Westpac Banking Corporation v Sentox Pty Ltd

[2022] NSWSC 150

Supreme Court

New South Wales

Medium Neutral Citation:

Westpac Banking Corporation v Sentox Pty Ltd [2022] NSWSC 150

Hearing dates:

16 February 2022

Decision date:

23 February 2022

Jurisdiction:

Equity - Commercial List

Before:

Ball J

Decision:

(1)   The notice of motion filed on 1 February 2022 be dismissed with costs.

(2)   Upon the plaintiff giving the undertakings contained in Schedule A of Annexure B to the notice of motion filed 6 December 2021, make orders in terms of the asset disclosure orders set out in Annexure A to this judgment and asset preservation orders set out in Annexure B to this judgment.

(3)   Order that the eighth defendant pay the plaintiff’s costs of the notice of motion filed on 6 December 2021.

Catchwords:

CIVIL PROCEDURE — Summary disposal — Whether proceedings against the eighth defendant should be dismissed — Whether the claim identifies any representation and if so whether it has been sufficiently particularised

CIVIL PROCEDURE — Interim preservation — Freezing orders — Whether freezing order should be issued against the eighth defendant where there have been allegations of deceit made against the eighth defendant

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Brambles Australia Ltd t/as CHEP Australia v Tatale Pty Ltd [2006] NSWSC 204

Hastie Group Ltd (in liq) v Bourne [2017] NSWSC 709

Hurst v Prasad [2021] FCA 1562

Magill v Magill (2006) 226 CLR 551

Patterson v BTR Engineering (Aust) Ltd (1989) NSWLR 319

Reid v Hartcher [2017] NSWSC 1274

Category:

Procedural rulings

Parties:

Westpac Banking Corporation (Plaintiff)
Sentox Pty Ltd (Receivers and Managers Appointed) (First Defendant)
Kathie Musumeci (Second Defendant)
Andrew Musumeci (Third Defendant)
Cheeky Farms Pty Ltd (Fourth Defendant)
ACE Agriculture Pty Ltd (Fifth Defendant)
Musumeci Property Investments Pty Ltd (Sixth Defendant)
CAO Holdings Pty Ltd (Seventh Defendant)
Sahar El-Ahmad aka Sahar Abbas (Eighth Defendant)

Representation:

Counsel:
T Mehigan SC with J Foley (Plaintiff)
P Newton SC with M Hazan (Eighth Defendant)

Solicitors:
Dentons Australia (Plaintiff)
David Legal (Second to Fifth Defendants)
Spectrum Legal Group (Sixth and Seventh Defendants)
JD Law Group (Eighth Defendant)

File Number(s):

2021/62247

Publication restriction:

None

Judgment

Introduction

1. Before the Court are two notices of motion. The first filed on 6 December 2021 by the plaintiff, Westpac Banking Corporation (Westpac), seeks asset disclosure and asset preservation orders against the eighth defendant, Ms Sahar El-Ahmad (also known as Ms Sahar Abbas) (Ms Abbas). The second filed on 1 February 2022 by Ms Abbas seeks summary dismissal of the proceedings under Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 13.4 or an order under UCPR r 14.28 that the Amended Commercial List Statement (ACLS) be struck out so far as it concerns Ms Abbas.

Background

2. The proceedings arise from an invoice discounting facility originally granted by Westpac to the first defendant, Sentox Pty Ltd (Receivers and Managers Appointed) (Sentox), in March 2011. Sentox is a fruit and vegetable wholesaler operating out of the Flemington Markets in Sydney. Under the terms of the facility, Westpac advanced funds in exchange for an equitable assignment of certain trade debts owing to Sentox at a discount on certain terms and conditions. The facility was initially for $4,000,000 but it was increased over time. The last increase, which was in August 2019, was from $12,500,000 to $15,000,000.

3. In the proceedings, Westpac claims that throughout the term of the facility Sentox provided financial information and documents in support of drawdowns under the facility which were false. It seeks to recover amounts owing under the facility from Sentox and from the second defendant, Mrs Kathie Musumeci, pursuant to a guarantee given by her. Mrs Musumeci was the sole director and shareholder of Sentox since 14 February 2014.

