FEDERAL COURT OF AUSTRALIA

Westpac Banking Corporation v Forum Finance Pty Limited (in liq) (Relief) [2025] FCA 882

ORDERS

THE COURT ORDERS THAT:

1.    The order entered is available on the Commonwealth Courts Portal.

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

ORDERS

THE COURT ORDERS THAT:

1.    The order entered is available on the Commonwealth Courts Portal.

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

ORDERS

THE COURT ORDERS THAT:

1.    The order entered is available on the Commonwealth Courts Portal.

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

ORDERS

THE COURT ORDERS THAT:

As against the First Respondent, Forum Finance Pty Ltd (In Liquidation)

1.    Pursuant to s 51A(1)(a) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), pre-judgment interest in the amount of $78,435,756.23 be paid by Forum Finance Pty Ltd (In Liquidation) to Westpac Banking Corporation ABN 33 007 457 141 (WBC) on the amount of $253,766,555.76 from the date of receipt of the funds up to 21 May 2025, being the date on which the judgment order was made and took effect pursuant to r 39.01 of the Federal Court Rules 2011 (Cth).

As against the Second to Twenty-Eighth, Thirtieth to Thirty-Second, Thirty-Sixth to Forty-Third, Forty-Sixth and Forty-Seventh Respondents

2.    Pursuant to s 51A(1)(a) of the Federal Court Act, pre-judgment interest in the amount of $78,435,756.23 be paid by each Respondent to WBC on the amount of $253,766,555.76 from the date of receipt of the funds up to 21 May 2025, being the date on which judgment orders were made and took effect pursuant to r 39.01 of the Federal Court Rules.

3.    Pursuant to s 51A(1)(a) of the Federal Court Act, pre-judgment interest in the amount of NZD 14,491,793 be paid by each Respondent to Westpac New Zealand Limited (company registration number company number 1763882) (WNZL) on the amount of NZD 44,097,968.98 from the date of receipt of the funds up to 21 May 2025, being the date on which judgment orders were made and took effect pursuant to r 39.01 of the Federal Court Rules.

As against the Forty-Ninth Respondent, Aromatika Fyta Tsai Olympou Theion Ike

4.    Pursuant to s 51A(1)(a) of the Federal Court Act, pre-judgment interest in the amount of $26,766.09 be paid by Aromatika Fyta Tsai Olympou Theion Ike to WBC on the amount of $99,142.33 from the date of receipt of the funds up to 21 May 2025, being the date on which the judgment order was made and took effect pursuant to r 39.01 of the Federal Court Rules.

5.    Pursuant to s 51A(1)(a) of the Federal Court Act, pre-judgment interest in the amount of $8949.42 be paid by Theion Ike to WNZL on the amount of $32,988.69 from the date of receipt of the funds up to 21 May 2025, being the date on which the judgment order was made and took effect pursuant to r 39.01 of the Federal Court Rules.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

INTRODUCTION

1    These reasons concern the relief sought by the Financiers in proceedings NSD 616 of 2021, NSD 642 of 2021 and NSD 681 of 2021 (Financier Proceedings) consequential on the finding in favour of the Financiers on liability: Westpac Banking Corporation v Forum Finance Pty Limited (in liq) (Liability) [2024] FCA 1176 (Liability Judgment or LJ). These reasons assume familiarity, and should be read together, with the Liability Judgment. I adopt the defined terms used in the Liability Judgment.

2    Following delivery of the Liability Judgment, I ordered that the parties in each proceeding provide their proposed short minutes of order, together with any additional evidence in support of their proposed orders. The timetable also provided for a regime to ensure that all interested parties in the Financier Proceedings were notified of: (1) the final relief sought by each of the Financiers; (2) any additional evidence on which each Financier sought to rely; and (3) the submissions advanced in support of the relief sought. The orders made also provided for the making of written submissions by others, whether in support of, or in opposition to, any of the Financier’s proposed orders. The Financiers each provided their proposed orders and submissions in support. No other party to any of the three proceedings filed any competing proposed short minutes or submissions opposing the relief sought by the Financiers.

3    Each proceeding was listed for a concurrent hearing on relief on 20 May 2025. However, as there was no opposition by any active party to any of the Financiers’ proposed orders, on the application of the Financiers, the question of relief was determined on the papers and the Financiers were excused from the hearing. I made orders on 21 May 2025, with some variations to those orders made on 23 May 2025 and 4 June 2025. These are my reasons for making orders substantially in accordance with the proposed short minutes provided by each of the Financiers.

4    A related proceeding brought by Jason Preston and Jason Ireland in their various capacities in connection with the external administration of companies related to Forum, Bill Papas and/or Vince Tesoriero and their related properties was heard on 22 and 23 May 2025 (the Distribution Proceeding). In the Distribution Proceeding, the applicants sought judicial advice or direction as to the distribution of the assets of the entities under their control. For ease of reference, I refer to the applicants in the Distribution Proceeding as the Liquidators in these reasons. Judgment in the Distribution Proceeding will be delivered at around the same time as these reasons are published. Familiarity with the judgment in the Distribution Proceeding is assumed for the purpose of these reasons: Preston, in the matter of the Forum Group of Companies Pty Ltd (in liq) [2025] FCA 883 (Distribution Judgment or DJ).

5    Before moving to the substance of the relief sought in each proceeding, I will briefly address the procedural history since the delivery of the Liability Judgment in so far as it is presently relevant.

Summary of procedural steps

Westpac

6    The applicants in NSD 616 of 2021, Westpac Banking Corporation (WBC) and Westpac New Zealand Limited (WNZL) (together, Westpac), served their proposed orders on 7 February 2025 (Westpac Proposed Orders).

7    The evidence relied on by Westpac is set out at paragraphs [23]-[26] below.

8    Westpac filed submissions in support of the Westpac Proposed Orders on 21 February 2025.

9    On 12 March 2025, Westpac confirmed that they had received no indication that any active party opposed the Westpac Proposed Orders.

10    At that time, Westpac were awaiting the Australian Securities and Investments Commission (ASIC) communicating its position in relation to the proposed order that ASIC reinstate 1160 Glen Huntly Road Pty Ltd, the fourteenth respondent in NSD 616 of 2021, pursuant to s 601AH of the Corporations Act 2001 (Cth). 1160 Glen Huntly Road was deregistered on 14 January 2024 under s 601AB of the Corporations Act for non-payment of fees. Westpac was not notified of the impending deregistration. As at 12 March 2025, ASIC had requested further information in order to determine its position, and Westpac was in dialogue with ASIC.

11    On 17 April 2025, in a letter from ASIC to Westpac, ASIC confirmed that it did not oppose the reinstatement application and would not attend the hearing of the matter, subject to no order for costs being sought against ASIC.

12    On 22 April 2025, Westpac informed the Court that ASIC did not oppose the proposed reinstatement of 1160 Glen Huntly Road and accordingly, Westpac sought leave for the proposed orders to be determined on the papers and to be excused from the hearing on 20 May 2025. Accordingly, the reinstatement application and the orders for final relief were determined on the papers.

13    I made orders reinstating 1160 Glen Huntly Road on 20 May 2025, which are the subject of short separate reasons: Westpac Banking Corporation v Forum Finance Pty Limited (in liq) (Reinstatement) [2025] FCA 520.

14    In the interim, and after service of the relevant materials, including the Westpac Proposed Orders, the two active individual respondents to the Westpac Proceeding ceased to be represented in the proceeding. On 20 March 2025, Aptum Legal, the solicitors for Mr Tesoriero, filed a notice of ceasing to act in the Westpac Proceeding. On 10 April 2025, Francom Legal, the solicitors for Anthony Bouchahine, filed a notice of ceasing to act in the Westpac Proceeding. Mr Tesoriero and Mr Bouchahine are not parties to the other Financier Proceedings.

SMBC

15    The applicant in NSD 681 of 2021, SMBC Leasing and Finance, Inc., served its proposed orders on 10 February 2025 (SMBC Proposed Orders).

16    SMBC did not file any new evidence in support of the SMBC Proposed Orders.

17    SMBC filed submissions in support of the SMBC Proposed Orders on 25 February 2025.

18    On 26 February 2025, SMBC advised that it had not received notification of opposition from any active party to the SMBC Proposed Orders, with the exception of points of clarification requested by the Liquidators which were then addressed in its written submissions. SMBC sought leave to have the SMBC Proposed Orders determined on the papers and to be excused from the hearing on 20 May 2025. I granted that leave.

19    After orders were made on 21 May 2025, SMBC sought a variation of the orders in one respect and provided submissions in support of that variation. I will address the variation below. For present purposes, it suffices to note that Westpac did not wish to be heard against the variation of the order and Societe Generale had no standing on that issue. The orders at that stage had been made, but not entered pending authentication in accordance with r 39.32(3) of the Federal Court Rules 2011 (Cth). On 23 May 2025, I made orders varying the orders nunc pro tunc in accordance with r 39.04 of the Rules. On 4 June 2025, I made further orders varying the orders nunc pro tunc to rectify an internal cross-referencing error.

Societe Generale

20    The applicant in NSD 642 of 2021, Societe Generale, served its proposed orders on 7 February 2025 (Societe Generale Proposed Orders). Societe Generale filed supporting evidence on 13 February 2025. Societe Generale sent a revised copy of the Societe Generale Proposed Orders on 25 February 2025 which included a notation to the effect that Societe Generale would not seek to prove costs in the liquidation of Forum Finance and FGFS (the first and third respondents respectively in NSD 642 of 2021).

21    Societe Generale filed submissions in support of the Societe Generale Proposed Orders on 21 February 2025.

22    On 25 February 2025, Societe Generale advised that it had not received notice of any opposition to the Societe Generale Proposed Orders. Accordingly, Societe Generale sought leave to have the Societe Generale Proposed Orders determined on the papers and to be excused from the hearing on 20 May 2025. I granted that leave.

EVIDENCE

Westpac

23    In addition to the evidence Westpac relied on at trial (which is set out at LJ [206]-[236]), Westpac relied on:

(1)    the affidavit of Caitlin Maria Murray sworn on 12 February 2025 (Murray Affidavit 1) and Exhibit CMM-33 to that affidavit; and

(2)    the affidavit of Caitlin Maria Murray sworn on 2 April 2025 (Murray Affidavit 2) and Exhibit CMM-34 to that affidavit.

24    Murray Affidavit 1 and Exhibit CMM-33 pertain generally to the status of assets, real property and funds the subject of the Westpac Proposed Orders and a schedule calculating interest on the amounts claimed from each of the respondents.

25    Murray Affidavit 2 and Exhibit CMM-34 were filed in support of paragraph 107 of the Westpac Proposed Orders which is directed to the reinstatement of 1160 Glen Huntly Road.

26    Westpac also sought leave to rely on the affidavit of Jason Preston affirmed 3 December 2024 (Preston Affidavit) and Exhibit JP-20 to that affidavit, filed in the Distribution Proceeding. The Preston Affidavit deposes to, among other things, the current financial position and assets of certain of the respondents that are in liquidation. Notice of Westpac’s intention to rely on this affidavit was communicated to all active parties. I granted leave to rely on the Preston Affidavit and its exhibit in the present application.

SMBC

27    In addition to the evidence SMBC relied on at trial (which is set out at LJ [232], [235] and [237]-[244]), the SMBC Proposed Orders include references to paragraphs in Murray Affidavit 1 and pages of Exhibit CMM-33, filed by Westpac. SMBC otherwise did not file any additional evidence in support of the SMBC Proposed Orders.

Societe Generale

28    In addition to the evidence Societe Generale relied on at trial (which is set out in the Liability Judgment at [247]-[254]), Societe Generale relied on the affidavit of Ian Timothy Bolster sworn on 13 February 2025 (Bolster Affidavit) and Exhibits ITB-38 and ITB-39 to that affidavit.

29    Mr Bolster, the solicitor on record for Societe Generale, deposed to the Liquidators’ application in the related Distribution Proceeding for the proposed distribution of funds under their control, which Societe Generale submitted was relevant to the Court’s discretion to the grant of the proprietary relief that it sought.

CONSIDERATION

30    As mentioned at the outset, final relief in each of the proceedings has been determined on the papers there being no opposition to relief sought in each proceeding following on the determination of liability. The Financiers have not attempted to engage between themselves as to the appropriateness of the relief to be granted to each of them as a result of the determination of liability and the factual findings made. The Financiers adopted a pragmatic approach to tracing across many transactions to entities within and outside of the Forum group of companies. They proceeded on the basis that where stolen funds from one or more of the Financiers can be traced to a recipient bank account, that money will be treated on a pro rata basis between the relevant Financiers and not by adopting a “first in first out” approach in accordance with Clayton’s case (Devaynes v Noble (1816) 35 ER 781). The Liquidators’ tracing analysis identifies the respective proportions of Financier funding that each respondent received and the Liquidators have presaged that, subject to obtaining the judicial advice that they would be justified in doing so, they intend to distribute the remaining funds rateably among the respective Financiers according to the respective amount of stolen funds traced to each asset pool. In the Distribution Judgment I accepted that the Liquidators would be justified in proceeding on this basis. There was no opposition to this course. The Liquidators submitted, and the Financiers accepted, that to undertake a more granular analysis applying a first in first out approach would incur undue time and expense, be unlikely to materially alter the distribution and would come at the cost of eroding the funds available for distribution.

