Rabo Equipment Finance Pty Ltd v Boutayeh
[2001] NSWSC 1179
•10 December 2001
CITATION: Rabo Equipment Finance Pty Ltd v Boutayeh [2001] NSWSC 1179 CURRENT JURISDICTION: Equity FILE NUMBER(S): SC 2598/01 HEARING DATE(S): 9 and 10 December 2001 JUDGMENT DATE:
10 December 2001PARTIES :
Rabo Equipment Finance Limited (P)
Pierre Boutors Boutayeh (D1)
JMJ Refunds Pty Limited (D2)
Petro Mariam Holdings Pty Limited (D3)
Westpac Banking Corporation (D4)
Josef Shadi Alexander (D5)
Australia and New Zealand Banking Group Limited (D6)
Imad Tanious Boutayeh & Kilda Boutayeh (D7)
St George Bank Limited (D8)JUDGMENT OF: Hamilton J
COUNSEL : J E Marshall (P)
No appearances (D1 - 8)SOLICITORS: Blake Dawson Waldron (P)
No appearance (D1 - 3)
Corrs Chambers Westgarth (D4)
John Spence & Associates (D5)
No appearance (D6)
Chahoud & Associates (D7)
No appearance (D8)CATCHWORDS: PROCEDURE [91] - Supreme Court procedure - Practice under Supreme Court Rules - Service - Where personal service not required - Where defendants in default of appearance - Service of statement of claim effected by filing - Necessity of service of notice of motion dispensed with. LEGISLATION CITED: Supreme Court Rules 1970 Part 9 r 12, Part 13 r 2, Part 18 r 3 & Part 19 r 2 DECISION: Default or summary judgment entered against four defendants.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
MONDAY, 10 DECEMBER 2001
2598/01 RABO EQUIPMENT FINANCE LTD v BOUTAYEH & ORS
JUDGMENT
1 HIS HONOUR: In this case the plaintiff alleges that the sum of $1,364,000 was fraudulently obtained from it by the first defendant on about 30 April 2001. It concedes that some $23,367.40 was returned to it at the same time but that the balance of the moneys have not been returned. The mechanism by which the moneys were obtained is that false representations were made by the first defendant to the plaintiff that the moneys were to be placed in an account belonging to All Purpose Machinery for the purpose of paying for machinery. The plaintiff's case is that there was no machinery, that All Purpose Machinery did not exist and that the account into which the $1,364,000 was placed was not an account owned by All Purpose Machinery but an account of which the proprietor was the first defendant. If those facts be correct, then upon those moneys being received into an account owned by the first defendant as a result of the before mentioned fraudulent conduct, then the moneys in the account were held by the first defendant on trust for the plaintiff. Certain of the moneys remain in the original account and other moneys have been extracted from it. Portions of the extracted moneys are in other accounts which can now be identified. The second and third defendants were so involved in the fraud as to be also liable to the plaintiff for the moneys.
2 The proceedings were originally commenced by summons and personal service of the summons upon the first, second and third defendants has been proved. The plaintiff now seeks final orders against the first, second and third defendants either by way of judgment upon admissions in the statement of claim which has been filed (see Part 18 r 3 of the Supreme Court Rules 1970 ("the SCR")) or by way of summary judgment under Part 13 r 2. The facts set out in [1] above are alleged in the statement of claim, which was filed on 14 June 2001 and verified by the affidavit of the general counsel and company secretary of the plaintiff on 13 June 2001. Extensive affidavit evidence has also been read before me which established those facts. Part 13 r 2(1)(b), which requires the evidence of a responsible person that in the belief of that person the defendant has no defence to the claim, has been complied with.
3 Neither has the statement of claim been served upon the first, second and third defendants, nor has the notice of motion by which the present relief is sought been served upon the first defendant. However, in both cases the necessity for that service is removed by the provisions of the SCR. In the case of the statement of claim the necessity is dispensed with by Part 9 r 12, which provides that where the service of any document on any person is required, but personal service is not required, and that person is in default of appearance, the filing of the document shall have effect as service of the document on that person. The necessity of service of the notice of motion is specifically dispensed with by Part 19 r 2(3), which provides that a respondent who is a party to the proceedings and is in default of appearance need not be served unless an order is sought requiring that respondent do or refrain from doing some act. What is sought here is monetary relief and the summons required the defendants enter an appearance within 14 days which they did not do. By the time of filing of both the statement of claim and the notice of motion, the first, second and third defendants were wholly in default of appearance, so that the need for service of the statement of claim or the motion upon them was dispensed with. So far as the second and third defendants are concerned, the notice of motion was in fact served on them at their common registered office. The actual attempt at service on the first defendant did not constitute valid service, but that is of no moment.
4 In those circumstances it seems to me that the non traversing of the allegations in the statement of claim creates admissions which would found the judgment which I propose to enter. Equally, however, there is evidence to found that judgment upon the basis of summary relief given under Part 13 r 2 of the SCR. It is conceded that of the $1,364,000 paid away some $23,000 was received back at the time but none of the balance has been received. In those circumstances there is a proper basis for an order for interest at the rate prescribed by the SCR upon the balance outstanding from 30 April 2001 to the day of judgment and I propose to include the appropriate amount in the judgment.
5 So far as concerns the orders against the fourth defendant for the repayment of moneys in various accounts, there is evidence either that that was the original account into which the plaintiff's moneys were paid or was the account into which money originally paid by the plaintiff was transferred from the original account. The fourth defendant, Westpac Banking Corporation, is aware of those payments and does not oppose the making of these orders. No orders are sought against the fifth to eighth defendants.
6 In those circumstances it is appropriate I make the orders in the short minutes presented to me. There will be orders in accordance with the short minutes initialled by me and placed with the papers.
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