4. In addition, Westpac brings claims in deceit against the third defendant, Mr Andrew Musumeci, who was an employee of Sentox and responsible for managing the business carried on by it. Westpac also seeks to trace money advanced by it to a number of entities associated with Sentox.

5. By a Further Amended Summons and the ACLS, Westpac also brings a claim in deceit against Ms Abbas. Ms Abbas had been an employee of Sentox for over 10 years. She was responsible for debtor collections, supplier and customer relations and was described in a Westpac internal document as “QA Manager and PA to Andrew Musumeci”. She was also listed as an authorised representative of Sentox for the purpose of dealing with Westpac in relation to its facilities.

The summary dismissal motion

6. It is convenient to deal first with Ms Abbas’s motion.

7. The case against Ms Abbas is set out in paras C78 to C83 of the ACLS, which are in the following terms:

C78   From 2014, the eighth defendant provided or caused to be provided Financial Information and Documents to the plaintiff.

Particulars

The Financial Information and Documents were supplied or caused to be supplied by the eighth defendant to the plaintiff through a system maintained by the plaintiff known as Cashflow Connect and/or in the alternative, by email to the plaintiff.

Affidavit of Rick Bow affirmed 31 August 2021 at [371], [541], [621], [65], [85], [91], [95], [971], [100] and [107].

C79   The plaintiff relied upon the Financial Information and Documents in purchasing debts from Sentox under the IDF.

C80   The Financial Information and Documents provided to the plaintiff from at least 2016 were false in the following respects:

a.   The Financial Information and Documents materially overstated the quantum of debts owed to the first defendant.

b.    The Financial Information and Documents included purported debts of the first defendant which were not valid, binding or enforceable.

c.    The debtors referred to in the Financial Information and Documents were not liable to pay the purported invoices of the first defendant.

d.   The Financial Information and Documents materially overstated the turnover and profit of the first defendant.

C81   At the time the Financial Information and Documents referred to in the preceding paragraph were provided to the plaintiff, the eighth defendant knew that the Financial Information and Documents were false as set out in the preceding paragraph.

C82   As a consequence of the conduct of the eighth defendant, the plaintiff has suffered, or is likely to suffer, loss, being the amount paid under the IDF in reliance upon the Financial Information and Documents less any amounts recovered from the first defendant.

C83   In reliance upon the matters pleaded, the plaintiff seeks the relief set out in this statement of claim.

8. Westpac has provided particulars of C78, C80, C81 and C82 to which it will be necessary to return.

9. The essential elements of the tort of deceit were described by Gummow, Kirby and Crennan JJ in Magill v Magill (2006) 226 CLR 551 at [114] as follows (footnotes omitted):

The modern tort of deceit will be established where a plaintiff can show five elements: first, that the defendant made a false representation; secondly, that the defendant made the representation with the knowledge that it was false, or that the defendant was reckless or careless as to whether the representation was false or not; thirdly, that the defendant made the representation with the intention that it be relied upon by the plaintiff; fourthly, that the plaintiff acted in reliance on the false representation; and fifthly, that the plaintiff suffered damage which was caused by reliance on the false representation. Generally, the elements of the tort have been found to exist in cases which concern pecuniary loss flowing from a false inducement and the need to satisfy each element has always been strictly enforced, because fraud is such a serious allegation.

10. Taking these requirements as a starting point, Ms Abbas submits that the claim against her must fail for three reasons. First, the claim against her does not identify any representations. Second, even if it does identify representations, it does not do so with sufficient specificity. Third, the claim does not identify any representation made by Ms Abbas. According to her, it is plain that any representation was made by Sentox and that she was merely a conduit for those representations.

11. In my opinion, each of these submissions must be rejected.

12. Although the ACLS does not use the word ‘represented’ or one of its grammatical variants, it seems plain that what is alleged is that the “Financial Information and Documents” contained representations concerning the financial position of Sentox which were false to the knowledge of Ms Abbas. Paragraph C83 asserts that those facts alone are sufficient to establish Ms Abbas’s liability. In my opinion, that allegation is sufficiently clear from the ACLS.

