Sleiman v Afeich

[2005] NSWSC 1063

CITATION:	Sleiman v Afeich [2005] NSWSC 1063
HEARING DATE(S):	17 October 2005
JUDGMENT DATE :	17 October 2005
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Order made that person (not a party) pay into Court $200,000 to abide the order of the Court.

CATCHWORDS:	EQUITY [340] - Equitable remedies - Injunctions - Interlocutory injunctions - Injunctions to preserve status quo and property pending determination of rights - Mareva injunctions - Other matters - Order to pay money into Court.
CASES CITED:	Millennium Federation Pty Ltd v Bigjig Pty Ltd [2000] 1 Qd R 275 Sleiman v Afeich (No 2) [2005] NSWSC 969 Sleiman v Afeich [2005] NSWSC 900 Sleiman v Afeich [2005] NSWSC 992 Biscoe, Mareva and Anton Piller Orders (2005) [3.15]
PARTIES:	Gerar Sleiman (P & XD) Paulette Afeich (1D) Peter Solomon (2D & XC)
FILE NUMBER(S):	SC 1797/04
COUNSEL:	P M Sibtain (P & XD) No appearance (1 & 2D & XC)
SOLICITORS:	B J Macree & Co (P & XD) No appearance (1 & 2D & XC)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

MONDAY, 17 OCTOBER 2005

1797/04 GERAR SLEIMAN v PAULETTE AFEICH & ANOR

JUDGMENT

1 HIS HONOUR: In this matter Mareva relief has been granted against the two defendants and one Bechara Tawk.

2 The matter has already been dealt with by two judgments of my brother Brereton: Sleiman v Afeich [2005] NSWSC 900 and Sleiman v Afeich (No 2) [2005] NSWSC 969. The facts relevant to the matter before me are dealt with particularly in the second of those judgments, which I shall refer to as Judgment No 2. Essentially I shall not repeat the facts found by his Honour in Judgment No 2 and I rely on the facts so found in support of the application made before me today. That application is for an order that Bechara Tawk pay $200,000 into Court to abide the further order of the Court.

3 After the delivery of Judgment No 2, it was found that Bechara Tawk had removed the sum of $297,000 from his bank account into which it had been paid. For a time, nothing was known of the whereabouts of that large sum of money and, despite what follows, its whereabouts remain uncertain.

4 Brereton J gave leave for the issue and service of subpoenas on the two defendants and on Bechara Tawk to attend and give evidence concerning relevant matters, including the whereabouts of the money, and to produce documents which might cast light upon its whereabouts. He made special directions as to the service of the subpoenas and the subpoenas were served in accordance with those directions, but none of the three addressees attended in answer to the subpoenas.

5 On 28 September 2005 I issued warrants under s 97 of the Civil Procedure Act 2005 for the arrest of the two defendants and Bechara Tawk to answer those subpoenas. I delivered a short judgment in respect of the issue of those warrants: Sleiman v Afeich [2005] NSWSC 992. The defendants and Mr Tawk were promptly arrested by the Sheriff on those warrants and brought before the Court on 29 September 2005 to answer the subpoenas. The three of them were examined before me on 29 September 2005 whilst under arrest. They were then discharged from custody under the warrants. Mr Tawk did attend again before the Court on 30 September 2005, pursuant to an undertaking he had given before his release, and produced a document and answered further questions on that day.

6 The story as then appeared was as follows. Mr Tawk’s visa to be in Australia has expired. He has been permitted to remain for a time in order to enable his son to complete his HSC examination. His wife, Norma Taouk, has already returned to Lebanon with their daughters. It is Mr Tawk’s evidence that she took with her to Lebanon the $297,000 which he had withdrawn from the bank in cash in Australian currency. According to him, she has used some of it to pay debts and some on living expenses, but retains about $234,000.

7 Evidence was given by both defendants and by Bechara Tawk as to the transaction in respect of which it is said that the defendants paid him the $297,000. The second defendant swore that he raised the money on mortgage with the intention of paying the judgment against him and costs to the plaintiff, but suddenly changed his mind and decided to buy a residence in Lebanon. The residence was sold to him by Bechara Tawk. The residence has not yet been transferred and there is no documentation of the contract, or otherwise in respect of the transaction, which it is said will be documented in Lebanon at the time the transfer of the property takes place.

8 Any verisimilitude that this story may have had was destroyed by the fact that both the defendants swore that the residence that they bought was an apartment or unit in a block of units. It was said by the first defendant to be in a building with a number of storeys, probably four storeys. But Bechara Tawk swore that the residence which he had sold to the defendants was a single storey detached house of about 300 square metres.

9 There were many other conflicts and improbabilities in the evidence of all three witnesses. On the basis of those conflicts and improbabilities, as well as of the demeanour of the witnesses, I formed the view that their evidence had very little credibility and that I should not accept any of the evidence that they gave before me unless it was corroborated by the evidence of a credible witness or by some reliable form of documentation.

10 In the light of those findings, the situation is as follows. It is clearly established that the $297,000 was paid to Bechara Tawk, put in a bank account of his and withdrawn from it. It does appear that his wife and daughters have returned to Lebanon and that he is required by the immigration authorities to leave Australia by 18 November 2005.

11 I do not think it can be found on the evidence where the $297,000 is. The story about the transaction relating to a property in Lebanon has no credibility. It is quite possible that the money has left Australia and is in Lebanon. It is equally quite possible that it remains in Australia and that the story about its repatriation to Lebanon is a blind to distract attention. However, as the money was last, on credible evidence, in Bechara Tawk’s hands and as he has chosen to swear that some $234,000 of it is still within his control (since he has said that his wife will deal with it in accordance with his direction), it seems to me appropriate that I should order that he pay the $200,000 into Court. The time I propose to allow is short, particularly if the money has to be repatriated from Lebanon, but I am reserving him leave to apply to set aside or vary the orders on short notice.

12 There is authority for the making of an order for payment into Court as ancillary to Mareva relief: Millennium Federation Pty Ltd v Bigjig Pty Ltd [2000] 1 Qd R 275; and see, generally Biscoe, Mareva and Anton Piller Orders (2005) [3.15].

13 The only service of the motion has been by leaving it at Bechara Tawk’s residence, where the identity of the person who answered the door was not disclosed and that person refused to take the documents. Bechara Tawk has been called outside the Court, but has not appeared. However, whether the application be regarded as an application on notice or an application made ex parte, I propose to grant it. There is a strong case that the money is being dealt with fraudulently and that it is likely to be permanently unavailable to satisfy the plaintiff's judgment unless the order sought is made.

14 There is an existing form of Mareva relief in force against Bechara Tawk, but that is now also varied, bearing in mind the possibility that the money has already left the country, although Bechara Tawk himself has not yet done so.

15 There will be orders in accordance with the form of judgment/order initialled by me and placed with the papers.

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