NAB LTD v. RUSU & 4 ORS [2001] NSWSC 32

New South Wales Supreme Court

CITATION : NAB LTD v. RUSU & 4 ORS [2001] NSWSC 32 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4371/96 HEARING DATE(S) : 28 & 29/04/99 and 16 & 17/11/00 JUDGMENT DATE : 12 February 2001

National Australia Bank Limited (Plaintiff)

Monica Charis Rusu (First Defendant) PARTIES : Peter Francis Mato (Second Defendant) Petru Mato (Third Defendant) Anisora Mato (Fourth Defendant) Edward Laurentio Popeea (Fifth Defendant) JUDGMENT OF : Bryson J at 1

Mr J Thomson for Plaintiff COUNSEL : Second, Third, Fourth and Fifth Defendants appeared unrepresented on 28 & 29/4/99; Second Defendant appeared unrepresented on 16 & 17/11/00; W. Washington for Third and Fourth Defendants on 16 & 17/11/00. SOLICITORS : Dibbs Crowther & Osborne for Plaintiff Nemes Thomas & Co. for Third and Fourth Defendants CATCHWORDS : RESTITUTION - proceeds of theft - Bank sued clerk to recover moneys stolen by her from the safe and recovered judgment - Bank sued her de facto and recovered amounts obtained by him from her with knowledge that money was stolen and spent for his own purposes - expenditure by him included repayments to financier on account of a loan to him secured by mortgage over his parents' house - Bank sued parents for restitution for advantage derived by them from reduction of mortgage and relied on Barnes v. Addy and on subrogation - claim failed as parents were not dishonest accessories or recipients - financier was not in any sense their agent to receive funds. Barnes v. Addy (1874) LR 9 Ch. App. 244, Royal Brunei Airlines Sdn Bhd v. Tan [1995] 2 AC 378, CASES CITED : Black v. S Freedman & Co (1910) 12 CLR 105 Beach Petroleum NL v. Kennedy (1999) 48 NSWLR 1 Australia and New Zealand Banking Group Ltd v. Westpac Banking Corp. (1988) 164 CLR 662 DECISION : See para.54.