13. Ms Abbas contends that the current pleading puts her in a difficult position because if she were to admit para C78 she would, in effect, be admitting the representations pleaded against her. There are, however, two answers to that point. First, in this case there is little difference between the information and documents relied on and the representations they are said to contain. The representations are made on the face of what was provided. Consequently, nothing turns on a separate pleading of the representations. Second, it is always open to Ms Abbas to qualify any admission in her response.

14. Relying on the decision of Adams J in Reid v Hartcher [2017] NSWSC 1274 at [42], Ms Abbas contends that Westpac should “clearly plead chronologically each false representation made by the defendant and how it is that each is said to be false, that each representation was made by the defendant with the knowledge that it was false (or the defendant was recklessly indifferent as to the falsity), and that the defendant made each false representation with the intention that the plaintiff would act on it”, which it has failed to do.

15. There are a number of points to be made about that contention. First, the present case concerns allegations in a Commercial List Statement, not in a pleading. Although many of the principles relating to pleadings are applicable to a List Statement by analogy, they are not necessarily the same: see Brambles Australia Ltd t/as CHEP Australia v Tatale Pty Ltd [2006] NSWSC 204 at [9] per Bergin J; Hastie Group Ltd (in liq) v Bourne [2017] NSWSC 709 at [58]–[59] per Ward CJ in Eq to insert authority. The question that must be asked in the present context is whether the ACLS in context fairly and adequately puts Ms Abbas on notice of the case that she must meet.

16. Second, what is alleged is that Ms Abbas over a period of eight or more years, participated in a systematic fraud which involved the creation of false records relating to amounts owing to Sentox. No doubt, as part of the proof of its case, Westpac will need to provide details of its claim. However, there is little utility in requiring that detail to be incorporated into the List Statement and a requirement to do so would undermine one of the purposes of the List Statement, which is to provide a succinct and clear statement of Sentox’s claim.

17. Third, Westpac has already filed evidence in chief and it has given particulars of its claim against Ms Abbas by reference to that evidence. So, for example, it gave the following particulars of para C78:

1.   In relation to paragraph C78:

(a)   Your client provided the following Financial Information and Documents through the Cashflow Connect System:

(i)   Debtor Invoice Information (as defined in paragraph 62(f) of the Bow Affidavit). We note that, as set out in paragraph 64 of the Bow Affidavit, the Bank does not retain Debtor Invoice Information submitted through Cashflow Connect.

(ii)   Payment requests, which requests were made by submitting Invoice Batches through Cashflow Connect (see paragraph 65 - 69 of the Bow Affidavit). The dates and amounts of each of the invoice batches uploaded through Cashflow Connect throughout the course of the IDF are set out in the Client Prepayment Availability Reports appearing [sic] page 89 to 2988 of Exhibit RB-1 (RB-1).

(iii)   Information necessary to complete the month-end reconciliation procedure through Cashflow Connect (see paragraphs 91 - 93 of the Bow Affidavit). This information included completing the declaration as to the accuracy of the debtors inputted through Cashflow Connect over the course of the month, as set out at paragraph 93 of the Bow Affidavit. Copies of month-end reconciliations and declarations submitted through Cashflow Connect by your client are at pages 1 to 88 of RB-1.

(b)   Your client provided the following Financial Information and Documents by email:

(i)   the documents set out in the table at paragraph 97 of the Bow Affidavit, which table includes page references to the Month-End Reconciliation Information provided by your client for various periods throughout the IDF; and

(ii)   the documents referred to in paragraph 100 of the Bow Affidavit, which paragraph includes page references to those documents.

18. As Mr Bow explains in his affidavit, the Cashflow Connect System was a web-based portal that permitted customers to lodge requests for Westpac to purchase debts under their facility. As part of the process of drawing down on the facility through Cashflow Connect, the customer is required to provide details of relevant invoices and give the following declaration:

All goods have been delivered or services fully performed.