31    I will address the final relief sought in the Financier Proceedings in the following order. First, I will address the application of principles that are common to the determination of the relief in each of the proceedings. I will then move to address in turn the relief sought by Societe Generale, SMBC and finally Westpac.

Principles of general application to the determination of relief in all three proceedings

32    In the main, the relevant legal principles have been addressed in the Liability Judgment and/or the Distribution Judgment. I will not repeat those principles here but will instead reference where they are addressed in the Liability Judgment and the Distribution Judgment. To the extent not already addressed in the Liability Judgment and the Distribution Judgment, I have summarised additional principles relevant to the specific categories of relief sought by the Financiers in these reasons.

Recipient trust, knowing receipt and knowing assistance

33    The legal principles in relation to the recipient trust claims, the knowing receipt claims and the knowing assistance claims are addressed in Parts J.2.1 to J.2.3 of the Liability Judgment. The principles in Black v Freedman in relation to the imposition of a constructive are addressed at LJ [1119]-[1129] and DJ [110]-[115].

Tracing

34    The legal principles in relation to tracing are addressed at LJ [1127] and DJ [206]-[222].

35    The possibility that the Financiers’ funds received by the respondents were applied for purposes other than those outlined by the Financiers could not be excluded on the evidence, however, it is well established that in a context such as the present, it is necessary to take a sensible robust approach to fact finding. In doing so, it is appropriate to give full effect to the presumptions that arise against a wrongdoer: Toksoz v Westpac Banking Corporation [2012] NSWCA 199; 289 ALR 577 at [9] (Allsop ACJ, with whom Hoeben JA and Sackville AJA agreed). Where the wrongdoer’s money is mixed with the money of an innocent claimant, the claimant has a flexible choice in, for example, treating dissipated funds as the wrongdoer’s money: Heperu Pty Ltd v Belle [2009] NSWCA 252; 76 NSWLR 230 at [116] (Allsop P), cited at LJ [1127]. Similar principles apply to the volunteer recipient of stolen money, as the volunteer can be in no better position than the wrongdoer: Sze Tu v Lowe [2014] NSWCA 462; 89 NSWLR 317 at [457]-[460].

36    Relevantly, the Financiers sought declarations of trust over specified assets, or the residual proceeds of the sale of those assets, into which their stolen funds have been traced. I was satisfied that it was appropriate to make those declarations, which included declarations of trust in respect of specific assets, or the proceeds of sale of such assets, where the use of stolen funds from one or more of the Financiers had been established in the tracing evidence. By way of illustration, taking Westpac as an example, the types of assets in which Westpac asserts a beneficial interest include:

(1)    assets purchased on Mr Papas’ or Mr Tesoriero’s behalf, being the Grady White Freedom speedboat and the Bel Air and the Big Boss vehicles;

(2)    real property registered in the name of a respondent funded in part with funds stolen from Westpac such as the sum of approximately $1,316,753 held on trust for WBC used for the purchase, maintenance, and improvement of the Atherton Road Property; and

(3)    assets the subject of transactions funded by FGFS using funds stolen from Westpac, such as:

(a)    the sum of approximately $3,075,883 held on trust for WBC used by FGFS to pay for the purchase of shares in Autonomous Energy Pty Ltd by Iugis Investments (Autonomous Energy Transaction): LJ [857]-[859];

(b)    the sum of $2,035,800 held on trust for WBC used by FGFS to acquire Transition Print Pty Ltd (Transition Print Transaction).

Tracing into assets which have increased in value

37    The principles which apply where stolen funds together with loan money from third-party lenders have been applied towards real properties secured by mortgages over the property purchased, in circumstances where the property the subject of the security was later sold at an increased value, are addressed in the Distribution Judgment at DJ [214]-[222]. I accepted that as victims of the fraud, applying the principles set out in the Distribution Judgment to which I have referred, the Financiers are entitled to trace into the whole of the increase in value of the relevant assets. I made orders accordingly.

Equitable subrogation

38    The principles in relation to equitable subrogation, including in the context of misappropriated funds being traced into the payment of secured debts over properties, are addressed in the Distribution Judgment at DJ [117]-[141]. It bears emphasis in the present context that subrogation is available as a remedy where the circumstances and conduct of the parties is such that it would be unconscionable for the defendant to deny the plaintiff’s right to subrogate: Bofinger v Kingsway Group Ltd [2009] HCA 44; 239 CLR 269 at [94] (Gummow, Hayne, Heydon, Kiefel and Bell JJ); Re Trivan Pty Ltd (1996) 134 FLR 368 at 371-372 (Young J). Australian law has rejected the notion introduced by Millett LJ in Boscawen v Bajwa [1996] 1 WLR 328; [1995] 4 All ER 769 that the equitable doctrine of subrogation should be seen in terms of restitution and unjust enrichment: see discussion at DJ [134]-[139].

39    By reference to those principles, I made declarations in the Westpac Proceeding and the SMBC Proceeding that recognised that these Financiers were entitled to exercise an equitable right of subrogation in relation to properties (or the proceeds of sale of such properties) where their respective stolen funds were used to discharge secured debts over those properties.

40    I interpolate to note that after I made orders on 21 May 2025, SMBC successfully applied to have the orders varied to include a further declaration recognising subrogation rights that were additional to those it had originally sought in its proposed orders. I acceded to the request to vary the orders in this way because I was satisfied that to do so was consistent with and justified by reference to the evidence and the findings made in and the principles identified in the Liability Judgment, or otherwise in these reasons. For this reason, on 23 May 2025, I varied the orders made in the SMBC Proceeding nunc pro tunc to include an order which recognised that in relation to 6 Bulkara Street, SMBC is subrogated to the rights of NAB as registered mortgagee in respect of any part of the funds, or traceable proceeds of funds, paid by SMBC that was used in discharge of the secured debt to NAB: order 101(c).

Improvement claims

41    SMBC and Westpac framed their proposed declarations in respect of some of the property-owning entities by reference to the concept of improvement claims: see also DJ [214]-[222] which is addressed to tracing into assets that have increased in value. SMBC sought declarations in respect of its beneficial interest in certain real property and the proceeds of sale of that real property by reference to “its contributions to the acquisition, maintenance and development of that property.” Westpac sought declarations framed by reference to contributions to the “purchase, maintenance and improvement” of certain property. In framing the declarations in this specific way, SMBC and Westpac relied on the principle that a beneficiary is entitled to a beneficial interest in the property (and the proceeds of its sale), where their trust property can be traced as contributing to the acquisition, maintenance and development of that property: Foskett v McKeown [2001] 1 AC 102 at 131 (Lord Millett); Heydon JD and Leeming MJ, Jacobs’ Law of Trusts in Australia (8th ed, LexisNexis Butterworths, 2016) at [27-09(5)]; Smith LD, The Law of Tracing (Clarendon Press, 1997) at pp 352-353. Applying these principles, I made orders that recognised that SMBC and Westpac had a beneficial interest in the properties (and the associated proceeds of sale) which reflected their respective contributions to the acquisition, maintenance and development of those properties.

Equitable compensation

42    The object of equitable compensation is to restore persons who have suffered loss to the position in which they would have been if there had been no breach of the equitable obligation: Nocton v Lord Ashburton [1914] AC 932 at 952 (Viscount Haldane LC); O’Halloran v RT Thomas & Family Pty Ltd (1998) 45 NSWLR 262 at 272 (Spigelman CJ, Priestley and Meagher JJA agreeing). Compensation is ordinarily calculated by reference to the detriment suffered by the applicant and is not fettered by common law principles: Nicholls v Michael Wilson & Partners Ltd [2012] NSWCA 383 at [171] (Sackville AJA, Meagher and Barrett JJA agreeing).

Alternative or inconsistent remedies and double recovery

43    The Financiers submit, and I accept that, their pursuit of proprietary and personal relief does not give rise to alternative and inconsistent remedies, such that they would be required to elect between them. The proprietary and personal remedies sought in these proceedings are properly described as cumulative, such that the Financiers are entitled to obtain and enforce judgment for both, subject to the principle against double recovery: Tang Man Sit v Capacious Investments Ltd [1996] 1 AC 514 at 520-522 (Lord Nicholls), cited with approval in Baxter v Obacelo Pty Ltd [2001] HCA 66; 205 CLR 635 at [39] (Gleeson CJ and Callinan J).

44    The respondents’ personal obligations as trustees pursuant to the imposition of the Black v Freedman trusts are not inconsistent with the Financiers’ claims to an equitable charge against the traceable proceeds of their misappropriated funds: Director of Serious Fraud Office v Lexi Holdings plc [2009] QB 376; [2008] EWCA Crim 1443 at [39]-[40] (Keene LJ), citing Tang Man Sit at 522 and Foskett v McKeown. The charge is a cumulative remedy in aid of the equitable in personam claim, not an alternative remedy.

45    In PSAL Pty Ltd v Raja [2016] WASC 295 at [101]-[104], Pritchard J regarded a proprietary claim to the proceeds of sale of land as not inconsistent with an award of damages such that the plaintiff had to elect between them. The proprietary claim was considered an exercise in tracing property to which the plaintiff was entitled as equitable owner, whereas the damages claim compensated the plaintiff for damage suffered.

46    In Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; 200 FCR 296, the Full Court considered that an order for an account of profits under s 1317H of the Corporations Act and an equitable liability to account for profits obtained in breach of fiduciary duty were cumulative remedies. The Full Court recognised that although the profits recoverable in each claim might considerably or wholly overlap, the claims had independent areas of operation (based on different principles of attribution and causation) such that the orders each have their own work to do (at [641]):

In consequence to the extent that each of the orders may by his Honour have areas of independent operation (differing principles of attribution/causation under the Corporations Act and in equity may account for this), the orders each have their own work to do. The orders to that extent are complementary. However, to the extent each order would sweep up profits which would also be caught by the other, they cannot be enforced so as to produce double recovery: Baxter v Obacelo Pty Ltd (2001) 205 CLR 635 at [39]. While s 185 countenances cumulative remedies, it does not envisage double recovery: cf Re HIH Insurance; ASIC v Adler [[2002] NSWSC 171; 168 FLR 253] at [116]-[118].

47    In making orders for both proprietary relief and personal relief, I was satisfied that there was no inconsistency between the two such that the Financiers would be required to elect between them. Each remedy has its own work to do. The personal relief and the proprietary relief granted against the respondents is properly regarded as being cumulative, with the relevant constraint being that the orders cannot be enforced so as to produce double recovery or overcompensation: Keane P, Estoppel by conduct and election (3rd ed, Sweet & Maxwell, 2023) at [14-047].

Costs

48    The Court has a broad discretion to award costs, including indemnity costs, under s 43 of the FCA Act. When exercising the discretion, the Court must take into account the overarching principles in s 37M of the FCA Act and the application of those principles to the manner in which the proceedings are conducted pursuant to ss 37N(1) and (4): see Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union (No 4) [2018] FCA 684 at [95]-[115] (Middleton J); see also LFDB v SM (No 2) [2017] FCAFC 207 at [7] (Besanko, Jagot, and Lee JJ).

49    An order for indemnity costs is said to require some “special or unusual feature”: Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited (No 2) [2017] FCAFC 116 at [5] (Jagot, Yates and Murphy JJ), citing Cirillo v Consolidated Press Property Ltd (formerly known as Citicorp Australia Ltd) (No 2) [2007] FCA 179 at [3] (Finn J). The Full Court in Melbourne City Investments summarised the circumstances in which an order for indemnity costs might be made (at [5]):

Indemnity costs are not punitive but are designed for “compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs”: Hamod v New South Wales (2002) 188 ALR 659 at 665 (Gray J, with whom Carr and Goldberg JJ agreed). Such circumstances may include where allegations are made “which ought never to have been made”, where the case is “unduly prolonged by groundless contentions” (Ragata Developments Pty Ltd v Westpac Banking Corporation [1993] FCA 115 at [15], [17] (Davies J)), and where “the applicant, properly advised, should have known that he had no chance of success” (Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401 (Woodward J)) or “persists in what should on proper consideration be seen to be a hopeless case” (J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) (1993) 46 IR 301 at 303 (French J)).

50    In Neville’s Bus Service Pty Ltd v Pitcher Partners Consulting Pty Ltd (No 2) [2019] FCA 198; 369 ALR 185 at [15]-[16], O’Callaghan J concluded that in circumstances where, amongst other things, the costs applicant was the victim of fraud, the award of indemnity costs was “close to irresistible”. A similar approach to the award of indemnity costs in a fraud setting was adopted in Cassar (in her capacity as administrator and trustee of the estate of the late Cassar) v Cassar [2024] VSC 537 at [2]-[3] (Gorton J) (Cassar v Cassar) and Grant v Grant [2021] NSWSC 1 at [8] (Slattery J).

