23 April 2012 (on its own behalf and on behalf of St George Bank Limited, now a division of Westpac Banking Corporation) pointing out that Ms Belle was not authorised by the bank to tender the settlement deed in open Court and does not have permission to do so. On 2 May 2012 NAB made a similar submission.

1. As the Court is only going to proceed to deal with questions of costs, the issue of confidentiality can be adequately dealt with in all parties' interests, subject to further order. The terms of the deed are not relevant to the Court's determination of issues of costs, only to issues of enforcement. The Court will order that Exhibit 2 be kept confidential and not be published except upon giving 14 days notice to the NAB and to Westpac. I will further direct that a copy of these reasons be provided to the legal representatives of NAB and Westpac who have provided submissions to the Court. As a result the confidentiality of all parties to Exhibit 2 will be preserved. The extent of any further publication of Exhibit 2 may perhaps only arise if the plaintiffs later pursue questions of enforcement against Ms Belle.

Conclusions and Orders

1. Accordingly the Court makes the following further orders and directions in these proceedings:-

1. Judgment for the Plaintiffs against the Fourth Defendant in the amount of $89,970.01 (the "Judgment Sum").

2. The Fourth Defendant pay interest on the Judgment Sum pursuant to Section 100 of the Civil Procedure Act (NSW) 2005 from 15 December 2003 to 15 September 2011 in the amount of $59,788.90.

3. Stay Orders 1 and 2 pending the Court's determination of the remaining issues in the proceedings.

4. Order that Exhibit 2 be kept confidential and not be published except upon the giving of 14 days notice to the NAB and to Westpac.

5. I direct that a copy of these reasons be provided to the legal representatives of NAB and Westpac who have provided submissions to the Court.

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I certify that this and the preceding pages are a true copy of the reasons for judgment of Justice Slattery delivered on 20 August 2012.

Associate..................................

Decision last updated: 09 August 2013