Pursuant to the agreement between us we transfer to the debts arising under the invoices details of which are provided. We warrant that the original invoices have been given to the respective debtors and contain the same details as are provided. We confirm that each warranty we provide in the agreement is accurate in every respect.

19. In addition, each month Sentox was required to input into Cashflow Connect information concerning the various debts that it had requested the Bank to purchase and fund under the facility in order to enable Westpac to conduct a month-end reconciliation. As part of that process, Sentox provided a declaration in the following form:

We certify that the total debts as listed in the Debtors Reconciliation and, more specifically, in the Debtors Aged Analysis supplied, is true and correct and appears in the business’ books and records at the date of this submission.

[yes]

We confirm that:

We have notified you of any information available to us which could adversely affect the normal due payment of those debts

[yes]

In regard to credit/adjustment notes:

All credits that we are aware of being due have been issued. These have only been issued in the normal course of business. We have submitted all credits to you within seven (7) days.

The total amount of credits during any seven day period does not exceed 5% of the total value of the approved debts.

[yes]

[yes]

[yes]

[yes]

In regard to the statutory commitments (e.g. ATO [GST, PAYG, W, PAYG I, FBT etc], Super, Payroll tax):

All commitments have been paid by the due date.

The following reports have/will be provided:

For the reconciled month:

1.   Summary Debtors Aged Analysis Report

2.   Detailed Open-Item Aged Analysis Report (in the agreed electronic file format).

[yes]

For the previous month:

1.   Summary Creditors Aged Analysis Report

2.   Year-to-date Profit & Loss Statement

3.   Balance Sheet

[yes]

Comment:

Name:      Sahar Elahmad [Ms Abbas]

Position:   Office manager

User:      ###

20. It is apparent from the particulars supplied by Westpac that Westpac has identified each of the payment requests and month-end reconciliation statements it relies on. Similarly, para 1(b) of the particulars identifies each email it relies on. Paragraph 3 of the particulars sets out why it is alleged that that information was false.

21. Ms Abbas appears to accept that the information supplied by Sentox through the Cashflow Connect system was supplied by her. Her case, however, is that she supplied the information as a conduit for Sentox and therefore made no representations herself. In part, this point appears to be a point about the pleading. The point appears to be that the ACLS does not clearly distinguish between what representations were allegedly made by Sentox and what representations were made by her. In particular, there is no specific pleading that by certain acts Ms Abbas personally made certain representations. More significantly, however, the point appears to be one of substance. What is alleged is that the claim against Ms Abbas is bound to fail because what she did she did as a mere conduit.

22. So far as the point is one about the pleading, in my opinion, it is sufficiently clear that what is alleged is that, by engaging in the conduct it is alleged she engaged in (that is, personally completing the drawdown requests particularised and providing the other information she did through Cashflow Connect and emails), Ms Abbas became responsible for the representations contained in the documents and the information she supplied and she is liable in the tort of deceit because she knew that that information was false. It is true that it is not specifically pleaded that Ms Abbas intended Westpac to rely on the information. But no complaint is made about the ACLS in that respect. Moreover, the allegation seems to be obvious in circumstances where the information was supplied as part of the process of drawing down on the facility and went to the heart of the operation of the facility.

23. As to the substantive issue, in my opinion, that is clearly a matter of fact to be resolved at the final hearing. It does not form a proper basis for a summary dismissal or a strike out application.

24. The contention that Ms Abbas made the representations as a mere conduit is a shorthand way of expressing a more complex relationship which requires a detailed examination of the facts. The question is whether in all the circumstances Ms Abbas was to be understood as conveying nothing herself about the accuracy or otherwise of the information she provided. That depends on, among other things, her role within Sentox, the nature of her dealings with Westpac, the nature of the information supplied and Ms Abbas’s knowledge concerning that information. In relation to this last point, it is relevant to observe that it would be one thing to regard Ms Abbas as a mere conduit when there was no reason to think that she had any reason to believe that the information she was conveying was inaccurate. It would be quite another if she knew that it was false.