51    It would be unreasonable for the successful party to be subjected to the expenditure of costs in circumstances where the losing party properly advised should have known they had no chance of success: Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 5) [2021] FCA 246; 151 ACSR 26 at [10]-[11] (Wigney J) (ACCC v Colgate); Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd [1988] FCA 364; 81 ALR 397 at 401 [21] (Woodward J); De Alwis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 77 at [7] (Tamberlin, RD Nicholson and Emmett JJ). In Aucare Dairy (Aust) Pty Ltd v Huang (No 4) [2019] FCA 1187 at [7], Davies J found that it was unreasonable for the respondents to have subjected the applicants to the expenditure for costs of litigation which was commenced as the result of the respondents’ dishonesty and fraud.

52    In considering whether to award costs on an indemnity basis, there is a need to exercise care to avoid hindsight reasoning: Kingsheath Club of the Clubs Limited (in liq) [2003] FCA 1589 at [5] (Goldberg J).

53    I concluded that the applications for indemnity costs made by Societe Generale and Westpac should be granted. The circumstances warranted the making of an order for indemnity costs to adequately compensate Societe Generale and Westpac for the costs incurred in bringing the proceedings in which they succeeded completely in respect of the claims they ultimately pressed: ACCC v Colgate at [6]-[11]; Cappello v Homebuilding Pty Ltd [2023] NSWCA 109 at [47]-[48] (Mitchelmore JA, Meagher JA and Simpson AJA agreeing); Neville’s Bus Service at [15] (O’Callaghan J).

54    SMBC sought costs orders on the ordinary basis – it did not apply for indemnity costs. Although SMBC did not expose its reasons for taking that course, it may have been in recognition of the difficulty attendant on obtaining satisfaction of any costs orders, whether made on the ordinary or indemnity basis. Costs orders made in this proceeding will not be provable as debts in the liquidations of the respondents in so far as those companies were already in liquidation because the costs orders were not made prior to the commencement of the relevant companies being placed in liquidation: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; 234 CLR 52 at [35]-[37] (Gleeson CJ, Gummow, Hayne and Crennan JJ); Central Queensland Development Corporation Pty Ltd v Sunstruct Pty Ltd [2015] FCAFC 63; 231 FCR 17 at [70]-[73] (Gilmour J, Besanko and Rangiah JJ agreeing).

55    Against that background of the applicable principles. I now turn to the orders in respect of final relief sought by Societe Generale.

Societe Generale

Outline of relief sought

56    There are three components to the relief sought by Societe Generale:

(1)    proprietary relief;

(2)    a monetary judgment; and

(3)    an indemnity costs order, as taxed or agreed.

Key findings

57    Societe Generale’s claim is, relative to the claims of Westpac and SMBC, comparatively confined in terms of the number of respondents against which relief is sought, the total amount of stolen funds (approximately $8,444,978) and the period during which the relevant events occurred.

58    It is convenient to first recall by way of brief summary only, and not in substitution for the detailed findings in the Liability Judgment, the following key aspects of the Liability Judgment in relation to the claims brought by Societe Generale:

(1)    Societe Generale claimed against Forum Finance, Mr Papas and FGFS: LJ [204];

(2)    The fraud alleged by Societe Generale against each of these respondents was established: LJ [318], [1111];

(3)    Mr Papas was found to have actual knowledge: LJ [915]. He was found to be the architect of the fraud perpetrated against Societe Generale: LJ [325]. His knowledge was attributed to the companies of which he was a director, which relevantly included Forum Finance and FGFS: LJ [130], [331], [1137], [1205]-[1207];

(4)    Societe Generale was found to be entitled to relief against Mr Papas, Forum Finance and FGFS which each received funds and financial benefits from, and knew and participated in, the fraudulent scheme: LJ [328]-[331], [1137], [1205]-[1207];

(5)    The proceeds obtained by fraud from Societe Generale comprised:

(a)    a payment of $4,128,757 on 9 March 2021 (the First SG Payment; see LJ [1091]-[1096]);

(b)    a payment of $2,299,539 on 7 May 2021 (the Second SG Payment; see LJ [1098]); and

(c)    a payment of $2,558,902 on 24 May 2021 (see LJ [1099]);

(6)    Each of the three payments was initially received by Forum Finance in the Forum Finance Account and then subsequently transferred to FGFS in the FGFS Account: LJ [950], [952], [1109], [1205]-[1207];

(7)    FGFS thereafter transferred the funds stolen from Societe Generale to Source Accounts, accounts other than the ‘Source Accounts’ held by the Forum Group, and to external or third parties: LJ [953], [1207]. The path of the funds stolen from Societe Generale was traced in the unchallenged evidence of the Liquidators: see Annexure I, LJ [19], [120], [150], [942], [962];

(8)    Upon receipt of Societe Generale’s stolen funds, Forum Finance held those funds on trust for Societe Generale and was obliged to account for the funds, including those paid away: LJ [1205];

(9)    Similarly, upon receipt of Societe Generale’s stolen funds, FGFS held those funds on trust for Societe Generale, and was also obliged to account for those funds, including those paid away. To the extent that conclusion is not expressly stated in the Liability Judgment, it is implicit in the application of the relevant principles identified at LJ [1120]-[1129] to the facts as found including the findings expressed at LJ [1206]-[1207]. To remove any doubt in this regard, I make an express finding that FGFS was obliged to account for the funds stolen from Societe Generale, including those funds it paid away;

(10)    On each of 31 March, 30 April and 28 May 2021, Societe Generale received payments of $84,000 (together totalling $252,000) ostensibly as payment of receivables due from customers in accordance with the Master Agreement related to the First SG Payment. On 28 May 2021, Societe Generale received a further ostensible receivables payment of $46,800 in connection with the Second SG Payment. These payments, described in the Liability Judgment as cloaking payments, were made to give legitimacy to the transactions that had been completed with Societe Generale and were intended to induce Societe Generale to make further payments. There were no further cloaking payments to Societe Generale thereafter: LJ [1110]; and

(11)    Societe Generale first discovered the fraud in about June 2021: LJ [66]-[69].

Determination

59    I was satisfied that it was appropriate to make orders in the form sought in the Societe Generale Proposed Orders. To grant that relief was consistent with and reflected the factual findings I made in the Liability Judgment and the application of the relevant legal principles which I have addressed above and in the Liability Judgment (as supplemented by the Distribution Judgment). The relief sought by Societe Generale was not opposed by the Liquidators of Forum Finance and FGFS, who did not file or serve any submissions in opposition to the relief claimed. Mr Papas did not appear at the hearing on liability which proceeded in his absence, there being an extant warrant for his arrest on a charge of contempt: LJ [5], [27]-[29]. Mr Papas was served with the Societe Generale Proposed Orders and the evidence relied on in support by Societe Generale – being the Bolster Affidavit together with a letter of service from Allens dated 4 December 2024 (Annexure ITB-38) and the interlocutory process filed on 3 December 2024 (Annexure ITB-39). Mr Papas did not seek to be heard against the grant of relief. Societe Generale noted in their submissions that it had received no communication from Mr Papas.

60    I will address each of the categories of relief sought by Societe Generale in turn. As I have mentioned, there was no inconsistency between the personal and proprietary relief sought by Societe Generale: see applicable principles at paragraphs [43]-[47] above.

Proprietary Relief

61    Societe Generale sought a declaration against Forum Finance and FGFS in respect of their respective receipts of funds stolen from Societe Generale (see LJ [1094], [1098]-[1099]). Societe Generale submitted that the relief sought in the Distribution Proceeding was relevant to the exercise of discretion in relation to the grant of the proprietary relief sought by Societe Generale in the present application. Societe Generale also asked the Court to formally note the Court’s findings as to the tracing of funds stolen from Societe Generale to certain entities that, although not respondents in the Societe Generale Proceeding, are entities to which the Liquidators have also been appointed. I acceded to making that notation, even though it may not have been strictly necessary to do so when one has regard to the findings of fact made in the Liability Judgment on the basis of the detailed tracing evidence. Societe Generale, having not proceeded against entities other than Forum Finance and FGFS, was not entitled to obtain declarations against entities which it had not joined to its proceeding, and did not seek to do so.

62    For completeness, I note that in its closing submissions, Societe Generale made plain that it did not seek a declaration that Mr Papas holds any sum or any traceable proceeds from those funds on trust for it. Societe Generale did not press for declarations to this effect because Societe Generale maintains that Mr Papas took steps to ensure that any amount he directly received himself was de minimis.

63    I was satisfied that I should grant proprietary relief substantially in the form sought by Societe Generale for the following reasons.

64    Each of Forum Finance and FGFS received the funds stolen from Societe Generale with knowledge of the fraud. Each held those stolen funds on trust for Societe Generale from the time they each received the relevant funds. Each is liable to account to Societe Generale for the funds stolen from Societe Generale, including any traceable property therefrom. On that basis, I have taken the reference in Prayer 1(b) of Societe Generale Proposed Orders to the second respondent (being Mr Papas) to be intended to be a reference to the third respondent (FGFS). Allowing for this correction, I was satisfied it was appropriate to make a declaration in the terms of Prayer 1 of the Societe Generale Proposed Orders.

65    Making such a declaration has practical utility. It may be a valuable form of relief available to Societe Generale in circumstances where a monetary judgment in favour of Societe Generale is unlikely to be satisfied, given the quantum and the present context, which includes that Forum Finance and FGFS are in liquidation and that Mr Papas has absconded. Societe Generale further submitted that the declaration also has utility in circumstances where not all recipients of Societe Generale’s stolen funds are under the control of Liquidators, and accordingly, there is a possibility that at a future time Societe Generale’s stolen funds may be returned to Forum Finance and/or FGFS, consistent with the obligation to reconstitute the trust. That further submission is perhaps informed by a dollop of optimism, but it cannot be wholly discounted.

66    In granting the declaratory relief sought, I included a formal notation in the orders that reflected the findings I made in relation to the four cloaking payments, that presented ostensibly as the payment of receivables, but which in reality must be accounted for as partial repayments of the First SG Payment and the Second SG Payment.

67    Appendix A of the Societe Generale Proposed Orders is a table relied on by Societe Generale in support of an additional notation to the final orders in the Societe Generale Proceeding. The relevant substance of that table is reproduced here:

Table 1: Societe Generale Notation Entities

68    The table addresses 14 entities which were not joined as respondents to the Societe Generale Proceeding, but which were otherwise party to the SMBC and/or Westpac Proceedings (the Notation Entities). The Notation Entities identified in Table 1 are all companies to which Mr Preston and Mr Ireland have been appointed as liquidators: LJ [141] and [939]. Mr Preston and Mr Ireland are also the liquidators of Forum Finance and FGFS. The information included in Table 1 is derived from, and relevantly replicates, Annexure I to the Liability Judgment.

69    Annexure I summarises the Liquidators’ evidence as to the proportion of the funds held by each respondent which were derived from each Financier and the total amount of tainted funds received from all the Financiers: LJ [120]. Annexure I is a summary drawn from the detailed analysis undertaken by the Liquidators deposed to by Mr Preston and which was admitted at the hearing on liability pursuant to s 50 of the Evidence Act 1995 (Cth).

70    Bearing in mind that the hearing of the three Financier Proceedings was concurrent and the evidence in each proceeding stood as evidence in each of the other proceedings (LJ [49]), the tracing evidence relied upon for the purpose of the hearing on liability established that the funds stolen from Societe Generale were received by or for the benefit of each of the Notation Entities in the amounts listed in Table 1.

71    Relatedly, in the Distribution Proceeding, the Liquidators relied on the tracing analysis summarised in Annexure I in support of a direction that they would be acting reasonably in distributing the assets into which the Financiers’ stolen funds have been traced in the manner which they propose. In the Liquidators’ proposed distribution, they have been guided by their tracing analysis without having regard to the composition of the Societe Generale Proceeding.

72    Applying the principles I have identified in the Liability Judgment, including in relation to the principles in Black v Freedman at LJ [1119]-[1129], to the findings of fact that I have made, I was satisfied that funds traced from the proceeds received by each of Forum Finance and FGFS on trust for Societe Generale have been paid to or on behalf of the Notation Entities as set out in Table 1 (which is based on Annexure I of Liability Judgment).

73    Notwithstanding that Societe Generale did not claim against the Notation Entities, the relevant tracing of Societe Generale’s stolen funds to the Notation Entities was established on the evidence. The notation proposed by Societe Generale is both consistent with the tenor of the Liability Judgment and has practical utility given that the Liquidators are also the liquidators of Forum Finance and FGFS and the applicants in the Distribution Proceeding. The Notation Entities were otherwise parties to the SMBC and/or Westpac Proceedings (which, as I have noted, were heard jointly with the Societe Generale Proceeding). They are under the control of the same liquidators as Forum Finance and FGFS (who were respondents in the Societe Generale Proceeding). Through those Liquidators, each of the Notation Entities is taken to be on notice of Societe Generale’s Proposed Orders. No party to any of the three Financier Proceedings, including the liquidators of Notation Entities, has sought to be heard in opposition to the inclusion of the notation in the final orders disposing of the Societe Generale Proceeding.

