Aslan v Ficarra

1. [1]

   THE COURT: These proceedings arise from a claim brought by Ms Dina Aslan in the Supreme Court for damages against, originally, sixteen defendants in relation to an alleged conspiracy. Ms Aslan is representing herself. Ms Patricia Ficarra and Campion Realty Pty Ltd t/as Unique Property Inner West (for whom Ms Ficarra worked) were named as the tenth and fifteenth defendants. They are the respondents in this matter. The current version of the applicant’s pleading is an amended statement of claim (ASOC), seemingly provided to the parties on or about 26 August 2025. The parties’ arguments proceeded by reference to that document, although this version has not actually been filed.

2. [2]

   Justice Cavanagh has heard and determined a number of interlocutory applications in the matter. The applicant now seeks leave to appeal from two of those decisions. His Honour dismissed proceedings against the respondents: Aslan v Pucci (No 4) [2025] NSWSC 1047 (Aslan (No 4)). His Honour then declined an application to re-open that decision, and made a gross sum cost order in favour of the first respondent in the amount of $34,818.50: Aslan v Pucci (No 5) [2025] NSWSC 1489 (Aslan (No 5)). The applicant seeks leave to appeal against the dismissal order made in Aslan (No 4) and against the gross sum costs order made in Aslan (No 5).

3. [3]

   The second respondent was deregistered in October 2025, subsequent to the orders made in Aslan (No 4). Despite that fact, a former director of that company named Ms Berta Esteves Dias – who herself previously was joined as the eleventh defendant but now appears to offer some support to the plaintiff – has filed a purported notice of appearance on behalf of the company. Ms Dias also filed an affidavit indicating that the company “does not oppose the grant of leave to appeal in these proceedings”, but did not seek to make submissions “on the ultimate merits of the Applicant’s claim”. Given that the company has been deregistered this material does not advance determination of the application for leave to appeal. In the Court below it was accepted that the position of the company rose and fell with that of Ms Ficarra: Aslan (No 4) at [9]. No contrary suggestion was made in this Court.

4. [4]

   The summons seeking leave to appeal was filed on 18 December 2025. The orders in Aslan (No 4) and Aslan (No 5) were made on 10 September 2025 and 24 November 2025 respectively. A notice of intention to appeal was filed, late, on 8 December 2025. The applicant requires an extension of time with respect to her appeal against the former set of orders: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 51.9 and 51.10. The applicant has provided an explanation for the delay, relating to her understanding that she could and should apply to have Aslan (No 4) reopened rather than appealing. The delay is not significant. No prejudice has been identified. The extension of time should be granted.

5. [5]

   However, the application for leave to appeal should be refused with costs. We first set out the relevant background to the application before considering the merits of the application for leave.

Background

1. [6]

   Justice Cavanagh described the features of the main proceedings which are relevant for present purposes in Aslan v Pucci (No 3) [2025] NSWSC 1027 (Aslan (No 3)):

2. [7]

   The respondents are said to have become involved in this matter via a residential tenancy agreement (RTA) entered into by the applicant, at the instigation of the first defendant, in respect of a property in Illawong which was said to be owned by another of the Pucci defendants. The respondents were the real estate agent and agency (respectively) managing the tenancy.

3. [8]

   In Aslan (No 4) the primary judge dismissed the proceedings against the respondents pursuant to UCPR r 13.4(1)(b). His Honour concluded that the case against them was doomed to fail.

4. [9]

   His Honour described the applicant’s claim against the respondents as alleging that they had knowingly participated in a fraudulent conspiracy to misappropriate the applicant’s personal identity and information and fabricate one or more RTAs for unlawful gain, in concert with the Pucci defendants. This was said to be part of a scheme to mislead lenders and channel cash from the first defendant (including the money obtained from the plaintiff) to the third defendant: at [20]-[23]. His Honour described the core of the applicant’s case against the respondents as follows:

5. [10]

   The primary judge held that even if these factual allegations were accepted the applicant’s case would nevertheless be unsuccessful. That was so because even if the respondents had breached their legal and ethical obligations in the manner alleged (a point which his Honour assumed for the purposes of determining the application):

6. [11]

   His Honour held that there was no evidence that the respondents had participated in the wider conspiracy.