25. Moreover, the question for present purposes is not whether Ms Abbas was a mere conduit for Sentox. Rather, the question is whether the Court can be satisfied on the basis of the available evidence that Westpac has an arguable case that she was not. In my opinion, it can. The evidence is that Ms Abbas worked for Sentox over an extended period of time and that she was a key employee in a business that had a limited number of employees. She was the person responsible for supplying much of the information required in connection with the facility. In that capacity, she had substantial dealings with Westpac. It appears that many of the requests to drawdown on the facility were completed by Ms Abbas. As part of that process, Ms Abbas completed the warranties set out above. The evidence is that the fraud was perpetrated over a lengthy period of time and was large compared to the size of Sentox’s business.

26. There is also evidence that amounts drawn down on the facility were paid into a personal account belonging to Ms Abbas and then returned through intermediate accounts to Sentox, giving the impression that Sentox was receiving payment from debtors in the ordinary course of business. Those payments were made in 2011 whereas Westpac’s case is limited to the period from 2014. But nothing turns on that. What occurred in 2011 is still strong evidence that Ms Abbas was aware of the fraud that continued to be perpetrated from 2014 and beyond.

20. Accordingly, it is at least strongly arguable that Ms Abbas was aware of the fraud and aware that information that she provided to the Bank was false. If that is correct, it is strongly arguable that she was not a mere conduit and that she herself was guilty of the tort of deceit.

21. Accordingly, the notice of motion filed on 1 February 2022 must be dismissed.

The freezing order

29. It is common ground that in order to be entitled to a freezing order and asset disclosure orders Westpac must establish:

1. that it has a good arguable case against Ms Abbas – that is, that is has a good arguable case that Ms Abbas is liable in deceit;

2. that absent the order there is a danger that any judgment obtained against Ms Abbas will be wholly or partly unsatisfied because Ms Abbas might abscond, might remove her assets from Australia or might dispose of her assets or diminish their value: see UCPR r 25.14(4).

30. For the reasons I have explained in the context of Ms Abbas’s motion, I am satisfied that Westpac has a good arguable case.

31. Ms Abbas submits that Westpac has failed to establish that there is a danger that the prospective judgment will go unsatisfied if the orders are not made. She submits that Westpac has not adduced any evidence of a risk that her assets will be dissipated. Moreover, she points to the fact that Westpac did not apply for an ex parte order, which might have been expected if the risk were real.

32. I do not accept those submissions. In my opinion, there is a strong case that Ms Abbas knew of the fraud perpetuated by Sentox on Westpac and willingly participated in it. It can be inferred from that that there is a real risk that unless the orders are made, Ms Abbas will seek to alienate her assets or hide those that cannot be readily identified so as to defeat any judgment obtained against her: see Patterson v BTR Engineering (Aust) Ltd (1989) NSWLR 319, 325–6 per Gleeson CJ; Hurst v Prasad [2021] FCA 1562 at [27] per Cheeseman J. That inference is not undermined by the fact that Westpac did not seek ex parte orders.

33. Accordingly, orders should be made in terms of those sought in paras 1, 2 and 3 of Westpac’s notice of motion.

Orders and costs

34. In my opinion, it is appropriate that Ms Abbas pay Westpac’s costs of both motions. The two motions were linked in that they both depended largely on whether Westpac had an arguable case. Westpac has been entirely successful in relation to both motions.

35. The orders of the Court, therefore, are:

1. The notice of motion filed on 1 February 2022 be dismissed with costs.

2. Upon the plaintiff giving the undertakings contained in Schedule A of Annexure B to the notice of motion filed 6 December 2021, make orders in terms of the asset disclosure orders set out in Annexure A to this judgment and asset preservation orders set out in Annexure B to this judgment.