74    Taking all of the above into account, I included a notation to the effect sought by Societe Generale in the orders I made finalising the Societe Generale Proceeding.

Monetary Relief

75    Societe Generale sought equitable compensation from Forum Finance, FGFS and Mr Papas for an amount of $8,688,398, plus interest pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) up to and including 21 May 2025, being the date on which final orders were made and took effect pursuant to r 39.01 of the Rules. The monetary relief sought by Societe Generale comprises:

(1)    the full amount of Societe Generale’s stolen funds less the amounts repaid in the form of the cloaking payments that I have referred to above; and

(2)    statutory interest on the amount of Societe Generale’s stolen funds from time to time,

giving credit for the said cloaking payments.

76    I accepted that on the findings made and applying the principles identified in the Liability Judgment (LJ [1125]-[1127] and [1134]-[1137]), Societe Generale has established it is entitled to monetary relief in the amount claimed.

77    In relation to the pre-judgment interest, Societe Generale did not ultimately press its alternative claim for pre-judgment interest to be calculated by reference to the steps it had taken to hedge its interest rate exposure. Instead, Societe Generale pressed its claim for pre-judgment interest to be calculated by reference to s 51A of the FCA Act. I was satisfied that it was appropriate to award pre-judgment interest in the sum of approximately $2,312,651 pursuant to s 51A of the FCA Act. Societe Generale is also entitled to post-judgment interest pursuant to s 52 of the FCA Act and r 39.06 of the Rules.

78    For these reasons, I made orders substantially in accordance with Societe Generale’s Proposed Orders (as revised).

Costs

79    Societe Generale sought indemnity costs as taxed or agreed.

80    Societe Generale has been wholly successful in its proceeding. It is entitled to a costs order in its favour with such costs, if not agreed, to be assessed in accordance with the Rules.

81    Applying the principles I have identified at paragraphs [48]-[53] above, I was satisfied that an award of indemnity costs was warranted. My reasons for making an indemnity costs order were as follows.

82    First, Societe Generale’s reliance on Neville’s Bus Service (and relatedly, Cassar v Cassar and Grant v Grant) was apt having regard to the premeditated fraud and elaborate concealment at the heart of these proceedings.

83    Secondly, whilst the Societe Generale Proceeding was not actively defended by any of the respondents, the respondents did not make any admissions concerning the conduct alleged by Societe Generale which they must have known they had no chance of successfully defending: see paragraph [51] above.

84    I infer that Mr Papas and through him, Forum Finance and FGFS, must have known they had no chance of successfully defending the Societe Generale Proceeding given the nature of the conduct exposed by the evidence. It is sufficient to illustrate this by reference to two stark features of the evidence, although these are illustrative only of many other aspects of the evidence detailed in the Liability Judgment.

85    It was obvious that the veneer created by the myriad of falsified signatures attributed to a large cast of disinterested third parties would shatter upon the barest interrogation. That is what happened when WesTrac, one of the ostensible third-party customers, raised a query with Westpac in an attempt to reconcile a $9.7 million drawdown which Westpac had attributed to WesTrac: LJ [60]. When the house of cards toppled, it came down quickly: see LJ, Part C.2. That it would do so was not unexpected, which brings me to the second aspect of the evidence.

86    Mr Papas’ escape plan is significant: see LJ [446]. The notes made by Mr Papas in around April 2018 demonstrate that before Mr Papas and the companies he controlled commenced dealing with the Financiers, he planned in the event his fraud was discovered to effect an “overseas escape”. That is what he did: see LJ [14], [325], and Part I.18.2.7. I infer that Mr Papas (and through him Forum Finance and FGFS) knew that they would not be able to successfully defend the Societe Generale Proceeding.

87    Thirdly, as a consequence of the respondents’ conduct, Societe Generale was placed in a position in which it was required to vindicate its rights by prosecuting its proceeding through to a final hearing and judgment ⸻ it had to prove its claims.

88    Fourthly, having regard to the above matters, in circumstances where Societe Generale was a victim of fraud, the respondents’ conduct of the proceeding was such that I was satisfied that indemnity costs should be awarded to adequately compensate Societe Generale for its costs in bringing the proceeding in which it succeeded: see paragraph [53] above. I do not suggest that the Liquidators personally acted improperly in the way they conducted the litigation in their capacity as the liquidators of Forum Finance and FGFS. Nevertheless, the fact remains that it was the conduct of Forum Finance and FGFS that initiated and facilitated the fraud which in turn gave rise to the need for the litigation. In order to vindicate its claims arising as a consequence of the fraud, Societe Generale was required to litigate. Mr Papas’ flight and the raft of independent evidence that demonstrated that the critical transaction and related documents were the product of fraud presented insurmountable obstacles to Mr Papas, Forum Finance and FGFS successfully resisting Societe Generale’s claims. I accepted Societe Generale’s submission that the obligation of Mr Papas, Forum Finance and FGFS to return the funds stolen from Societe Generale was properly described as irresistible. I find that this would, or should, have been appreciated by them. That Mr Papas fled the jurisdiction very shortly after Westpac first started raising questions about the arrangements, suggests that he did in fact appreciate that the conduct was indefensible. I was satisfied that Societe Generale was entitled to have its costs assessed on an indemnity basis to enable it to recover its costs in so far as the costs were reasonably incurred.

89    As a final matter, I note that although Societe Generale pressed for costs orders, it will not seek to prove its claim for costs in the liquidations of Forum Finance and FGFS.

SMBC

Outline of relief sought

90    SMBC sought proprietary relief in the form of declarations and orders and personal relief in the form of monetary judgments against each of the extant respondents in the SMBC Proceeding, except those against which SMBC sought to have its claim discontinued or dismissed. The ninth and fifteenth respondents (being Imagetec FS and Iugis Holdings UK) fell in that latter category: LJ [40], [184]. SMBC sought, and I made, orders that the proceeding be dismissed or discontinued against these respondents, with no order as to costs.

91    SMBC’s approach in relation to the framing of its final relief was to seek declarations articulating the existence of its proprietary rights and the date on which those rights arose. SMBC did not seek precise declarations as to the dollar sum or percentage share to which SMBC is entitled in respect of the discrete asset pools held by the respondents. SMBC accepted in its submissions that the finer details of this nature fell to be determined in the Distribution Proceeding together with questions of priority between competing interests, informed by the relief given in these proceedings.

92    By way of overview, SMBC made the following submissions in relation to the categories of final relief it sought.

93    SMBC sought personal relief against each respondent in circumstances where not all its proprietary claims can be met in full and most respondents no longer retain the entirety of the funds stolen from SMBC that they received. In most cases, SMBC sought a judgment sum limited to the amount of SMBC stolen funds received by or on behalf of the respondent. In respect of 6 Bulkara Street, which made a profit from the receipt of SMBC’s stolen funds, SMBC sought an account of profits, calculated by reference to SMBC’s portion of the Financier funding traced to 6 Bulkara Street. In the case of seven respondents (Mr Papas, FGFS, Forum Enviro, Forum Enviro (Aust), FG, Iugis and FGOC), SMBC sought judgment in the sum of approximately $83,993,909, being the entirety of the loss suffered by it as a consequence of Mr Papas’ fraudulent scheme, on the basis of knowing assistance. In the case of Iugis, SMBC limited its knowing assistance claim to the amounts paid out by SMBC under the 2020 MRASA (being approximately $83,993,909), less the cloaking payments paid to SMBC by Forum Enviro (Aust) (being $30,556,390): see LJ [74(3)]. SMBC took this approach on the basis that Iugis was not incorporated until 12 April 2019. In taking this approach, SMBC did not seek to be heard against Westpac’s submission in support of its proposed orders that the liability of a knowing assister can extend to the full amount of the applicant’s loss regardless of the date of the assister’s incorporation: see paragraph [179] below.

94    As mentioned above, in making orders for personal and proprietary relief, I accepted SMBC’s submission that there was no inconsistency between the grant of personal and proprietary relief such that SMBC would be required to elect between the two. I accepted that the remedies were cumulative and the relevant constraint was the prohibition on enforcement that would sound in double recovery or over compensation: see paragraph [47] above.

Key findings

95    By way of summary only, and not in substitution for the detailed findings in the Liability Judgment, the following key aspects of the Liability Judgment provide context for the relief sought by SMBC:

(1)    SMBC claimed against Mr Papas, Forum Enviro, Forum Enviro (Aust), FGFS, the Other Papas-Related Entities (as that term is used in the Liability Judgment: see LJ [171]-[195]) and the Tesoriero Entities (as that term is used in the Liability Judgment: see LJ [161]): LJ [1181];

(2)    The fraud alleged by SMBC was established: LJ [318], [1035], [1184];

(3)    Mr Papas had actual knowledge, and was the architect, of the fraud perpetrated against SMBC, and his knowledge is attributed to the companies in which he was a director with the consequence that SMBC is entitled to relief against Mr Papas and also against the entities related to Mr Papas which had received funds and financial benefits from, and knew and participated in, the fraudulent scheme: LJ [328]-[330], [915], [1185]-[1188], [1192], [1199]-[1200];

(4)    Mr Tesoriero had actual knowledge of the fraud perpetrated against SMBC, and his knowledge is attributed to the companies over which Mr Tesoriero was a director with the consequence that SMBC is entitled to relief against the entities related to Mr Tesoriero which had received funds and financial benefits from, and knew and participated in, the fraudulent scheme: LJ [847], [1183], [1201]-[1202];

(5)    The proceeds obtained by fraud from SMBC comprised payments made by SMBC to Forum Enviro (via Flexirent) under the 2018 MRASA totalling approximately $29,709,714 (LJ [1033]) and payments made by SMBC to Forum Enviro (Aust) under the 2020 MRASA totalling approximately $83,993,909 (LJ [1045]). Forum Enviro and Forum Enviro (Aust) paid the money received from Flexirent and SMBC to companies within the Consolidated Group or companies related to Mr Papas and/or Mr Tesoriero: LJ [1190]. The funds stolen from SMBC were traced in the unchallenged evidence of the Liquidators, including as reflected in Liability Judgment Annexure I;

(6)    Each of the transactions effected in connection with the 2018 MRASA and 2020 MRASA, together with each of the purported equipment leases, were fraudulent: LJ [1035], [1046], [1061], [1076]-[1077], [1080], [1187];

(7)    At the time Forum Enviro and Forum Enviro (Aust) received SMBC’s stolen funds it held those funds on trust for SMBC and was obliged to account for the funds, including those paid away: LJ [330], [1192]-[1196];

(8)    Similarly, at the time FGFS received SMBC’s stolen funds (through Forum Enviro (Aust)) it held those funds on trust for SMBC and was also obliged to account for those funds, including those paid away: LJ [330], [1198]. FGFS received into its bank account $79,900,308 of the money paid by SMBC: LJ [1197];

(9)    Between 30 August 2018 and 28 May 2021, SMBC received cloaking payments totalling $30,556,390 from Forum Enviro (Aust) ostensibly as monthly payments in accordance with the 2018 MRASA and 2020 MRASA: LJ [74(3)]. These payments were made to give legitimacy to the fictitious equipment leases and the offers made on the basis of the equipment leases pursuant to the 2018 MRASA and the 2020 MRASA so that SMBC would continue to advance funds: LJ [115], [1080], [1188]; and

(10)    The fraud was first discovered by SMBC in about July 2021: LJ [64].

Determination

96    I was satisfied that it was appropriate to make orders substantially in the form sought by SMBC in the SMBC Proposed Orders. As with Societe Generale, I was satisfied that to grant relief substantially in the form sought was consistent with and reflected the application of the legal principles addressed in the Liability Judgment (as supplemented by the Distribution Judgment) to the factual findings made in relation to SMBC’s claims. SMBC notified all interested parties and persons of the relief that it sought by way of final orders. No one has sought to be heard in opposition to the making of final orders in the form sought by SMBC.

97    SMBC provided an aide memoire that helpfully cross-referenced the orders it sought against each of the respondents to the relevant paragraphs of the Liability Judgment and where applicable, the additional evidence read on the application for final orders. A copy of this aide memoire is on the Court file as an attachment to the SMBC’s submissions. It is not necessary in these reasons to repeat in relation to each order the relevant portions of the Liability Judgment and the additional evidence that informed the making of the orders which are the subject of these reasons.

98    I will address each of the categories of relief sought in turn.

Declarations in respect of SMBC’s proprietary interests

Receipt of trust property and beneficial interest

99    SMBC sought a declaration in general terms in relation to each of the respondents to the effect that they each received SMBC’s property on trust. The trust arises pursuant to the principles in Black v Freedman which I have addressed at LJ [1119]-[1129] and DJ [110]-[115]. I was satisfied that the grant of proprietary relief in the form of a constructive trust was on the present facts, the appropriate means by which to vindicate SMBC’s rights. It was not suggested that any lesser relief would be adequate to achieve that outcome. I was satisfied that there was utility in making the declarations recognising the existence of SMBC’s equitable interests.

