Westpac Banking Corporation v Forum Finance Pty Limited (Freezing Order Variation No 2)

• Jurisdiction: Australia Federal only
• Judgment Date: 10 October 2022
• Neutral Citation: [2022] FCA 1206
• Date: 10 October 2022
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Westpac Banking Corporation v Forum Finance Pty Limited (Freezing Order Variation No 2) [2022] FCA 1206

File number(s):	NSD 616 of 2021
Judgment of:	THAWLEY J
Date of judgment:	10 October 2022
Date of publication of reasons:	18 October 2022
Catchwords:	PRACTICE AND PROCEDURE – application for variation of freezing order – whether to increase exception to freezing order to allow further payment of legal expenses – where variation would further erode assets over which proprietary claims have been made – application to strike out pleadings – whether party understands case in sufficient detail to enable fair trial – application dismissed
Legislation:	Corporations Act 2001 (Cth) ss 459C, 471B Federal Court of Australia Act 1976 (Cth) ss 37M, 54A Federal Court Rules 2011 (Cth) rr 16.41, 16.42, 16.43
Cases cited:	Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd [2011] FCA 677 Fatimi v Bryant[2004] NSWCA 140; 59 NSWLR 678 Goumas v McIntosh [2002] NSWSC 713 Hughes in the matter of Substar Holdings Pty Ltd (in liquidation)[2020] FCA 1863 Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd[2008] NSWSC 1344; 74 NSWLR 550 Muriniti v Lawcover Insurance Pty Ltd[2022] NSWSC 90 National Australia Bank Ltd v Human Group Pty Ltd (No 2) [2020] NSWSC 1900 Short v Crawley (No 42)[2009] NSWSC 1110 Sino Iron Pty Ltd v Worldwide Wagering Pty Ltd [2017] VSC 101; 52 VR 664 Uber Australia Pty Limited v Andrianakis[2020] VSCA 186; 61 VR 580 Westpac Banking Corporation v Forum Finance Pty Limited (Contempt Application)[2021] FCA 1341 Westpac Banking Corporation v Forum Finance Pty Limited (Freezing Order Variation)[2022] FCA 910 Westpac Banking Corporation v Forum Finance Pty Limited (Greek Telephone Number)[2021] FCA 1340 Westpac Banking Corporation v Forum Finance Pty Limited (Sale of Properties) [2022] FCA 171 Westpac Banking Corporation v Forum Finance Pty Limited[2021] FCA 807
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs:	95
Date of hearing:	10 October 2022
Counsel for the Applicants:	Mr J Giles SC with Ms V Brigden
Solicitor for the Applicants:	MinterEllison
Counsel for the Tesoriero Parties:	Mr A McInerney SC with Mr M O’Haire
Solicitor for the Tesoriero Parties:	Aptum Legal
Counsel for the Liquidators:	Mr N Kidd SC
Solicitor for the Liquidators:	Allens
Counsel for SMBC Leasing & Finance:	Ms E L Beechey
Solicitors for SMBC Leasing & Finance:	Jones Day

ORDERS

		NSD 616 of 2021
BETWEEN:	WESTPAC BANKING CORPORATION ABN 33 007 457 141 First Applicant ; WESTPAC NEW ZEALAND LIMITED (COMPANY REGISTRATION NUMBER COMPANY NUMBER 1763882) Second Applicant
AND:	FORUM FINANCE PTY LIMITED (IN LIQUIDATION) ACN 153 301 172 First Respondent ; BASILE PAPADIMITRIOU Second Respondent ; VINCENZO FRANK TESORIERO Third Respondent

order made by:	THAWLEY J
DATE OF ORDER:	10 OCTOBER 2022

THE COURT ORDERS THAT:

1. the requirements of rules 16.41, 16.42 and 16.43 of the Federal Court Rules 2011 (Cth) be dispensed with to the extent that those rules otherwise operate to require the particulars of the Second Further Amended Statement of Claim (Statement of Claim) which have in fact been provided outside of the pleadings to be, or have been, stated in the Statement of Claim;

2. paragraphs 1 and 2 of the interlocutory application dated 23 September 2022 (dealing with variation of the freezing order) be dismissed;

3. The forty-fifth respondent (Mr Tesoriero Senior) request any further and better particulars of the claim for the tort of unlawful means conspiracy pleaded at [2657] – [2665] of the Statement of Claim within 14 days;

4. Westpac provide answers to any request for further and better particulars pursuant to order 3 hereof within 14 days of receipt of the request;

5. paragraphs 3 to 6 and 9 and 10 of the interlocutory application (dealing with striking out various paragraphs of the Statement of Claim and, alternatively, the providing of particulars) be dismissed, without prejudice to:

a) the Tesoriero Parties making further targeted and appropriate requests for particulars in respect of material matters preferably identifying the contended deficiencies in the pleadings and particulars already provided; and

b) the Tesoriero Parties filing a further interlocutory application to strike out or summarily dismiss the second further amended statement of claim to be made returnable at the hearing on 6 February 2023;

6. leave be granted to the Tesoriero Parties to file and serve any amended defences by 31 October 2022;

7. the Tesoriero Parties pay the costs of the interlocutory application;

8. the Tesoriero Parties pay the costs of the interlocutory application of the fourth, tenth and thirty-seventh respondents and of Mr Jason Preston and Mr Jason Ireland in their capacities as court-appointed receivers and managers of the XOXO yacht; and

9. the Tesoriero parties pay the costs of the interlocutory application of the applicant in proceeding NSD681/2021 (SMBC Leasing and Finance Inc).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

THAWLEY J:

1 By an interlocutory application filed on 23 September 2022, the Tesoriero Parties seek orders: (a) varying afreezingorderagainstMrTesorierotoallowhimtoaccessupto$3,831,937.40forhisreasonablelegal expenses from the commencement of the proceedings to judgment; and (b) either striking out certain paragraphs of the second further amended statement of claim or, alternatively, requiring the provision of further and better particulars of certain paragraphs of the statement of claim.

2 The applicants (Westpac) oppose the orders sought in the interlocutory application. SMBC Leasing & Finance (SMBC) opposes the orders for variation of the freezing order as do the liquidators.

3 The Tesoriero Parties relied upon five affidavits (and accompanying exhibits) of Mr Evans. Westpac relied upon one affidavit of Ms Murray and an accompanying exhibit. The liquidators relied on an affidavit of Mr Ireland and an accompanying exhibit.

4 A substantial part of the general background to the proceedings may be found in the following judgments: Westpac Banking Corporation v Forum Finance Pty Limited[2021] FCA 807; Westpac Banking Corporation v Forum Finance Pty Limited (Greek Telephone Number)[2021] FCA 1340; Westpac Banking Corporation v Forum Finance Pty Limited (Contempt Application)[2021] FCA 1341; Westpac Banking Corporation v Forum Finance Pty Limited (Sale of Properties) [2022] FCA 171; and Westpac Banking Corporation v Forum Finance Pty Limited (Freezing Order Variation)[2022] FCA 910.

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