3. Order that the eighth defendant pay the plaintiff’s costs of the notice of motion filed on 6 December 2021.

**********

Annexure A (Asset Disclosure Orders)

TO:    SAHAR EL-AHMAD (ALSO KNOWN AS SAHAR ABBAS)

THE COURT ORDERS:

INTRODUCTION

1. In this order:

(a)   'You', where there is more than one of you, includes all of you and includes you if you are a corporation;

(b)   If you are ordered to do something, you must do it by yourself or through directors, officers, partners, employees, agents or other acting on your behalf or on your instructions.

PROVISION OF INFORMATION

1. Subject to order 3, you must:

(a)   Within 5 working days after being served with this order, to the best of your ability inform the plaintiff in writing of all your assets worldwide, giving their value, location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of your interest in the assets (including whether held legally or beneficially);

(b)   Within 5 working days after being served with this order, swear and serve on the plaintiff, an affidavit setting out the above information;

3.(a)   This paragraph 3 applies, if you are not a corporation and you wish to object to complying with paragraphs 2 on the ground that some or all of the information required to be disclosed may tend to provide that you:

1. have committed an offence against or arising under an Australian law or a law of a foreign country; or

2. are liable to a civil penalty.

(b)   This paragraph 3 applies if you are a corporation and all of the persons who are able to comply with paragraph 2 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 2 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively:

1. have committed an offence against or arising under an Australian law or a law of a foreign country; or

2. are liable to a civil penalty.

(c)   You must:

1. disclose so much of the information required to be disclosed to which no objection is taken; and

2. prepare an affidavit containing so much of the information required to be disclosed to which objection is taken, and deliver it to the Court in a sealed envelope; and

3. file and serve on each party a separate affidavit setting out the basis of the objection.

Annexure B (Asset Preservation Orders)

PENAL NOTICE

TO:    SAHAR EL-AHMAD (ALSO KNOWN AS SAHAR ABBAS)

IF YOU:

(A)   REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B)   DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING;

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

TO:    SAHAR EL-AHMAD (ALSO KNOWN AS SAHAR ABBAS)

This is a 'freezing order' made against you on 23 February 2022 by Justice Ball at a hearing upon the giving of the undertaking set out in Schedule A to this order.

THE COURT ORDERS:

INTRODUCTION

1. Anyone served with or notified of this order, including you, may apply to the Court at any time to vary or discharge this order or so much of it as affects the person served or notified.

2. In this order:

'plaintiff', if there is more than one plaintiff, includes all the plaintiffs;

'you', where there is more than one of you, includes all of you and includes you if you are a corporation;

'third party' means a person other than you and the plaintiff;

'unencumbered value' means value free of mortgages, charges, liens or other encumbrances.

3.(a)    If you are ordered to do something, you must do it by yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions.

(b)   If you are ordered not to do something, you must not do it yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions or with your encouragement or in any other way.

FREEZING OF ASSETS

4.(a)    You must not remove from Australia or in any way dispose of, deal with or diminish the value of any of your assets in Australia ('Australian assets') up to the unencumbered value of AUD$15,129,428.79 ('the Relevant Amount').

(b)   If the unencumbered value of your Australian assets exceeds the Relevant Amount, you may remove any of those assets from Australia or dispose of or deal with them or diminish their value, so long as the total unencumbered value of your Australian assets still exceeds the Relevant Amount.

(c)   If the unencumbered value of your Australian assets is less than the Relevant Amount, and you have assets outside Australia ('ex-Australian assets'):

1. You must not dispose of, deal with or diminish the value of any of your Australian assets and ex-Australian assets up to the unencumbered value of your Australian and ex-Australian assets of the Relevant Amount; and

2. You may dispose of, deal with or diminish the value of any of your ex-Australian assets, so long as the unencumbered value of your Australian assets and ex-Australian assets still exceeds the Relevant Amount.

1. For the purposes of this order:

(a)   your assets include:

1. all your assets, whether or not they are in your name and whether they are solely or co-owned;

2. any asset which you have the power, directly or indirectly, to dispose of or deal with as if it were your own (you are to be regarded as having such power if a third party holds or controls the asset in accordance with your direct or indirect instructions); and

(b)   the value of your assets is the value of the interest you have individually in your assets.