100    Each declaration sought by SMBC included an articulation of the date by which the relevant trust interest arose, being the date on which funds were received. SMBC established an entitlement to a declaration of trust over the funds stolen from SMBC or their traceable proceeds in the hands of the respondents arising pursuant to the principles in Black v Freedman. The declarations sought include that the recipient has held the funds and their traceable proceeds on trust at all times from when the recipient respondent received the funds.

101    In addition, SMBC identified an issue arising in respect of certain landholding entities whose land has been sold and an amount has been realised. The relevant land-owning corporate respondents identified by SMBC were FGFS, 5 Bulkara Street, 6 Bulkara Street, 26 Edmonstone Road, 23 Margaret Street and 64-66 Berkeley Street. Other than FGFS, the landowning respondents were each special purpose vehicles formed by either or both of Mr Papas and Mr Tesoriero to develop the particular real property after which it was named. Mr Bouchahine kept detailed spreadsheets in which he recorded invoices received for and expenses claimed in relation to each property and recurring payments in the nature of interest, or principal and interest, payable on loans taken out to acquire the properties which were secured by mortgages over the properties. The evidence revealed that on some occasions FGFS made payments in respect of the properties directly, whereas on other occasions expenses were paid from the relevant respondent’s own bank account with FGFS transferring funds to those accounts so that they were available for this purpose.

102    I was satisfied that SMBC is entitled to trace into the proceeds of sale of the relevant properties so much of its funds as were received by each of the landholding respondents and that it was appropriate to make the further declaration sought by SMBC against each of these respondents as to SMBC’s beneficial interest in the relevant property and the related proceeds of sale, reflecting SMBC’s contributions to the acquisition, maintenance and development of the property: see principles set out at paragraph [41] above. The evidence tendered at the liability hearing recorded by way of s 50 summary the amounts realised in respect of each property.

103    SMBC’s claim for declarations of this kind is supported by authority. To the extent that SMBC’s funds were used to pay part of the purchase price for the property, it is entitled to trace those funds into the property itself: see paragraphs [34]-[36] above. To the extent its funds were used to meet instalments due under the various mortgages, tracing into the land is possible because the payer is subrogated to the rights of the mortgagee when the loan is ultimately discharged. To the extent that SMBC’s funds were paid to advance the development of the properties, the land will be charged to secure repayment of those sums and SMBC is entitled to trace into the proceeds: see paragraph [41] above.

Subrogation

104    SMBC sought declarations in respect of its rights of subrogation to the extent that its funds were used to pay instalments due under mortgages granted by FGFS, 5 Bulkara Street, 23 Margaret Street and 64-66 Berkeley Street in circumstances where the primary mortgages were ultimately discharged using funds stolen from SMBC.

105    SMBC asserted an equitable right of subrogation limited to the extent to which SMBC’s funds were used to discharge the secured loans of the primary mortgagees whose mortgages were discharged on the sale of each of the properties: see paragraph [42] above.

106    In the present case, SMBC’s funds were impressed with a Black v Freedman trust and were used (including in some cases in combination with other funds) to discharge loans secured over various real properties resulting in a discharge of the relevant mortgages on the sale of the properties. I was satisfied that it was appropriate to adjust the interests of the relevant parties, in this instance being SMBC and the relevant recipient company that sold the property, to avoid the unconscionable result of the recipient company taking the benefit of the inequitable discharge of its liability at the expense of SMBC: see principles set out at DJ [121]-[122]. I was also satisfied that in the present circumstances, the appropriate remedy was to make a declaration recognising that SMBC is entitled to an equitable subrogation, there being no other effective relief available to it in this respect.

Improvement claims

107    Applying the principles identified above in relation to the application of stolen funds towards the acquisition, maintenance and development of real properties, I made orders in the SMBC Proceeding that recognised that SMBC was entitled to have recognised a beneficial interest in the following real properties and the proceeds of their sale which reflected its relevant contribution:

(1)    the Atherton Road Property;

(2)    the 26 Edmondstone Road Property;

(3)    the 5 Bulkara Street Property;

(4)    the 6 Bulkara Street Property;

(5)    the Rozelle Property; and

(6)    the Berkeley Street Property.

Orders for delivery up of assets

108    As against Mr Papas, SMBC sought orders for the delivery up of assets. Orders to the same effect were sought by Westpac. For the reasons I give in relation to Westpac below, I was satisfied that it was appropriate to make orders for delivery up. These orders are necessary in the likely event that Mr Papas does not cooperate in the administration of the execution of the final orders. I made orders accordingly.

Personal relief

Liability for the entirety of SMBC’s loss

109    SMBC sought orders against seven respondents (Mr Papas, FGFS, Forum Enviro, Forum Enviro (Aust), FG, Iugis and FGOC) for the entirety of the loss it suffered as a consequence of Mr Papas’ fraudulent scheme. That loss is approximately $83,147,234, comprised of approximately $29,709,714 that SMBC paid to Forum Enviro via Flexirent, plus approximately $83,993,909 that SMBC paid directly to Forum Enviro (Aust), less approximately $30,556,390 that Forum Enviro (Aust) paid to SMBC in the form of cloaking payments (see LJ [74(3)]).

110    I have cross-referred to where I have addressed the applicable legal principles in relation to recipient trust, knowing receipt and knowing assistance in paragraph [33] above. Applying those principles as relevant to the facts as found, I was satisfied it was appropriate to make orders giving effect to the personal relief sought by SMBC.

111    SMBC’s claim against Mr Papas was made out on the basis that he caused the fraudulent payments to be made: LJ [1188]. The Financiers, including SMBC, were found to be entitled to relief against all of the companies of which he was a director and against which they pressed their claims: LJ [330]. This included FG and FGOC. Mr Papas’ knowledge was attributed to the companies of which he was a director: LJ [331]. Mr Papas knew that Forum Enviro and Forum Enviro (Aust) had no legitimate claim to the money and that the payments away from Forum Enviro and Forum Enviro (Aust) were being made in breach of trust: LJ [1192]. SMBC’s claims against FGFS, Forum Enviro and Forum Enviro (Aust) were made out on the basis that their bank accounts were used as conduits for the movement of SMBC’s funds from the accounts into which they were initially paid to the various respondents who ultimately took the benefit of those funds, and in that way, these respondents enabled the fraudulent scheme to operate: LJ [1195]-[1198]. The use of the relevant bank accounts in this way was demonstrated in the evidence supporting the Liquidators’ tracing analysis: LJ [941]-[951]. SMBC’s claim against FGOC was made out on the basis that as the parent company of Forum Enviro, Forum Enviro (Aust), FG and Iugis, FGOC produced the audited consolidated financial reports for the Forum Group (of which FGFS did not form part), which provided a veneer of financial legitimacy that was integral to the operation of the scheme: LJ [16]-[17].

112    SMBC did not make a knowing assistance claim against Forum Enviro (Aust). SMBC’s claim against Forum Enviro (Aust) was made out on the basis that it acted as a principal in the fraudulent procurement of funds from SMBC. Forum Enviro (Aust) contracted with Flexirent in 2018 and with SMBC in 2020. The Liquidator’s evidence (in this instance, Mr Ireland) demonstrated that the leases allegedly underpinning the SMBC Transactions were fictitious and were not supported by any real assets: LJ [321]. SMBC established that Forum Enviro (Aust) was liable for the whole of the loss of approximately $83,993,909 on the grounds of unlawful means of conspiracy, or alternatively, deceit. Again, that loss and damage is calculated by adding approximately $29,709,714 that SMBC paid to Forum Enviro via Flexirent, plus approximately $83,993,909 that SMBC paid directly to Forum Enviro (Aust), and then deducting $30,556,390 that Forum Enviro (Aust) paid to SMBC.

113    With respect to Iugis, as it was incorporated on 12 April 2019, SMBC limited the knowing assistance claim against it to the amounts paid out by SMBC under the 2020 MRASA, being approximately $83,993,909, less the amounts paid to SMBC by Forum Enviro (Aust), being $30,556,390, for a total of approximately $53,437,519. However, SMBC did not seek to be heard against Westpac’s submission, addressed below, regarding its proposed orders that the liability of a knowing assister can extend to the full amount of the applicant’s loss regardless of the date of incorporation.

Liability for sums received

114    For the balance of the respondents, the judgment sum sought by SMBC was limited to the amount of SMBC funds received by or on behalf of the respondent, as set out in the table below:

Table 2: SMBC Recipient Liability Breakdown

115    I was satisfied that the relief sought by SMBC was appropriate to give effect to each recipient’s liability to account for the relevant trust property upon becoming aware (actually or constructively) that they had received stolen funds.

116    In the case of 6 Bulkara Street, which made a profit from the receipt of SMBC’s funds, SMBC sought an account of profits: see paragraph [93] above. On the Liquidators’ evidence admitted at the liability hearing, the cash balance remaining in 6 Bulkara Street after sale of the property was approximately $9,693,226. SMBC’s pro rata share of that profit corresponds with SMBC’s pro rata share of the total Financier funding traced to 6 Bulkara Street, being 29.92%. On this basis, I was satisfied that judgment should be entered for SMBC against 6 Bulkara Street in the sum of $2,899,799. There is a divergence in the approaches taken in relation to 6 Bulkara Street as between SMBC and Westpac. Westpac have not made a corresponding claim by reference to an account of profits as they instead claim their full loss from 6 Bulkara Street as a knowing assister. I have addressed the respective claims for relief in accordance with the approach taken by each of SMBC and Westpac. In the Distribution Application, neither SMBC nor Westpac sought to be heard against the Liquidators’ proposed distribution of the proceeds of the 6 Bulkara Street Property: see DJ [379]-[383].

Discontinuance and dismissal

117    For completeness, I will record that I made orders giving effect to SMBC’s desire to discontinue or have dismissed the proceeding against a number of the respondents. As mentioned, pursuant to leave granted on 8 February 2023, SMBC discontinued the proceeding against the seventeenth respondent, Iugis Greece. On 21 May 2025, I made an order that the proceeding against Iugis Holdings UK, the fifteenth respondent, be discontinued with no order as to costs. Iugis Holdings UK has been dissolved in the UK. Likewise, on 21 May 2025, I made an order that the proceeding be dismissed against the ninth respondent, Imagetec FS — SMBC did not press its claims against Imagetec FS at the conclusion of the hearing: LJ [184].

Interest

118    SMBC sought, and I made, orders for the payment of interest in respect of each of the orders for personal relief against each of the respondents, being:

(a)    pre-judgment interest from the date of receipt of the funds pursuant to the relevant fraudulent transaction up to the date of judgment pursuant to s 51A(1)(a) of the FCA Act, at the rate specified in paragraph 2.2 of the Court’s Interest on Judgments Practice Note (GPN-INT), being 4% above the cash rate; and

(b)    post-judgment interest from the date of judgment pursuant to s 52(2)(a) of the FCA Act, at the rate specified in r 39.06 of the Rules, being 6% above the cash rate.

119    Being satisfied that the award of interest in respect of both pre-judgment and post-judgment interest was entirely orthodox in that it was necessary to compensate SMBC for the loss it suffered and in accordance with established principle having regard to the orders made in respect of relief, I made orders in accordance with the SMBC Proposed Orders.

Costs

120    SMBC sought orders that each respondent pay SMBC’s costs of the proceeding, other than those respondents against which the proceeding has been or would be dismissed or discontinued. As mentioned, SMBC did not apply for indemnity costs.

121    SMBC has been entirely successful in its claims as pressed. There is no reason that costs should not follow the event. Accordingly, I made orders as sought by SMBC.

Westpac

Outline of relief sought

122    Westpac sought relief in the form of:

(1)    declarations of trust in relation to the funds stolen from Westpac and the traceable proceeds of those funds;

(2)    orders to give effect to equitable subrogation where Westpac’s stolen funds were used to reduce a secured debt;

(3)    orders to assist in the recovery of assets purchased with Westpac’s stolen funds;

(4)    judgment in the full amount of its loss by way of equitable compensation;

(5)    orders for pre- judgment and post-judgment interest; and

(6)    an order for costs on an indemnity basis.

