Heperu Pty Limited v Belle [No 2] [2010] NSWCA 13

New South Wales Court of Appeal

CITATION: Heperu Pty Limited v Belle [No 2] [2010] NSWCA 13

HEARING DATE(S): 17 November 2009

JUDGMENT DATE: 12 February 2010

JUDGMENT OF: Allsop P at 1; Campbell JA at 13; Handley AJA at 14

DECISION: 1. Allow the appeal and set aside orders 1 and 2 made by the Equity Division on 4 February 2008 and entered on 12 March 2008 and in lieu thereof remit the matter to the primary judge for assessment of the value of the traceable benefit (if any) in the retained relevant properties held by the respondent when she received notice that misappropriated funds had been paid into the Westpac account, the primary judge in the conduct of such assessment, subject to the reasons of this Court on 26 August 2009 and 12 February 2010, be free (a) to assess the amount of that benefit (if any) to be payable to the appellants; (b) to assess and make an order in respect of costs of the first hearing before him and of the assessment; and (c) to order the payment of any such sum found to be such benefit. 2. The parties file written submissions on costs within 14 days.

CATCHWORDS: REMEDY - further submissions as to tracing - assessment of benefit ordered

CATEGORY: Procedural and other rulings

Heperu Pty Limited PARTIES: Kirisi Holdings Pty Limited Patrice Belle (formerly Patrice Cincotta)

FILE NUMBER(S): CA 40107/08

COUNSEL: G K Burton SC, C L Cochrane (Appellants) J S Van Aalst (Respondent)

SOLICITORS: Thomas Henry Bray, Sydney (Appellants) Hardings Lawyers, Sydney (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): 6165/03

LOWER COURT JUDICIAL OFFICER: Palmer J