Westpac Banking Corporation v Sentox Pty Ltd [2022] NSWSC 150

Westpac Banking Corporation v Sentox Pty Ltd [2022] NSWSC 150

Westpac has sufficiently particularised its claim of deceit against Ms Abbas, who was responsible for supplying information central to the drawdowns and knew of its falsity. The submissions for summary dismissal are rejected and Westpac’s case is at least strongly arguable for tort of deceit. The risk of asset dissipation is supported by evidence, justifying freezing and asset disclosure orders.

Parties
Plaintiff: Westpac Banking Corporation; First Defendant: Sentox Pty Ltd (Receivers and Managers Appointed); Second Defendant: Kathie Musumeci; Third Defendant: Andrew Musumeci; Fourth Defendant: Cheeky Farms Pty Ltd; Fifth Defendant: ACE Agriculture Pty Ltd; Sixth Defendant: Musumeci Property Investments Pty Ltd; Seventh Defendant: CAO Holdings Pty Ltd; Eighth Defendant: Sahar El-Ahmad aka Sahar Abbas
Jurisdiction
Australia
Judgment Date
23 February 2022
Procedural Posture
Commercial List Statement (equity) / Ruling on Two Notices of Motion: Summary Dismissal and Asset Freezing Order
Outcome
Notice of motion for summary dismissal dismissed. Asset disclosure and preservation (freezing orders) granted. Costs awarded to plaintiff.
Legal Topics
Summary Disposal, Freezing Orders, Asset Disclosure, Deceit
Civil Procedure Equity Commercial Law Summary Disposal Freezing Orders Asset Disclosure Deceit

Case Brief

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Parties

Westpac Banking Corporation

Plaintiff

Sentox Pty Ltd (Receivers and Managers Appointed)

First Defendant

Kathie Musumeci

Second Defendant

Andrew Musumeci

Third Defendant

Cheeky Farms Pty Ltd

Fourth Defendant

ACE Agriculture Pty Ltd

Fifth Defendant

Musumeci Property Investments Pty Ltd

Sixth Defendant

CAO Holdings Pty Ltd

Seventh Defendant

Sahar El-Ahmad aka Sahar Abbas

Eighth Defendant

Procedural Posture

Commercial List Statement (equity) / Ruling on Two Notices of Motion: Summary Dismissal and Asset Freezing Order

Legal Issues

  1. 1 Whether proceedings against the eighth defendant should be dismissed
  2. 2 Whether the claim sufficiently identifies and particularises any representation made by the eighth defendant
  3. 3 Whether asset preservation (freezing) and disclosure orders should be issued against the eighth defendant given allegations of deceit

Ratio Decidendi

Westpac has sufficiently particularised its claim of deceit against Ms Abbas, who was responsible for supplying information central to the drawdowns and knew of its falsity. The submissions for summary dismissal are rejected and Westpac’s case is at least strongly arguable for tort of deceit. The risk of asset dissipation is supported by evidence, justifying freezing and asset disclosure orders.

Court Disposition

Notice of motion for summary dismissal dismissed. Asset disclosure and preservation (freezing orders) granted. Costs awarded to plaintiff.

Orders

  • Notice of motion filed on 1 February 2022 dismissed with costs.
  • Upon the plaintiff undertaking as per Schedule A of Annexure B to notice of motion filed 6 December 2021, asset disclosure orders set out in Annexure A and asset preservation orders (freezing orders) in Annexure B are made.