Key findings

123    By way of summary only, and not in substitution for the detailed findings in the Liability Judgment, the following key aspects of the Liability Judgment are extracted to provide context for the claims brought by Westpac:

(1)    Westpac claimed against a broad range of respondents including Mr Papas, Mr Tesoriero, Ms Agostino, Mr Bouchahine, Forum Finance, FG, FGOC, Forum Enviro, Forum Enviro (Aust), the Other Papas-Related Entities (as that term is used in the Liability Judgment: LJ [171]-[195], other than Forum Fleet, Imagetec FS, Imagetec Solutions, Iugis Waste and Aramia), the Tesoriero Entities (as that term is used in the Liability Judgment: LJ [161]), the Jointly Owned Entities (as that term is used in the Liability Judgment: LJ [154]-[156]), and Theion Ike;

(2)    The fraud against Westpac was comprehensively established on the evidence: LJ [318], [913], [1139];

(3)    Mr Papas had actual knowledge, and was the architect, of the fraud perpetrated against Westpac. His knowledge was attributed to the companies over which he was a director with the consequence that Westpac is entitled to relief against Mr Papas and his related entities to which his knowledge was attributed and which received funds and financial benefits from, and knew and participated in, the fraudulent scheme: LJ [325], [328]-[331], [915], [1149]-[1151], [1168]-[1173], [1177]-[1179];

(4)    Mr Tesoriero had actual knowledge of the fraud perpetrated against Westpac. His knowledge was attributed to the companies of which he was a director. Each of the Tesoriero Entities knew through Mr Tesoriero that the funds it received had been stolen from Westpac. Westpac is entitled to relief against Mr Tesoriero and his related companies which participated in and/or benefitted from the fraudulent scheme: LJ [918], [1174]-[1176];

(5)    Ms Agostino had actual knowledge of the fraud perpetrated against Westpac. Ms Agostino knowingly assisted Mr Papas in executing the fraud, and knowingly received benefits derived from tainted funds reaped from the fraudulent scheme: LJ [381], [383], [915];

(6)    Mr Bouchahine had actual knowledge of the fraud. He knowingly facilitated the receipt of the Westpac stolen funds and knowingly assisted Forum Finance, Iugis NZ, FGFS, Mr Papas and Mr Tesoriero to disburse those funds in breach of trust. Mr Bouchahine received $81,612 of Westpac’s money knowing that the money was paid in breach of trust: LJ [908], [912], [923], [1159]-[1162];

(7)    WBC advanced a total of $341,097,895 to Forum Finance: LJ [59], [150]. WNZL advanced a total of approximately NZD 58,763,505 to Iugis NZ: LJ [59], [543]. These funds were advanced pursuant to the funding structure described internally within Westpac as the Eqwe/Forum Programme (as that term is used in the Liability Judgment: LJ [967]). The Eqwe/Forum Programme comprised a series of agreements between WBC, Eqwe, and Forum Finance, and between WNZL, Eqwe and Iugis NZ entered into between 8 May 2017 and 19 December 2018: LJ [966]-[980];

(8)    The vast majority of the proceeds fraudulently obtained by Forum Finance from WBC were transferred to FGFS. Notwithstanding that LJ [1154] records that FGFS received $253,766,556 from Forum Finance, Westpac submitted that the total amount received by FGFS in WBC stolen funds was in fact $275,341,815 on the basis of the evidence tendered in the liability hearing. The point of difference being the amount of WBC stolen funds received by FGFS from Forum Finance as opposed to the amount of WBC stolen funds that were outstanding from Forum Finance;

(9)    In addition, funds totalling approximately NZD 58,763,505 were transferred by Iugis NZ to FGFS. These funds were obtained by Iugis NZ from WNZL: LJ [44], 543], [977], [1147], [1152]. The funds were then dispersed from FGFS to a number of other recipient entities;

(10)    At the time each recipient entity received Westpac stolen funds, it held those funds on trust for Westpac and was obliged to account for the funds, including those paid away: LJ [1169], [1172], [1175], [1178];

(11)    WBC received $82,453,096 in cloaking payments from Forum Finance and WNZL received NZD 17,325,824 in cloaking payments from Iugis NZ: LJ [74(1)-(2)];

(12)    Westpac received further payment from Forum Finance of $4,425,358 in two tranches on 16 and 17 June 2021. These payments were tactical. They were directed to delaying Westpac from taking recovery action and were made contemporaneously with Mr Papas leaving the country: LJ [63]; and

(13)    The fraud was first discovered by Westpac in about June 2021: LJ [60].

Determination

124    I was satisfied that I should make the orders substantially in the form sought in Westpac’s Proposed Orders. As with Societe Generale and SMBC, I was satisfied that to grant the relief substantially in the form sought was consistent with and reflects the application of the legal principles addressed in the Liability Judgment (as supplemented by the Distribution Judgment) to the factual findings I made in relation to Westpac’s claims. There was no inconsistency between the categories of relief sought such that Westpac would be required to elect between the two. As I have mentioned the personal relief and the proprietary relief sought by Westpac are cumulative remedies: see paragraph [47] above.

125    For completeness, I note that WBC sought a declaration of trust in respect of the full amount of WBC stolen funds received by FGFS from Forum Finance and not just the amount that was outstanding from Forum Finance. In making the declarations that I did, I was satisfied that it was appropriate to recognise the full amount that was received by FGFS and which was held on trust for WBC.

126    Westpac notified all interested parties and persons of the relief that they sought by way of final orders. None of the parties and persons notified sought to be heard in opposition to the making of final orders in the form sought by Westpac.

127    I now turn to address each of the categories of relief sought by Westpac.

Declaratory relief

Forum Finance

128    In relation to Forum Finance, I made a declaration that the amount of $341,097,895 advanced by WBC to Forum Finance was impressed with a trust immediately upon receipt. That declaration was consistent with the imposition of a Black v Freedman trust: LJ [59], [150], [543], [1148].

129    Forum Finance also received funds stolen from WNZL: LJ [150]. WNZL sought a declaration that the funds stolen from it that have been traced as being received by Forum Finance were, from the time of Forum Finance’s receipt, held on trust for WNZL. Westpac submitted that although no claim was sought in the originating process for this relief, it is appropriate that the Court grant this relief given the issue of the receipt of WNZL funds was ventilated at trial and the Liquidator for Forum Finance has traced WNZL’s funds in the amount of approximately $840,802 to Forum Finance: LJ Annexure I, row 28. I accepted Westpac’s submission and made a declaration as sought in respect of this sum. Had Westpac applied to do so, I would have granted leave for Westpac to amend its originating process accordingly.

130    The declarations made included that Forum Finance held the funds, and all traceable proceeds of those funds, on trust for WBC and WNZL from the time of receipt. This is consistent with a Black v Freedman trust arising immediately upon acquisition of the relevant property by the thief: see DJ [112].

Mr Papas

131    I made a declaration that Mr Papas held on trust the full amount of the benefit he received, being approximately $2,193,130 of WBC stolen funds and approximately $848,724 of WNZL stolen funds. I made further specific declarations concerning Westpac’s interest in the Grady speedboat purchased by Mr Papas, discussed further below.

132    Mr Papas knowingly received funds from Forum Finance on trust for WBC and from Iugis NZ on trust for WNZL through the imposition of a Black v Freedman trust: LJ [1149], [1151]. I found that Mr Papas was liable to account to Westpac for those funds, including those paid away: LJ [1149].

FGFS

133    Most funds received by Forum Finance and all of the funds received by Iugis NZ were transferred to FGFS. FGFS held that money on trust for WBC and WNZL through the imposition of a Black v Freedman trust: LJ [1152]. Westpac sought, and I made, declarations of trust in the respect of these funds.

134    I made a declaration that FGFS held on trust the sum of $275,341,815 that it received from Forum Finance. As mentioned, the sum of $275,341,815 was the full amount received by FGFS, as detailed in the affidavit of Jason Preston affirmed 10 June 2022 read in the Financier Proceedings and relied on by Westpac in its submissions on relief.

135    I made a corresponding declaration in relation to all the funds FGFS received from Iugis NZ, the relevant amount being approximately NZD 58,763,505.

Mr Tesoriero

136    I made a declaration that Mr Tesoriero held on trust the full amount of the benefit he received, being approximately $1,177,186 of WBC funds and approximately $381,720 of WNZL funds. I made further specific declarations concerning Westpac’s interest in two cars purchased by Mr Tesoriero.

137    Mr Tesoriero was found to have received $209,450 of Westpac’s money from FGFS: LJ [1158]. That was the total amount of “Additional Property related Expenses” on page 4 of the Tesoriero s 50 summary. The revised version of the Tesoriero s 50 summary (which was in evidence on the liability hearing) demonstrated that the funds stolen from Westpac have been traced in the total amounts of approximately $1,177,186 from WBC and approximately $381,720 from WNZL received by or on behalf of Mr Tesoriero. To the extent that there is not an express finding to that effect in the Liability Judgment, I make that finding now. It reflects and is consistent with the evidence led and which I accepted in the Liability Judgment. I made orders that the Liability Judgment be corrected at LJ [1158] to state the total amount received by Mr Tesoriero as being $1,558,906.64.

138    The Tesoriero s 50 summary included the details of two transactions that relate to the purchase of two cars: a transaction in the sum of approximately $126,860 associated with the purchase of a Chevrolet Bel Air; and a transaction in the sum of approximately $239,197 associated with the purchase of a Ford Mustang Big Boss. The evidence of Mr Preston adduced at the liability hearing, which was not contested by Mr Tesoriero, demonstrated that that the Bel Air and the Big Boss were treated as assets of Mr Tesoriero. Westpac sought additional orders in relation to these assets on the basis that the funds, traceable property, and traceable proceeds held on trust by Mr Tesoriero extended to these assets. I was satisfied that it was appropriate to make specific declarations to make this clear and to recognise Westpac’s beneficial interest in these vehicles and the corresponding entitlement to a proportionate share of the proceeds of sale of these vehicles. I also made orders in relation to delivery up of these vehicles which are addressed below.

Other respondents

139    WBC and WNZL sought orders in relation to the remaining respondents in respect of whom they succeeded in relation to the recipient trust claims. I was satisfied that it was appropriate to make declarations that reflected the findings made in reliance on the tracing evidence summarised in Annexures I and J of the Liability Judgment. The orders made are supported by the evidence led on the liability hearing and the application of the legal principles identified in the Liability Judgment to the findings made therein.

Declarations of right of equitable subrogation

140    Applying the legal principles identified above, in relation to the right of subrogation that arises when stolen funds are used to discharge a secured debt, I made declarations that recognised the equitable subrogation to which WBC and WNZL are entitled as follows:

(1)    as against FGFS, WBC and WNZL are subrogated to the rights of BNY Trust Company of Australia as registered mortgagee in respect of the contributions made from trust property (being approximately $1,316,753 held on trust for WBC and approximately $144,686 held on trust for WNZL used for the purchase, maintenance, and improvement of the Atherton Road Property) to discharge any part of the secured debt to BNY in respect of the Atherton Road Property;

(1)    as against FGFS, WBC and WNZL are subrogated to the rights of the National Australia Bank (NAB) as secured creditor in respect of the contributions made from the trust property (being approximately $3,597 held on trust for WBC and approximately $405 held on trust for WNZL used in the purchase of an Audi RSQ8) to discharge any part of the secured debt to NAB in respect of the Audi RSQ8;

(2)    as against 64-66 Berkeley Street, WBC and WNZL are subrogated to the rights of GI 500 Pty Ltd (Gemi) as registered mortgagee in respect of funds (being approximately $592,485 held on trust for WBC and approximately $159,929 held on trust for WNZL used for the acquisition, maintenance, improvement and development of the Berkeley Street Property), the traceable property acquired using those funds, and traceable proceeds of those funds used in the discharge of the secured debt to Gemi;

(3)    as against 14 James Street, WBC and WNZL are subrogated to the rights of NAB as registered mortgagee in respect of the contributions made from the trust property (being approximately $2,136,707 held on trust for WBC and approximately $326,111 held on trust for WNZL used for the purchase, maintenance, and improvement of the James Street Properties) to discharge any part of the secured debt to NAB in respect of the James Street Properties;

(4)    as against 5 Bulkara Street, WBC and WNZL are subrogated to the rights of NAB as registered mortgagee in respect of any part of the trust property (being approximately $2,529,764 held on trust for WBC and approximately $269,213 held on trust for WNZL used for the acquisition, maintenance, improvement and development of the 5 Bulkara Street Property) that was used in discharge of the secured debt to NAB in respect of the 5 Bulkara Street Property;

(5)    as against 6 Bulkara Street, WBC and WNZL are subrogated to the rights of NAB as registered mortgagee in respect of any part of the trust property (being approximately $2,488,329 held on trust for WBC and approximately $616,105 held on trust for WNZL used for the acquisition, maintenance, improvement and development of the 6 Bulkara Street Property) that was used in discharge of the secured debt to NAB in respect of the 6 Bulkara Street Property; and

(6)    as against 23 Margaret Street, WBC and WNZL are subrogated to the rights of AFSH Nominees Pty Ltd as registered mortgagee in respect of any part of the trust property (being approximately $530,221 held on trust for WBC and approximately $108,212 held on trust for WNZL for the maintenance and development of the Rozelle Property, as defined below) that was used in discharge of the secured debt to AFSH in respect of the Rozelle Property.

Improvement claims

141    Applying the principles identified above in relation to the application of trust property towards the purchase, maintenance and improvement of real properties, I made orders in the Westpac Proceeding that recognised that WBC and WNZL were entitled to have recognised a beneficial interest in the following real properties which reflected their respective contributions:

(1)    the Atherton Road Property;

(2)    the Berkeley Street Property;

(3)    the James Street Properties;

(4)    the 26 Edmondstone Road Property;

(5)    the 5 Bulkara Street Property;

(6)    the 6 Bulkara Street Property;

(7)    the Glen Huntly Property;

(8)    the 9 Gregory Street Property; and

(9)    the Rozelle apartment.