EXCEPTIONS TO THIS ORDER

1. This order does not prohibit you from the following:

(a)   paying up to $200,000 with respect to legal expenses;

(b)   dealing with or disposing of any of your assets in the ordinary and proper course of your business, including paying business expenses bona fide and properly incurred;

(c)   in relation to matters not falling within (a) or (b), dealing with or disposing of any of your assets in discharging obligations bona fide and properly incurred under a contract entered into before this order was made, provided that before doing so you give the plaintiff, if possible, at least two working days written notice of the particulars of the obligation; and

(d)   paying up to $1,500 a week on your ordinary living expenses (including rent).

1. You and the plaintiff may agree in writing that the exceptions in the preceding paragraph are to be varied. In that case the plaintiff or you must as soon as practicable file with the Court and serve on the other a minute of a proposed consent order recording the variation signed by or on behalf of the plaintiff and you, and the Court may order that the exceptions are varied accordingly.

8.(a)   This order will cease to have effect if you:

1. pay the sum of $15,129,428.79 into Court; or

2. pay that sum into a joint bank account in the name of your solicitor and the solicitor for the plaintiff as agreed in writing between them; or

3. provide security in that sum by a method agreed in writing with the plaintiff to be held subject to the order of the Court; or

4. settle the dispute with the plaintiff; or

(b)   Any such payment and any such security will not provide the plaintiff with any priority over your other creditors in the event of your insolvency.

(c)   If this order ceases to have effect pursuant (a), you must as soon as practicable file with the Court and serve on the plaintiff notice of that fact.

PERSONS OTHER THAN THE PLAINTIFF AND RESPONDENT

1. Set off by banks

This order does not prevent any bank from exercising any right of set off it has in respect of any facility which it gave you before it was notified of this order.

1. Bank withdrawals by the respondent

No bank need inquire as to the application or proposed application of any money withdrawn by you if the withdrawal appears to be permitted by this order.

1. Persons outside Australia

(a)   Except as provided in subparagraph (b) below, the terms of this order do not affect or concern anyone outside Australia.

(b)   The terms of this order will affect the following persons outside Australia:

1. you and your directors, officers, employees and agents (except banks and financial institutions);

2. any person (including a bank or financial institution) who:

(A)   is subject to the jurisdiction of this Court; and

(B)   has been given written notice of this order, or has actual knowledge of the substance of the order and of its requirements; and

(C)   is able to prevent or impede acts or omissions outside Australia which constitute or assist in a disobedience breach of the terms of this order; and

1. any other person (including a bank of financial institution), only to the extent that this order is declared enforceable by or is enforced by a court in a country or state that has jurisdiction over that person or over any of that person's assets.

1. Assets located outside Australia

Nothing in this order shall, in respect of assets located outside Australia, prevent any third party from complying or acting in conformity with what it reasonably believes to be its bona fide and properly incurred legal obligations, whether contractual or pursuant to a court order or otherwise, under the law of the country or state in which those assets are situated or under the proper law of any contract between a third party and you, provided that in the case of any future order of a court of that country or state made on your or the third party's application, reasonable written notice of the making of the application is given to the plaintiff.

SCHEDULE A

UNDERTAKINGS GIVEN TO THE COURT BY THE PLAINTIFF

1. The plaintiff undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order.

2. As soon as practicable, the plaintiff will cause anyone notified of this order to be given a copy of it.

3. If this order ceases to have effect [1] the plaintiff will promptly take all reasonable steps to inform in writing anyone who has been notified of this order, or who has reasonable grounds for supposing may act upon this order, that it has ceased to have effect.

4. The plaintiff will not, without leave of the Court, use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in or outside Australia, other than this proceeding.

5. The plaintiff will not, without leave of the Court, seek to enforce this order in any country outside Australia or seek in any country outside Australia an order of a similar nature or an order conferring a charge or other security against the respondent or the respondent's assets.

END NOTES

1. For example, if the eighth defendant pays money into Court or provides security, as provided for in paragraph 9 of this Order.

Decision last updated: 23 February 2022