Silversea Cruises Australia Pty Ltd v Abellanoza [2019] NSWCA 306

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Silversea Cruises Australia Pty Ltd v Abellanoza [2019] NSWCA 306 Hearing dates: 1 July 2019 Date of orders: 20 December 2019 Decision date: 20 December 2019 Before: Bathurst CJ at [1]; Basten JA at [62]; Gleeson JA at [106] Decision: (1) Appeal allowed in part.

(2) The orders made by the primary judge on 13 December 2018 are amended by the addition of the Order 1A.

1A Order that the Second Defendant is liable to account to the Plaintiff for the sum of $20,000 withdrawn by him from Commonwealth Bank Account No. 06 2293 10316831 on 26 April 2018, together with interest on the said sum at the rate of 5.5% from 26 April 2018 up to the date of this judgment and thereafter at the rate of 7.5% until payment.

(3) If not resolved by agreement, direct the parties to make submissions as to the appropriate costs orders within 7 days. Catchwords: EQUITY – fraud - respondent's wife defrauded employer of over $3.5 million and deposited into bank accounts in her name and accounts held jointly by herself and respondent - respondent's wife paid money realised from gambling into respondent's bank accounts - appellant sought various orders in aid of the recovery of the amount defrauded – primary judge dismissed all claims except one against respondent – whether primary judge erred in finding that respondent did not knowingly deal with monies obtained by dishonest means and is not personally liable to appellant – whether primary judge erred in failing to find that the respondent knowingly dealt with monies obtained by dishonest means when withdrew $20,000 after receiving summons and is personally liable to appellant for this amount – whether primary judge erred in failing to find that respondent personally liable to account to the appellant as a constructive trustee. Legislation Cited: Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Agip (Africa) Ltd v Jackson [1990] Ch 265 Banque Belge pour L'Etranger v Hambrouck [1921] 1 KB 321 Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 Barnes v Addy (1874) LR 9 Ch App 244 Barros Mattos Jnr v MacDaniels Ltd [2004] 3 All ER 299; [2004] EWHC 1188 Black v S Freedman and Co (1910) 12 CLR 105; [1910] HCA 58 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Fistar v Riverwood Legion and Community Club Ltd (2016) 91 NSWLR 732; [2016] NSWCA 81 Foskett v McKeown [2001] 1 AC 102 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296; [2012] FCAFC 6 Heperu Pty Ltd v Belle (2009) 76 NSWLR 230; [2009] NSWCA 252 In re Diplock [1948] Ch 465 Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548 Metwally v University of Wollongong (1985) 60 ALR 68 Robb Evans v European Bank Ltd (2004) 61 NSWLR 75; [2004] NSWCA 82 Russell Gould Pty Ltd v Ramangkura (2014) 87 NSWLR 552; [2014] NSWCA 310 Sze Tu v Lowe (2014) 89 NSWLR 317; [2014] NSWCA 462 Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 Texts Cited: K Mason, J W Carter, G J Tolhurst, Mason and Carter's Restitution Law in Australia (3rd ed, 2016, LexisNexis Butterworths) R P Meagher, J D Heydon, M J Leeming, Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (4th ed, 2002, LexisNexis Butterworths) Category: Principal judgment Parties: Silversea Cruises Australia Pty Ltd (appellant) Perven Salas Abellanoza (respondent) Representation: Counsel: D Mahendra (appellant) D Robertson (respondent)