142    As will be seen in the Distribution Judgment, some asset pools will be exhausted by higher priority distributions before Westpac’s improvement claims are reached.

Orders for delivery up of assets

143    Some of the assets into which Westpac’s stolen funds have been traced have not been recovered, these include the Grady, the Bel Air and the Big Boss. The s 50 summary of assets owned by Mr Papas and Mr Tesoriero tendered in the Financier Proceedings records payments directed towards the acquisition and maintenance of the Grady, the Bel Air and the Big Boss.

144    The s 50 summary records seven payments from the FGFS Account to Short Marine Pty Ltd in respect of the Grady from 14 May 2020 to 20 April 2021. The Grady was purchased and registered in Mr Papas’ name. An application for vessel registration dated 27 August 2020 for the Grady signed by Mr Papas and an interim vessel registration extract dated 19 August 2020 for the Grady in Mr Papas’ name were produced in response to a subpoena issued to the Roads and Maritime Services (NSW) on 23 August 2021. A copy of the subpoena and the vessel registration documents are in evidence. The Grady is currently in the possession of Lloyds — it is yet to be realised.

145    The s 50 summary records one payment from the FGFS Account to “Chevrolet Bel Air” on 5 December 2019 with the description “Vince T Grays”. An email chain for the purchase of the Bel Air and a tax invoice dated 27 November 2019 from grays.com in relation to the Bel Air are in evidence. The tax invoice is addressed to David Semaan. The tax invoice was attached to an email from Grays.com to Mr Semaan on 28 November 2019. Mr Semaan replied to Grays.com later that day explaining that he “purchased [the Bel Air] for a customer of mine which is currently overseas” and to “please re name the invoice to : Vince Tesoriero”. Grays.com replied to Mr Semaan stating that they were unable to create a separate invoice in Mr Tesoriero’s name. On 2 December 2019, Mr Semaan forwarded this email chain to Mr Tesoriero, who subsequently forwarded the email chain to “Jason Lockett Finance”. Mr Tesoriero asked “where do I go from here? Is it better to get it inspected while at Grays or should I just pay for it?”. I infer that Mr Semaan purchased the Bel Air from Grays.com on Mr Tesoriero’s behalf.

146    The s 50 summary records one payment from the FGFS Account to “Ford Mustang Boss 429” on 6 October 2020 with the description “VT Grays”. A tax invoice dated 30 September 2020 from grays.com for the purchase of the Big Boss is addressed to Sammy Pagano, Mr Tesoriero’s girlfriend.

147    The Bel Air and the Big Boss have not been recovered and the whereabouts of those vehicles is not known to the Liquidators.

148    In these circumstances, I concluded it was appropriate to make orders for the delivery up of each of these assets to the Liquidators on behalf of the applicants and orders requiring Mr Papas and Mr Tesoriero respectively to do all things necessary to give effect to their sale. In the event that either Mr Papas or Mr Tesoriero do not assist in executing the requisite documents to give effect to the sale of any of those assets, I made orders empowering the Registrar to execute the necessary documents.

149    I now turn to address the orders made in relation to specific properties or assets that have not already been addressed.

23 Margaret Street

150    The property at 23 Margaret Street, Rozelle NSW 2039 (Rozelle Property) was the residence of Mr Papas. It was owned by 23 Margaret Street, one of the Tesoriero Entities, and it has been sold. From 3 May 2018 to 25 February 2022, AFSH was the sole registered mortgagee of the Rozelle Property. The mortgage was executed by Mr Tesoriero. The Loan Account Statement from AFG Home Loans sets out a loan from AFSH to 23 Margaret Street for an amount of $2,880,000. The loan start date was 30 April 2018, with a loan maturity date of 30 April 2048.

151    A deed described as a “sale process deed” dated 3 September 2021 for the sale of the Rozelle Property was signed by Mr Tesoriero, in his own capacity and as the sole director and company secretary of 23 Margaret Street, and Westpac. By that deed, it was agreed that Westpac would sell the Rozelle Property in accordance with the terms of the deed. On 22 February 2022, the Rozelle Property was sold. Following that sale, and in accordance with the orders made in the Westpac Proceeding on 9 February 2022, funds in the amount of approximately $1,340,867 were placed into a controlled monies account held with WBC in the joint names of MinterEllison and Madgwicks as trustees for Mr Tesoriero (CMA).

152    On 26 August 2022, in accordance with orders made on 20 July 2022, funds were released from the CMA to be paid towards Mr Tesoriero’s legal costs. The Westpac account statements for the CMA for the period 22 November 2024 to 7 February 2025 show that approximately $276,730 remains in the CMA.

153    The NAB account statements for the 23 Margaret Street Trust covering the period 28 March 2018 to 30 July 2021 demonstrate that funds from Forum Group, FGFS and other entities in the Forum group were deposited into that account. The s 50 Tracing Summary for 23 Margaret Street records that 57 payments were made to the 23 Margaret Street account, totalling approximately $530,221 of WBC’s funds and approximately $108,213 of WNZL’s funds. These payments were relevantly described as a “Loan to 23 Marg” or monthly “rent”.

154    Mortgage payments on the Rozelle Property were made from the same 23 Margaret Street account into which Westpac’s stolen funds were transferred. Westpac has demonstrated that shortly after tranches of Westpac’s stolen funds were transferred into the 23 Margaret Street account from Forum entities, those funds were used to make regular payments to AFSH.

155    Applying the necessarily robust approach to fact finding in the context of tracing stolen moneys and the presumptions which apply against a wrongdoer identified above, I was satisfied that the evidence established that Westpac’s stolen funds can be traced to the Rozelle Property mortgage repayments. Accordingly, I was satisfied that it was appropriate to make the orders sought by WBC and WNZL in relation to the Rozelle Property and the balance of the sale proceeds in the relevant account. As mentioned, I was also satisfied that applying the principles I have referred to above in relation to equitable subrogation where stolen funds are used to discharge a secured debt (or part of it), it was appropriate to declare that WBC and WNZL are subrogated to the rights of the registered mortgagee in respect of the funds that were used to service the mortgage on the Rozelle Property. As a final matter, I also ordered that the remaining funds in the CMA be paid out rateably in proportion to the value of the contributions made by WBC, WNZL and SMBC, consistently with the value of the trusts declared in their favour.

1160 Glen Huntly Road

156    1160 Glen Huntly Road was a respondent in the Westpac Proceeding only.

157    1160 Glen Huntly Road was for a period deregistered by ASIC. On Westpac’s application, I made orders pursuant to s 601AH(2) of the Corporations Act that 1160 Glen Huntly Road be reinstated by ASIC: Westpac Banking Corporation v Forum Finance Pty Limited (in liq) (Reinstatement) [2025] FCA 520. It was necessary for 1160 Glen Huntly Road to be reinstated for Westpac to be able to obtain and enforce orders against it.

158    A s 50 summary for 1160 Glen Huntly Road sets out payments to, or on behalf of, 1160 Glen Huntly Road which included transactions in relation to the purchase of the property at 1160 Glen Huntly Road, Glen Huntly VIC 3163 (Glen Huntly Property). Westpac has traced approximately $942,639 of Westpac’s funds as being received by 1160 Glen Huntly Road, comprising approximately $705,944 from WBC and approximately $236,695 from WNZL: LJ [1175], Annexure J. The 1160 Glen Huntly Road s 50 summary demonstrates that Westpac’s stolen funds were used in relation to the purchase of the Glen Huntly Property. Applying the requisite robustness required for fact finding in the present context, I found that Westpac is entitled to trace into the Glen Huntly Property and its sale proceeds.

159    The Glen Huntly Property was sold by the mortgagee in possession of the property, Devnull Investments Pty Ltd, on around 17 January 2022. The residual proceeds of the Glen Huntly Property sale, being the amount of $759,619, were paid into the Supreme Court of Victoria.

160    I was satisfied it was appropriate to make declarations in the form proposed by Westpac to recognise that 1160 Glen Huntly Road received and held on trust the funds stolen from Westpac that it had received, and the traceable property acquired using those funds, at all times since it received them. Further, to declare that the funds and traceable property held on trust included the sale proceeds of the Glen Huntly Property held by the Supreme Court of Victoria to the extent of the respective Westpac beneficial interests. Westpac indicated that it intended to apply to the Supreme Court of Victoria for the release of those funds to Westpac in due course.

Petrol Station-Owning Companies

161    Nine of the property-owning entities the subject of the Westpac Proceeding are petrol station-owning companies. The relevant entities are:

(1)    9 Main Street;

(2)    275 High Street;

(3)    89 Betka Road;

(4)    31 Ellerman Street;

(5)    4 Cowslip Street;

(6)    55 Nolan Street;

(7)    160 Murray Valley;

(8)    123 High Street; and

(9)    14 Kirwin Road,

(together, the Petrol Station Companies).

162    The Petrol Station Companies have each been in liquidation since 16 December 2022. On 24 January 2023, I made orders granting leave to Westpac to continue the proceedings against the Petrol Station Companies.

163    The real properties owned by each of the Petrol Station Companies have been sold. Since 30 May 2023, the solicitors for the liquidators of the Petrol Station Companies, Aitken Partners, have held approximately $1,591,055, being part of the proceeds of the sale of the relevant properties, in their trust account. That amount is equal to the total amount of Westpac funds traced to all the Petrol Station Companies: LJ Annexure J.

164    On 12 November 2024, Aitken Partners confirmed that they continue to hold approximately $1,591,055 in trust and will release the funds to Westpac upon receipt of orders giving effect to the Liability Judgment and the expiration of the appeal period in relation to those orders.

165    I made orders in accordance with Westpac’s Proposed Orders that the funds held by Aitken Partners which are the subject of the proprietary claims by WBC and WNZL be paid to Westpac.

8-12 Natalia Avenue

166    8-12 Natalia Avenue is a respondent in the Westpac Proceeding and the SMBC Proceeding. Payments in the amount of $586,000 each were made on 19 December 2019 and 9 June 2020 from the FGFS Account to Buxton Sales Trust. The 8-12 Natalia Avenue s 50 summary demonstrates that those payments comprised funds from WBC and WNZL. Each payment was described as a “deposit”.

167    The evidence demonstrates that these funds were used to pay the deposit of $1,172,000 on the purchase of the property at 8-12 Natalia Avenue, Oakleigh VIC 3167 (Oakleigh Property).

168    Following a dispute with Mr Tesoriero in August 2021, arising in part from the undisclosed entry into a nomination deed transferring the contract for sale of the Oakleigh Property to his nominee as purchaser, this Court made orders on 1 October 2021 for the amount of approximately $773,363 to be paid into Court. Those funds were paid into the Court on 11 October 2021.Those funds represented payment of part of the deposit by the nominee under the nomination deed. Funds paid into Court may only be paid out in accordance with an order of the Court: r 2.43 of the Rules.

169    The balance of the deposit paid under the nomination deed for the Oakleigh Property, being approximately $398,637, was held in the trust account of Arnold Bloch Leibler (ABL), the solicitors for the nominee. ABL continues to hold the fund until further order or direction of the Court or receipt of a written direction by all parties claiming an interest in the funds.

170    I made orders in accordance with those proposed by Westpac to facilitate the release of the proceeds of the deposit funds, including an order that the District Registrar pay the funds held in Court to an account nominated by Westpac and an order that ABL pay the funds it holds to an account nominated by Westpac.

Ms Agostino

171    Ms Agostino received approximately $231,870 from funds stolen from Westpac: LJ [1165]. Of that total sum, approximately $218,921 was stolen from WBC, and approximately $12,949 was stolen from WNZL. Westpac submits that funds in the amount of approximately $171,432, being the remaining sale proceeds from the sale of the Rozelle apartment that was owned by Ms Agostino, and any interest accruing thereon, held in the trust account of Harris Friedman Lawyers, are held on trust for WBC and WNZL. I was satisfied that it was appropriate to make orders as proposed by Westpac in this regard for the following reasons.

172    Ms Agostino used funds obtained from the Forum entities to purchase the Rozelle apartment and to service the secured mortgage on that property: LJ [384]. A summary of payments made in connection with the Rozelle apartment, prepared by Westpac in connection with a freezing order application against Ms Agostino was in evidence. It demonstrates that on 21 February 2019, $46,250 was paid by Palante to Sydney City Realty Pty Ltd (trading as Balmain Realty) as a deposit for the purchase of the Rozelle apartment. It will be recalled that Palante is an entity owned and controlled by Mr Papas and was also a respondent to the Westpac Proceeding. Documents produced by Balmain Realty in response to a subpoena issued by Westpac confirmed that the deposit was paid by Palante, the sale price was $925,000 and Ms Agostino was the purchaser. The s 50 summary of payments to, or on behalf of, Ms Agostino demonstrated that the entirety of the deposit paid on the Rozelle apartment was derived from WBC funds. In addition to the deposit, Westpac has demonstrated that further WBC and WNZL funds were used to complete the purchase, with those funds also being channelled via Palante. In total, approximately $156,641 of Westpac’s stolen funds were applied towards the purchase of the Rozelle apartment.

