Toksoz v Westpac Banking Corporation

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Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Toksoz v Westpac Banking Corporation [2012] NSWCA 199
Hearing dates:19 June 2012
Decision date: 03 July 2012
Before: Allsop ACJ at [1]
Hoeben JA at [32]
Sackville AJA at [33]
Decision:

1.Appeal allowed in part.

2.Orders 1(1) and 1(3) made by the Supreme Court on 25 February 2011 and entered 1 March 2011 be varied by replacing the amounts of "$868,655.33" and "$742,836" respectively with "$801,664" and "$666,830.56" respectively.

3.Appeal otherwise dismissed.

4.The appellant pay the respondent's costs of the appeal.

5.Subject to rescission or variation upon receipt of any submissions by the appellant to the Court (such submissions and any affidavit in support to be filed and served within seven days) and the subsequent reconsideration of the question by the Court, direct the Registrar of the Court of Appeal to forward this judgment and the judgment of the primary judge to the relevant Minister of the Commonwealth of Australia administering social service benefits for single parents, to the Australian Taxation Office and to the Crime Commissions of New South Wales and the Commonwealth.

6.Grant leave to the parties to apply within 14 days for any special costs order or any order regarding the freezing of any property of the appellant.

7.Subject to rescission or variation upon receipt of submissions by the appellant to the Court (to be filed and served within seven days) and the subsequent reconsideration of the question by the Court, publication of any matter relating to these proceedings to the extent that it might tend to identify persons who are or were customers of the respondent bank by name or unique identifiers in relation to such persons be prohibited.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

FRAUD - tracing of proceeds - sufficiency of proof - husband of appellant defrauded bank of over $1m - large unexplained sums in appellant's bank accounts - appellant's only income a single parent pension - no evidence of legitimate or honest source of moneys - inference as to source of funds

CONSTRUCTIVE TRUSTS - knowing receipt - evidence that female voice was necessary to one of the frauds - matching telephone records - evidence of appellant's address used in frauds - inference of actual knowledge
Cases Cited: Barnes v Addy (1874) LR 9 Ch App 244
Black v S Freedman & Co [1910] HCA 58; 12 CLR 105
El Ajou v Dollar Land Holdings Plc [1993] 3 All ER 717
Foskett v McKeown [2001] 1 AC 102
Harford v Lloyd (1855) 20 Beav 310; 52 ER 622
Heperu Pty Ltd v Belle [2009] NSWCA 252
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Details
Case
[2012] NSWCA 199
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between Ms Toksoz and Westpac Banking Corporation, heard in the Court of Appeal of New South Wales. Ms Toksoz's husband had defrauded the bank of over $1 million, and the bank sought to recover these proceeds from Ms Toksoz, alleging she had received them. The primary judge had found in favour of the bank, ordering Ms Toksoz to pay a significant sum.

The central legal issues before the Court of Appeal were whether Ms Toksoz had received the proceeds of her husband's fraud and, if so, whether she had the requisite knowledge to be liable for knowing receipt. This involved determining whether the unexplained large sums deposited into her bank accounts, given her sole income was a single parent pension, could be inferred to be the proceeds of the fraud, and whether evidence, including matching telephone records and the use of her address in fraudulent activities, established her actual knowledge of the dishonest conduct.

The Court of Appeal reasoned that while the primary judge had correctly identified the legal principles of tracing and knowing receipt, there were errors in the calculation of the amounts for which Ms Toksoz was liable. The court applied the principles of constructive trusts and knowing receipt, inferring from the circumstances, including the lack of any legitimate source for the substantial funds in her accounts and her involvement in the fraudulent scheme, that she had received the proceeds of the fraud with the necessary knowledge. The court allowed the appeal in part, varying the amounts ordered to be paid by Ms Toksoz, but otherwise dismissed the appeal and ordered her to pay the respondent's costs. The court also made directions regarding the forwarding of the judgment to relevant government bodies and the prohibition of publication that might identify bank customers.

Orders

Orders of the court

1.Appeal allowed in part.

2.Orders 1(1) and 1(3) made by the Supreme Court on 25 February 2011 and entered 1 March 2011 be varied by replacing the amounts of "$868,655.33" and "$742,836" respectively with "$801,664" and "$666,830.56" respectively.

3.Appeal otherwise dismissed.

4.The appellant pay the respondent's costs of the appeal.

5.Subject to rescission or variation upon receipt of any submissions by the appellant to the Court (such submissions and any affidavit in support to be filed and served within seven days) and the subsequent reconsideration of the question by the Court, direct the Registrar of the Court of Appeal to forward this judgment and the judgment of the primary judge to the relevant Minister of the Commonwealth of Australia administering social service benefits for single parents, to the Australian Taxation Office and to the Crime Commissions of New South Wales and the Commonwealth.

6.Grant leave to the parties to apply within 14 days for any special costs order or any order regarding the freezing of any property of the appellant.

7.Subject to rescission or variation upon receipt of submissions by the appellant to the Court (to be filed and served within seven days) and the subsequent reconsideration of the question by the Court, publication of any matter relating to these proceedings to the extent that it might tend to identify persons who are or were customers of the respondent bank by name or unique identifiers in relation to such persons be prohibited.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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