Supreme Court
New South Wales
Medium Neutral Citation: Heperu Pty Ltd & Ors v Patricia Belle [2011] NSWSC 1151 Hearing dates: 21 June 2011 Decision date: 16 September 2011 Jurisdiction: Equity Division Before: Slattery J Decision: The defendant should restore to the plaintiff the sum of $86,970.01 plus interest to be assessed.
Catchwords: TRACING - personal liability for value remaining of misappropriated funds that can be traced into real property - tracing of misappropriated cheques into mortgage repayments made on real property - tracing through mixed fund - assessment of sum to be restored. Legislation Cited: Civil Procedure Act 2005 (NSW), s 100 Cases Cited: Heperu Pty Limited v Belle (2009) 76 NSWLR 230
Heperu Pty Limited v Belle (No. 2) [2010] NSWCA 13
Heperu Pty Limited & Ors v Morgan Brooks Pty Limited & Ors (No. 2) [2007] NSWSC 1438
Re Sutherland; French Caledonia Travel Service Pty Limited (in liquidation) [2003] NSWSC 1008; 59 NSWLR 361Category: Principal judgment Parties: Plaintiff- Heperu Pty Ltd
Second Plaintiff- Kirisi Holdings Pty Limited
Defendant- Patricia BelleRepresentation: Plaintiff- G. Burton; C.L. Cochrane
Fourth Defendant- litigant in person
Plaintiff-T. Bray, Thomas Henry Bray Lawyer
Fourth Defendant- litigant in person
File Number(s): 03/87360 Publication restriction: No.
Judgment
This is the Court's fourth judgment in these proceedings between Heperu Pty Limited ("Heperu") and Ms Patricia Belle. The findings in the Court's prior judgments have determined all issues between Heperu and Ms Belle other than (1) assessing the value of any traceable benefit that she has received from misappropriated funds and (2) dealing with consequential issues including costs. This judgment determines the first of those questions and gives directions for the determination of the second.
The Court's prior findings, set out in the judgments of Palmer J ( Heperu Pty Limited & Ors v Morgan Brooks Pty Limited & Ors (No. 2) [2007] NSWSC 1438 and the two judgments of the Court of Appeal in August 2009 ( Heperu Pty Limited v Belle (2009) 76 NSWLR 230; [2009] NSWCA 252) and in February 2010 ( Heperu Pty Limited v Belle (No. 2) [2010] NSWCA 13) provide the basis for an uncontentious narrative of fact for the Court's assessment of the value of any traceable benefit in Ms Belle's hands. Those judgments should be read with this judgment.
Mr Cincotta's 2001 - 2003 Frauds and their Consequences
Ms Belle's former husband, Mr Dominic Cincotta, was a fraudster. His frauds occasioned substantial loss to Heperu, and embroiled Ms Belle in this litigation. Heperu originally sought recovery of the misappropriated funds from Ms Belle and other parties, but now only from Ms Belle. The circumstances of his frauds provide important background to the issues on the current assessment.
Ms Belle and Mr Dominic Cincotta were married in 1981. They separated in about May 2004. Since August 2004 Ms Belle has lived in the Republic of Fiji.
Between August 2001 and November 2003 Dr Barry Landa, the controller of Heperu and a number of other companies,…
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- AGLC
- Heperu Pty Ltd v Belle [2011] NSWSC 1151
- Case
- [2011] NSWSC 1151
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the plaintiff could trace the remaining value of the misappropriated funds into the real property and, if so, what sum should be restored to the plaintiff. The court needed to determine whether the funds used to make mortgage repayments constituted a mixed fund and, if so, how the sum to be restored should be assessed. The court also had to consider the effect of the misappropriated cheques being paid into a bank account and subsequently used to make mortgage repayments.
The court held that the plaintiff could trace the remaining value of the misappropriated funds into the real property. It found that the funds used to make mortgage repayments constituted a mixed fund, but the plaintiff was still entitled to trace the remaining value of the misappropriated funds. The court assessed the sum to be restored by determining the difference between the amount of the mortgage repayments made with the misappropriated funds and the amount that would have been paid if the misappropriated funds had not been used. The court ordered the defendant to pay the plaintiff the sum calculated by this method, together with interest.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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