173    Westpac has also established that Westpac’s stolen funds were also used by Ms Agostino to service the mortgage on the Rozelle apartment. Ms Agostino received funds from Forum entities, which were derived from Westpac’s stolen funds, in close proximity to the time when she made mortgage payments on the Rozelle apartment. Having regard to the liability findings I have made against Ms Agostino, I was satisfied that it was appropriate to make orders in accordance with those proposed by Westpac: see LJ [1164]-[1167].

174    Accordingly, I made orders that Ms Agostino received and held the amount of approximately $218,921 and the traceable property acquired using those funds and the traceable proceeds of those funds on trust for WBC from the time of receipt. I made a corresponding declaration in relation to approximately $12,949 received and held on trust for WNZL. I made a further declaration that recognised that the amount of approximately $171,432 held in the trust account Harris Friedman Lawyers forms part of the funds and traceable property held on trust for WBC and WNZL in their respective interests, and ordered that the funds held by Harris Friedman Lawyers are to be paid to Westpac. 0

Orders for Judgment

175    I have addressed the relevant principles in relation to the award of equitable compensation above. Applying those principles to the facts found in the Liability Judgment, I made orders for judgment against the respondents in the Westpac Proceeding in accordance with the orders proposed by Westpac.

Forum Finance and Theion Ike – recipient trust claims

176    As against Forum Finance, WBC sought equitable compensation in the full amount of WBC’s loss by reason of Forum Finance’s obligation as trustee of the stolen funds to account: see LJ [1127]. The s 50 summary of transactions between Forum Finance and WBC demonstrated that the balance outstanding, and the sum of WBC’s loss, was approximately $253,766,556. The s 50 summary was not contested and was admitted into evidence: LJ [979]. I made an order for judgment in favour of WBC against Forum Finance for approximately $253,766,556.

177    Theion Ike received approximately $99,142 from the funds stolen from WBC and $32,989 from the funds stolen from WNZL: LJ [1180]. As against Theion Ike, WBC and WNZL sought judgment, being equitable compensation, for the whole of the stolen funds received by Theion Ike on the basis of Theion Ike’s obligation to account and reconstitute the trust: see LJ [1127]. I made orders for judgment in favour of: WBC in the amount of approximately $99,142; and WNZL in the amount of approximately $32,989.

Other respondents – knowing assistance claims

178    Westpac established liability against a number of respondents on the basis of knowing assistance claims. Where a knowing assistant is the “alter ego” or has acted in concert with the fiduciary or trustee to secure a mutual benefit, the knowing assistant is jointly and severally liable with the defaulting fiduciary: LJ [1134], [1136]. On this basis, each of the respondents found to be knowing assistants are liable to pay equitable compensation to each of WBC and WNZL in relation to the loss that each has suffered.

179    WBC’s loss is the amount that remains outstanding from funds advanced to Forum Finance, being approximately $253,766,556. WNZL’s loss is the amount that remains outstanding from funds advanced to Iugis NZ being approximately NZD 44,097,969. Westpac has sought equitable compensation for the full amount of the loss from each of the respondents, notwithstanding that certain respondents may have been incorporated after the commencement of the fraud. I accepted Westpac’s submission that each of the respondents was relevantly the alter ego of, and acted in concert with, Mr Papas, or Mr Papas and Mr Tesoriero; and their liability is joint and several with that of the defaulting fiduciary having acted in concert to secure the benefit of the fraud: Grimaldi at [556]-[558] (Finn, Stone and Perram JJ).

180    Applying these principles, I made orders for judgment in favour of WBC in the amount of approximately $253,766,556 and WNZL in the amount of approximately NZD 44,097,969 against the following respondents:

(1)    Mr Papas (second respondent);

(2)    Mr Tesoriero (third respondent);

(3)    FGFS (fourth respondent);

(4)    FG (fifth respondent);

(5)    Forum Enviro (sixth respondent);

(6)    Forum Enviro (Aust) (seventh respondent);

(7)    64-66 Berkeley Street (eighth respondent);

(8)    14 James Street (ninth respondent);

(9)    26 Edmonstone Road (tenth respondent);

(10)    5 Bulkara Street (eleventh respondent);

(11)    6 Bulkara Street (twelfth respondent);

(12)    23 Margaret Street (thirteenth respondent);

(13)    1160 Glen Huntly Road (fourteenth respondent);

(14)    14 Kirwin Road (fifteenth respondent);

(15)    Canner (sixteenth respondent);

(16)    123 High Street (seventeenth respondent);

(17)    160 Murray Valley (eighteenth respondent);

(18)    31 Ellerman Street (nineteenth respondent);

(19)    4 Cowslip Street (twentieth respondent);

(20)    55 Nolan Street (twenty-first respondent);

(21)    89 Betka Road (twenty-second respondent);

(22)    9 Gregory Street (twenty-third respondent);

(23)    9 Main Street (twenty-fourth respondent);

(24)    286 Carlisle Street (twenty-fifth respondent);

(25)    275 High Street (twenty-sixth respondent);

(26)    Mazcon (twenty-seventh respondent);

(27)    Palante (twenty-eighth respondent);

(28)    FGOC (thirtieth respondent);

(29)    Iugis (thirty-first respondent);

(30)    Iugis (UK) (thirty-second respondent);

(31)    Spartan (thirty-sixth respondent);

(32)    Intrashield (thirty-seventh respondent);

(33)    TIG (thirty-eighth respondent);

(34)    Mangusta (thirty-ninth respondent);

(35)    193 Carlisle Street (fortieth respondent);

(36)    8-12 Natalia Avenue (forty-first respondent);

(37)    Iugis Greece (forty-second respondent);

(38)    Iugis Energy Greece (forty-third respondent);

(39)    Mr Bouchahine (forty-sixth respondent); and

(40)    Ms Agostino (forty-seventh respondent).

Discontinuances

181    Westpac sought orders that the Westpac Proceeding be discontinued, with no orders as to costs, against:

(1)    Iugis Holdings UK;

(2)    Iugis GFS UK;

(3)    Iugis Finance UK; and

(4)    D&D Group.

182    Westpac did not press its claims against these respondents at the commencement of the final hearing: LJ [196]. No appearances were filed by these respondents. In the circumstances, I made the orders as proposed by Westpac.

Interest

183    In its proposed short minutes of order, in respect of each monetary judgment, WBC sought an order for:

(a)    pre-judgment interest from the date of receipt of the funds up to the date of judgment pursuant to s 51A(1)(a) of the FCA Act; and

(b)    post-judgment interest from the date of judgment pursuant to s 52(2)(a) of the FCA Act.

184    Likewise, WNZL sought orders for pre-judgment interest and post-judgment interest on all of the monetary judgments obtained in its favour.

185    Judgment was given on 21 May 2025. At that time, I granted leave to Westpac and SMBC to apply to have the pre-judgment interest quantified in respect of each relevant respondent (in the way in which Societe Generale had in the Societe Generale Proposed Orders). Westpac took up that leave by submitting further proposed short minutes quantifying pre-judgment interest. SMBC did not.

186    Westpac provided a schedule in support of their proposed pre-judgment interest orders, calculating the total pre-judgment interest accrued from the date of payment to 4 June 2025 for the following amounts:

(1)    the outstanding principal for each payment from WBC to Forum Finance pursuant to Transactions 1 to 100;

(2)    the outstanding principal for each payment from WNZL to Iugis NZ pursuant to Transactions NZ1 to NZ36; and

(3)    payments received by Theion Ike traced to WBC and WNZL.

187    Westpac calculated pre-judgment interest up to 4 June 2025. Westpac appears to have chosen this date (instead of 21 May 2025) on the basis that this was the date on which the orders for judgment made on 21 May 2025 were taken to have been entered by operation of r 39.32(3) of the Rules. Having regard to r 39.01, the judgment orders took effect on the date on which they were made, being 21 May 2025. For this reason, in making orders which quantify pre-judgment interest, I have revised Westpac’s quantification of pre-judgment interest to use the date of 21 May 2025 as the end date (instead of 4 June 2025). The orders I make in this respect will be taken to be entered in accordance with rr 39.35 and 39.32(3). Before the orders that I will make today are taken to have been entered, Westpac may have recourse to r 39.04 of the Rules to raise any concerns they may have in relation to the relevant date being the 21 May 2025. Any application after the orders are entered will have to be made under the narrower gateway provided by r 39.05 of the Rules.

Costs

188    Westpac sought costs orders against the respondents against which they pressed their claims. Westpac was entirely successful in their claims against these respondents. I made orders that costs should follow the event.

189    Westpac sought an order that their costs be assessed on an indemnity basis. I was satisfied that the circumstances justified the making of an order for indemnity costs to be made against each respondent. In reaching this conclusion, I applied the principles to which I have made reference above: see paragraphs [48]-[53] above. The observations that I have made in relation to the award of indemnity costs in favour of Societe Generale apply mutatis mutandis to Westpac. I will not repeat those matters here. Suffice to say that I was satisfied that WBC and WNZL were the victims of a large-scale fraud that was comprehensively established on the evidence: LJ [1], [3]. Mr Papas was involved as a principal perpetrator of the fraud: LJ [4], [323]-[325], [915]-[916]. Each of Mr Tesoriero, Ms Agostino and Mr Bouchahine had actual knowledge and assisted in the fraud: see LJ [381]-[383], [917]-[925]. Having regard to the nature of the fraud, the conduct of the proceeding, the detailed forensic evidence that has been led and the fact that the conduct was not defensible, it is appropriate that costs should be assessed on an indemnity basis. My reasons for concluding that the conduct was not defensible, and that the respondents should have known that it was not defensible, are set out in the earlier section of these reasons addressing the award of indemnity costs to Societe Generale.

190    In reaching my conclusion on the award of indemnity costs in the Westpac Proceeding, I separately considered whether the costs orders against Mr Bouchahine and Ms Agostino should be made on an indemnity basis. I concluded that they should. My reasons were as follows.

191    It is appropriate to consider the indemnity costs order Westpac sought against Mr Bouchahine separately and in more detail. Mr Bouchahine actively defended the allegations made against him as to his actual knowledge of, and involvement in, the fraud: LJ [10], [136]. He gave evidence as to his role as CFO of the Forum group of companies and in FGFS in paying expenses for the personal projects of Mr Papas and/or Mr Tesoriero and was cross-examined: LJ [258]. Mr Bouchahine made a number of concessions on the key issues in the proceedings, many of which were against his interests. The key issue which he did not concede was that he knew of the fraud. He maintained his denial that he had sufficient knowledge of the fraud to be liable to Westpac: LJ [400]-[402]. Much of his evidence in relation to his knowledge, or lack thereof, of the fraud was rejected: see, for example, LJ [769]-[784].

192    Mr Bouchahine was not an architect of the fraud against Westpac, but he was found to have had actual knowledge of the fraud (LJ [908], [912], [923], [1159]), to have knowingly received stolen funds (LJ [1160], [1162]), and to have knowingly assisted Forum Finance, Iugis NZ, FGFS, Mr Papas and Mr Tesoriero to disburse the funds obtained from Westpac in breach of trust (LJ [1161]).

193    In these circumstances, I was satisfied that it was appropriate to award costs on an indemnity basis against Mr Bouchahine. While I accepted that Mr Bouchahine acted responsibly in making concessions and in that way reduced the costs of the proceeding against him, Mr Bouchahine’s conduct was integral to giving effect to the fraud. He was involved over a prolonged period. He knew his conduct was giving effect to the fraud. This was a case where it was unreasonable for Mr Bouchahine to have subjected Westpac to the costs of the litigation against him resulting from his dishonest conduct. An order for costs on an indemnity basis was appropriate.

194    As for Ms Agostino, I reached the view that an indemnity costs order against her in favour of Westpac was also appropriate. I acknowledge that Ms Agostino was not an architect of the fraud in the way in which Mr Papas was, nor was she as closely involved in giving effect to the fraud as Mr Tesoriero and Mr Bouchahine were. Nonetheless, Ms Agostino had actual knowledge of the fraud, she knowingly received stolen funds, and she knowingly assisted Mr Papas, Mr Tesoriero and the related entities to disburse funds obtained in breach of trust: LJ [380]-[383], [917], [1164]-[1167]. She filed a positive defence, but did not take part in the proceedings after she fled the jurisdiction: LJ [137]-[138], [335]-[336]. Applying the principles I have identified above in relation to the award of indemnity costs and taking into account the findings I made against her, I was satisfied that it was appropriate to make a costs order on an indemnity basis against her.

CONCLUSION

195    For these reasons, I made the final orders in each of the Financier Proceedings in the form made on 21 May 2025, with minor variations on 23 May 2025 and 4 June 2025.

Associate:

Dated:    1 August 2025

SCHEDULE OF PARTIES