Supreme Court New South Wales Medium Neutral Citation: Bupa Hi Pty Limited v Montero [2020] NSWSC 806 Hearing dates: 18 June 2020 Date of orders: 18 June 2020 Decision date: 18 June 2020 Jurisdiction: Common Law Before: Lonergan J Decision: (1) I grant leave to the plaintiff to add to paragraph 7 of the form of Summons a Commonwealth Bank account BSB [REDACTED], account no. [REDACTED] and I have noted the Summons accordingly. (2) That leave be granted to the plaintiff to file in Court the Summons and the affidavit of Katherine Morgan sworn 17 June 2020. (3) This Summons be heard instanter for orders 1, 3, 4 and 6. (4) That the time for service of the Summons and affidavit of Katherine Morgan sworn 17 June 2020 be abridged to until 5:00pm (AEST) on Monday 22 June 2020. (5) Upon the plaintiff's usual undertaking as to damages, the receipt of which is hereby noted, a freezing order pursuant to rule 25.11 of the Uniform Civil Procedure Rules 2005 against the defendant in the form of Annexure A to this Summons. Pursuant to rule 25.12 or 25.14 of the Uniform Civil Procedure Rules 2005, should the bank accounts referred to or any other bank accounts held or controlled by the defendant contain funds insufficient to amount to a sum of $1,306,718.00, an order that the defendant be restrained from disposing of, removing, encumbering, diminishing or otherwise dealing with in any way any real property to which the defendant has an interest. (6) The affidavit of Katherine Morgan sworn 17 June 2020 be kept confidential and not be released to or accessed by any person or organisation without leave of a Judge of the Court. (7) Costs are reserved. (8) These orders be entered forthwith. (9) The matter is listed on 26 June 2020 before the Common Law Duty Judge at 10:00am. (10) The plaintiff is to file and serve a Statement of Claim within 21 days. (11) The bank account numbers referred to in the documents and in my judgment and in the affidavit of Katherine Morgan are not to be published. (12) I grant leave to the plaintiff to file in Court an Amended Summons dated 18 June 2020. Catchwords: CIVIL PROCEDURE — interim preservation — freezing orders Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Samimi v Seyedabadi [2013] NSWCA 279 Category: Procedural rulings Parties: Bupa Hi Pty Limited (Plaintiff) Sachin Montero (Defendant) Representation: Counsel: B Clark (Plaintiff) Solicitors: M Doble (Plaintiff) File Number(s): 2020/179740 Publication restriction: Note order (11) relating to bank account numbers. Ex tempore Judgment 1. The plaintiff seeks a freezing order against the defendant in accordance with r 25.11 of the Uniform Civil Procedure Rules 2005 (NSW). 2. The order is sought without notice to the defendant. In support of the application the plaintiff reads an affidavit of Katherine Morgan sworn 17 June 2020. Ms Morgan is a team leader of the ancillary utilisation review team at the plaintiff company and her duties involving analysing data for the purpose of prevention of claims leakage". 3. To put it bluntly, the plaintiff alleges that the defendant committed a sophisticated fraud between and by opening various policies in various names by telephone and then made online claims under the policies in the 6 week premium free period using fake details to claim for services that were never rendered. He also used real bank accounts owned by others to set up premium deductions and the plaintiff became alerted to this when the holders of those accounts contacted the plaintiff to ask why premiums were being deducted. 4. Ms Morgan estimates that claims were made in respect of something of the order of 10,000 fake services and were paid into two specified bank accounts. 5. The defendant has been charged by the police and Ms Morgan deposes to her belief that the criminal proceedings are first returnable for plea or mention at Gosford Local Court on 17 July 2020. The court attendance notice and police facts sheet issued to the defendant are exhibited to Ms Morgan's affidavit. 6. There is also a large exhibit that includes a master list of claims made by the defendant which appear to be fraudulent. Ms Morgan estimates that the records show benefits paid into the two identified accounts in the amount of $1,306,718. The material also demonstrates services were not provided by investigating the situation by random interrogation of the health care providers. There is also material which demonstrates that on the whole premiums were never paid in respect of the policies set up by the defendant. 7. The affidavit of Ms Morgan in effect exhibits a substantial body of potentially supportive material for all the allegations made. 8. Proceedings will be filed in this court seeking recovery of the sums that the plaintiff says were fraudulently appropriated. The plaintiff says it will be in a position to do that in 21 days. 9. Whilst the precise amount of the fraud is not perfectly calculated, based on the material before the court I am well satisfied that the plaintiff has a "good arguable case" on liability. 10. Based on the dishonesty alleged in the materials, and the nature of the activity it is asserted that the defendant has engaged in I am satisfied that there is a danger that a prospective judgment may remain unsatisfied because the defendant may abscond or dispose of relevant assets. 11. The plaintiff has given an undertaking as to damages in accordance with the usual procedure of this court. There are no strong discretionary considerations of which I was made aware that militate against the making of a freezing order. The plaintiff is in a position to move forward with the litigation and indeed has sought the issue of subpoenas today to that end. 12. The matter can be returnable once the defendant is put on notice, next week and the form of order is in accordance with that set out in the Supreme Court Practice Note Gen 14. 13. For those reasons and as indicated in the course of argument I am satisfied that a freezing order should be made. 14. There is a high duty of candor imposed on a party who pursues a stay on an ex parte basis. 15. Mr Clark made it clear in his oral submissions that investigations of the matter are ongoing and that includes the issuing of the subpoenas that will later be dealt with by me in chambers. I am satisfied, however that the given the nature of the allegations, the application should be heard ex parte. 16. I am also satisfied here that the affidavit of Ms Morgan and the exhibited material establishes that the plaintiff has a good arguable case of fraud against the defendant as required by the authorities such as Samimi v Seyedabadi [2013] NSWCA 279. Orders 1. I am going to make orders in accordance with the Short Minutes of Order which I have available: 1. I grant leave to the plaintiff to add to paragraph 7 of the form of Summons a Commonwealth Bank account BSB [REDACTED], account no. [REDACTED] and I have noted the Summons accordingly. 2. That leave be granted to the plaintiff to file in Court the Summons and the affidavit of Katherine Morgan sworn 17 June 2020. 3. This Summons be heard instanter for orders 1, 3, 4 and 6. 4. That the time for service of the Summons and affidavit of Katherine Morgan sworn 17 June 2020 be abridged to until 5:00pm (AEST) on Monday 22 June 2020. 5. Upon the plaintiff's usual undertaking as to damages, the receipt of which is hereby noted, a freezing order pursuant to rule 25.11 of the Uniform Civil Procedure Rules 2005 against the defendant in the form of Annexure A to this Summons. Pursuant to rule 25.12 or 25.14 of the Uniform Civil Procedure Rules 2005, should the bank accounts referred to or any other bank accounts held or controlled by the defendant contain funds insufficient to amount to a sum of $1,306,718.00, an order that the defendant be restrained from disposing of, removing, encumbering, diminishing or otherwise dealing with in any way any real property to which the defendant has an interest. 6. The affidavit of Katherine Morgan sworn 17 June 2020 be kept confidential and not be released to or accessed by any person or organisation without leave of a Judge of the Court. 7. Costs are reserved. 8. These orders be entered forthwith. 9. The matter is listed on 26 June 2020 before the Common Law Duty Judge at 10:00am. 10. The plaintiff is to file and serve a Statement of Claim within 21 days. 11. The bank account numbers referred to in the documents and in my judgment and in the affidavit of Katherine Morgan are not to be published. 12. I grant leave to the plaintiff to file in Court an Amended Summons dated 18 June 2020. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 August 2024