Rabo Equipment Finance Pty Ltd v Boutayeh [2001] NSWSC 1179

Rabo Equipment Finance Pty Ltd v Boutayeh [2001] NSWSC 1179

Defendants failed to appear/defend; both procedural and evidential requirements for judgment (either by admissions or summary relief) satisfied. As funds were obtained by fraud, held on trust for the plaintiff, and not returned, default/summary judgment is justified for the amount outstanding plus interest.

Parties
Plaintiff: Rabo Equipment Finance Pty Ltd; First Defendant: Pierre Boutors Boutayeh; Second Defendant: JMJ Refunds Pty Limited; Third Defendant: Petro Mariam Holdings Pty Limited; Fourth Defendant: Westpac Banking Corporation; Fifth Defendant: Josef Shadi Alexander; Sixth Defendant: Australia and New Zealand Banking Group Limited; Seventh Defendant: Imad Tanious Boutayeh & Kilda Boutayeh; Eighth Defendant: St George Bank Limited
Jurisdiction
Australia
Judgment Date
10 December 2001
Procedural Posture
Proceedings for Monetary Relief (fraud Claim) Commenced by Summons / Judgment (default or Summary)
Outcome
Default or summary judgment entered against first, second, third, and fourth defendants.
Legal Topics
Procedure—supreme Court Procedure—practice Under Supreme Court Rules—service—default of Appearance—summary Judgment—trust—fraud
Equity Civil Procedure Procedure—supreme Court Procedure—practice Under Supreme Court Rules—service—default of Appearance—summary Judgment—trust—fraud

Case Brief

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Parties

Rabo Equipment Finance Pty Ltd

Plaintiff

Pierre Boutors Boutayeh

First Defendant

JMJ Refunds Pty Limited

Second Defendant

Petro Mariam Holdings Pty Limited

Third Defendant

Westpac Banking Corporation

Fourth Defendant

Josef Shadi Alexander

Fifth Defendant

Australia and New Zealand Banking Group Limited

Sixth Defendant

Imad Tanious Boutayeh & Kilda Boutayeh

Seventh Defendant

St George Bank Limited

Eighth Defendant

Procedural Posture

Proceedings for Monetary Relief (fraud Claim) Commenced by Summons / Judgment (default or Summary)

Legal Issues

  1. 1 Whether funds were fraudulently obtained by first defendant
  2. 2 Whether summary or default judgment should be entered against first, second, and third defendants for fraud
  3. 3 Whether proper service was effected for obtaining judgment in default

Ratio Decidendi

Defendants failed to appear/defend; both procedural and evidential requirements for judgment (either by admissions or summary relief) satisfied. As funds were obtained by fraud, held on trust for the plaintiff, and not returned, default/summary judgment is justified for the amount outstanding plus interest.

Court Disposition

Default or summary judgment entered against first, second, third, and fourth defendants.

Orders

  • Orders granted for repayment of misappropriated funds (less repaid amount) and interest.
  • Orders in accordance with short minutes presented and initialled by the judge.