Telstra Ltd v Sulaiman

[2024] NSWSC 440

Supreme Court

New South Wales

Medium Neutral Citation:

Telstra Ltd v Sulaiman [2024] NSWSC 440

Hearing dates:

19 April 2024

Decision date:

19 April 2024

Jurisdiction:

Equity - Commercial List

Before:

Stevenson J

Decision:

Plaintiff’s Notice of Motion dismissed; costs of the plaintiff’s Notice of Motion be the defendants’ costs in the cause

Catchwords:

CIVIL PROCEDURE – interim preservation – freezing orders – whether orders should be varied to decrease amounts allowed for living expenses

Cases Cited:

Barnes v Addy (1874) LR 9 Ch App 244

Black v S Freedman & Co (1910) 12 CLR 105; [1910] HCA 58

Heperu Pty Ltd v Belle [2011] NSWSC 1151

Category:

Procedural rulings

Parties:

Telstra Limited (Plaintiff)
Qarttullah Sulaiman (First Defendant)
Azatullah Sulaiman (Second Defendant)
Khalida Sulaiman (Third Defendant)

Representation:

Counsel:
C Tam (Plaintiff)
C Parkin (First Defendant)
H Donaldson (Second and Third Defendants)

Solicitors:
King & Wood Mallesons (Plaintiff)
Cambridge Law (First Defendant)
Republic Lawyers (Second and Third Defendants)

File Number(s):

2023/448786

EX TEMPORE JUDGMENT (REVISED)

1. These proceedings were commenced on 11 December 2023.

2. The allegations that the plaintiff makes are summarised in the Commercial List Statement that it filed later on 23 February 2024 as follows:

“The first defendant was the plaintiff’s employee. During his employment, he misappropriated the plaintiff’s property (phones and other electrical products). He sold that property to third parties, generating over $3 million from those sales. The employee provided some of his gains to his brother, the second defendant, and mother, the third defendant.

After an internal investigation by the plaintiff, the first defendant made certain admissions, and his employment was terminated. The plaintiff contends that the employee holds the sale proceeds of the stolen property on trust (Black v Freedman). ^[1]

The second and third defendants are Barnes v Addy ^[2] knowing recipients because they received the trust property with actual knowledge; alternatively, they are volunteers (Heperu v Belle). ^[3] The plaintiff seeks equitable compensation and associated proprietary relief via tracing the tainted monies into the defendants’ bank accounts and into other property and for monies had and received.”

1. Black v S Freedman & Co (1910) 12 CLR 105; [1910] HCA 58.

2. Barnes v Addy (1874) LR 9 Ch App 244.

3. Heperu Pty Ltd v Belle [2011] NSWSC 1151.

3. On 11 December 2023 McGrath J, as duty judge, made freezing orders against each defendant. That freezing order was in the usual form and contained a statement that the order “does not prohibit you from paying up to $2,000 a week on your ordinary living expenses”. On 15 December 2023 Ball J varied that order so that the figure was $1,000 per week, rather than $2,000 per week.

4. By Notice of Motion filed on 20 March 2024, the plaintiff seeks to vary the freezing order so that the figure of $1,000 is replaced with a figure of $500.

5. The plaintiff’s evidence in support of that application is from its solicitor. It comprises largely indirect evidence as to the defendants’ alleged income, evidence that the second defendant owns two properties, and the plaintiff’s solicitor’s observations based on his “review” of affidavits that the defendants have filed as to the payment of rent.

6. The defendants have also made an affidavit setting out various assertions concerning their living expenses.

7. The plaintiff’s submissions in support of its motion focus on the alleged fact that the defendants have a weekly income together of some $3,700 comprising primarily of Centrelink payments but also rent evidently received by the second defendant from one of his properties.

8. The evidence also shows that each of the defendants and the first and second defendants’ wives and children are living together in a property owned by the second defendant.

9. As I say, the plaintiff’s submissions focus on the level of income of the defendants. However, the question on the application is how much of that income each defendant reasonably needs to spend on his or her own living expenses; as opposed to the living expenses of others, particularly the wives of the first and second defendants, the three children of the first defendant, and the four children of the second defendant.

10. It is for the plaintiff to show that each defendant reasonably only requires $500 per week to cover their own living expenses.

11. The plaintiff has not shown that this figure is $500, as opposed to any other figure.

12. For those reasons, I make the following orders:

1. The plaintiff’s Notice of Motion filed 21 March 2024 is dismissed;

2. Order that costs of the plaintiff’s Notice of Motion filed 21 March 2024 be the defendants’ costs in the cause.

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Endnotes

Decision last updated: 23 April 2024