Heperu Pty Ltd & Ors v Patricia Belle [2011] NSWSC 1151

Supreme Court New South Wales

Medium Neutral Citation: Heperu Pty Ltd & Ors v Patricia Belle [2011] NSWSC 1151 Hearing dates: 21 June 2011 Decision date: 16 September 2011 Jurisdiction: Equity Division Before: Slattery J Decision: The defendant should restore to the plaintiff the sum of $86,970.01 plus interest to be assessed. Catchwords: TRACING - personal liability for value remaining of misappropriated funds that can be traced into real property - tracing of misappropriated cheques into mortgage repayments made on real property - tracing through mixed fund - assessment of sum to be restored. Legislation Cited: Civil Procedure Act 2005 (NSW), s 100 Cases Cited: Heperu Pty Limited v Belle (2009) 76 NSWLR 230 Heperu Pty Limited v Belle (No. 2) [2010] NSWCA 13 Heperu Pty Limited & Ors v Morgan Brooks Pty Limited & Ors (No. 2) [2007] NSWSC 1438 Re Sutherland; French Caledonia Travel Service Pty Limited (in liquidation) [2003] NSWSC 1008; 59 NSWLR 361 Category: Principal judgment Parties: Plaintiff- Heperu Pty Ltd Second Plaintiff- Kirisi Holdings Pty Limited Defendant- Patricia Belle Representation: Plaintiff- G. Burton; C.L. Cochrane Fourth Defendant- litigant in person Plaintiff-T. Bray, Thomas Henry Bray Lawyer Fourth Defendant- litigant in person File Number(s): 03/87360 Publication restriction: No.

Judgment 1This is the Court's fourth judgment in these proceedings between Heperu Pty Limited ("Heperu") and Ms Patricia Belle. The findings in the Court's prior judgments have determined all issues between Heperu and Ms Belle other than (1) assessing the value of any traceable benefit that she has received from misappropriated funds and (2) dealing with consequential issues including costs. This judgment determines the first of those questions and gives directions for the determination of the second. 2The Court's prior findings, set out in the judgments of Palmer J ( Heperu Pty Limited & Ors v Morgan Brooks Pty Limited & Ors (No. 2) [2007] NSWSC 1438 and the two judgments of the Court of Appeal in August 2009 ( Heperu Pty Limited v Belle (2009) 76 NSWLR 230; [2009] NSWCA 252) and in February 2010 ( Heperu Pty Limited v Belle (No. 2) [2010] NSWCA 13) provide the basis for an uncontentious narrative of fact for the Court's assessment of the value of any traceable benefit in Ms Belle's hands. Those judgments should be read with this judgment.