Mitchell Contractors (Vic) Pty Ltd (ACN 004 646 397) v Power

[2021] VCC 549

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-20-00408

MITCHELL CONTRACTORS (VIC) PTY LTD (in liquidation) (ACN 004 646 397)	Plaintiff
v
KYLIE-ANN LOUISE POWER	Defendant

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	14 April 2021
DATE OF JUDGMENT:	14 April 2021
CASE MAY BE CITED AS:	Mitchell Contractors (Vic) Pty Ltd (ACN 004 646 397) v Power
MEDIUM NEUTRAL CITATION:	[2021] VCC 549

REASONS FOR JUDGMENT
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Subject:DEBT

Catchwords:              Monies stolen by defendant/employee from plaintiff/employer

Judgment:                  Judgment for the plaintiff against the defendant in the sum of $457,263.50 inclusive of interest.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms S Hasip (Solicitor)	K&L Gates
For the Defendant	No Appearance

HIS HONOUR:

1By Writ issued on 3 February 2020, the plaintiff company claimed against the defendant monies wrongfully transferred by the defendant from the plaintiff’s financial accounts during the course of her employment with the plaintiff between January 2010 and December 2011.  The amount claimed by the plaintiff was $408,370.88.

2The plaintiff tendered the following documents at the hearing of the matter:

(a)   An affidavit of service by Jade Watson affirmed on 13 April 2021 and the exhibit thereto – Exhibit A.

(b)   An affidavit of service by Peter Petrovic affirmed on 12 April 2021 and the exhibit thereto – Exhibit B.

(c)   An affidavit by Gregory Stuart Andrews affirmed 13 April 2021 and the exhibit thereto – Exhibit C.

3I am satisfied on the basis of the matters set out in the affidavit of Mr Andrews and the exhibit thereto, that the defendant is indebted to the plaintiff in the sum of $408,370.88.  The various amounts transferred by the defendant and making up that sum are set out in Schedule 1 annexed to the plaintiff’s Statement of Claim.

4I am satisfied that between 4 January 2010 and 14 December 2011, the defendant, in the course of her employment with the plaintiff, transferred from the plaintiff’s bank accounts amounts totalling $408,370.88 into bank accounts in her name.

5I am further satisfied that an amount of $141,110.12, being part of the sum referred to in the previous paragraph, continues to be held by the Commonwealth Bank of Australia in an account in the defendant’s name with an account number ending 8504.  I am satisfied that these funds are part of the funds of the plaintiff which were wrongly transferred by the defendant into her account.

6I am satisfied that the plaintiff is, and has been at all material times, the beneficial owner of the said sum of $141,110.12, and I shall make a declaration to that effect.

7I am satisfied that at all material times the plaintiff was and is the beneficial owner of the said sums transferred from the plaintiff to the defendant totalling $408,370.88.

8I am satisfied that the defendant holds the retained funds of $141,110.12 on trust or constructive trust for the plaintiff and is liable to account to the plaintiff for that sum.

9Accordingly, I shall order that the Commonwealth Bank of Australia deliver up or transfer the said retained funds to the plaintiff forthwith.

10I note that I made Orders on 24 March 2021 that there be interlocutory judgment for the plaintiff against the defendant for damages to be assessed by the Court.  I ordered that the matter be listed for assessment of damages on today’s date, 14 April 2021. 

11I further ordered that a copy of the Order made on 24 March 2021 be served on the defendant by registered mail addressed to her at:

(a)   Dame Phyllis Frost Centre, 101-201 Riding Boundary Road, Ravenhall, Victoria, 3023; and

(b)   57 Swan Reach Road, Swan Reach, Victoria, 3903.

12I am satisfied, on the basis of the affidavit affirmed by Jade Watson on 13 April 2021 and on the basis of the affidavit sworn by Peter Petrovich on 12 April 2021, that the Order made by me on 24 March 2021 was served upon the defendant on 6 April and 8 April 2021 respectively in accordance with the terms of that Order.

13The plaintiff seeks interest on the sum of $408,370.88 from the date of the issue of the Writ in this proceeding, 3 February 2020, until the date of this order, 14 April 2021, which I calculate to be 437 days, at the rate fixed pursuant to s2 of the Penalty Interest Rates Act 1983 (10 per cent per annum), an amount totalling $48,892.62.

14I shall make the following Orders:

(i)    There be judgment for the plaintiff against the defendant in the sum of $408,370.88, being the amount of assessed damages, together with interest calculated on that sum from 3 February 2020 to the date of this judgment, being $48,892.62, a total of $457,263.50;

(ii)   I declare the plaintiff is and was at all material times the beneficial owner of the sum of $141,110.12 (“the retained funds”) held in the defendant’s bank account (with an account number ending 8504) held with the Commonwealth Bank of Australia;

(iii)   I declare that the plaintiff is and was at all material times the beneficial owner of the sums transferred from the plaintiff to the defendant totalling $408,370.88 (“the sum transferred”);

(iv)     I declare that the defendant holds the retained funds on trust or constructive trust for the plaintiff and is liable to account to the plaintiff for such funds;

(v)   I order that the Commonwealth Bank of Australia deliver up or transfer the retained funds to the plaintiff forthwith;

(vi)     I order that the defendant pay the plaintiff’s costs of the proceeding (including any reserved costs) to be assessed by the Costs Court on a standard basis in default of agreement between the parties’

(vii)    There be liberty to apply;

(viii)   By 4.00pm on 19 April 2021, the plaintiff is to serve a copy of these Orders upon the defendant by registered mail addressed to the defendant at:

(a)57 Swan Reach Road, Swan Reach, Victoria 3903; and

(b) 404 Great Alpine Road, Bruthen, Victoria 3885.

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