7. [12]

   Critically, his Honour further held that the applicant had not in her pleadings identified any basis on which the allegation against the respondents – put simply, identity theft – had caused the loss for which she claimed damages. The applicant could not point to any link between the damages she claimed and the distress and reputational and legal risk alleged to have been caused by the respondents: at [55]-[57].

8. [13]

   Aslan (No 5) involved two applications. The first was made by the applicant, the effect of which was that the orders dismissing the case against the two respondents should be set aside on the basis that they were obtained against good faith in that the respondents had relied on fraudulent evidence: UCPR, r 36.15(1). This motion was dismissed. The second was a notice of motion by the first respondent seeking an order that costs be paid by the applicant on a gross sum basis. Such an order was made. The applicant appeals against that order.

9. [14]

   On that issue, his Honour first addressed the question of whether such an order should be made at all, and referred to factors which his Honour identified as “particularly relevant” (at [33]): that the applicant was self-represented and the first respondent would therefore be required to go through the process and expense of a costs assessment; that the process of costs assessment would likely be protracted and involve objections from the applicant; and that the first respondent was “an ordinary member of society”, not an institution, who had paid all her own costs (not being insured) and was entitled to recover costs from the unsuccessful applicant. His Honour determined that it was appropriate to make a gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), applying a discount of 40% with respect to the costs incurred.

Leave to appeal

1. [15]

   It was not disputed that the applicant requires leave to appeal with respect to the two judgments challenged. Principles relevant to the grant of leave to appeal were summarised in Mohareb v Local Court of New South Wales [2024] NSWCA 235 at [25]-[36]; see also Cheng v Motor Yacht Sales Australia Pty Ltd t/as Boutique Boat Co (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15]. In general an applicant must establish that the proposed appeal involves an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable. The applicant does not say there is any issue of principle or question of public importance enlivened by this case. She argued that a reasonably clear injustice exists.

2. [16]

   The applicant’s draft notice of appeal contains twelve proposed grounds of appeal, most of which contain a number of sub-grounds. In her primary written submissions the applicant addressed four “principal questions in this application for leave”. It is sufficient here to address those matters. They were (as re-ordered by us): error in applying the legal test; fresh evidence; procedural fairness; and discretionary error.

3. [17]

   The first issue encompasses grounds which argue in various ways that the primary judge was wrong to conclude, on the material before him, that the applicant’s allegations against the respondents were doomed to fail.

4. [18]

   The applicant makes very serious allegations against the respondents, doing so with the benefit of the privilege that attaches to court proceedings. Such allegations should not be made without a proper basis, and doing so is an abuse of process: note Odtojan v Condon [2023] NSWCA 129 at [24]-[31]; St Paul’s College Ltd v Allan [2026] NSWCA 22 at [35]-[38]. When the applicant was asked in this Court what her basis was for making these claims she articulated various matters, most of which related to evidence that the first respondent had herself provided after the proceedings had been commenced. It is difficult to see how the matters the applicant identified provided a basis for her to make the grave allegations she has made. However, the primary judge did not decide the case on that footing, though his Honour noted a concern about the point: Aslan (No 4) at [32], [42]. Rather, his Honour proceeded on the express assumption that the allegations made against the respondents were true. It is appropriate to take the same approach here.

5. [19]

   As explained, the primary judge gave a number of reasons for his conclusion that the allegations were doomed to fail, but it is sufficient to focus on the reason relating to causation of loss. His Honour’s reasoning on the point was correct.

6. [20]

   The claim against the respondents is pleaded in the ASOC at [156]-[162]. The applicant alleges that the respondents “participated in the fabrication of one or more residential tenancy agreements falsely purporting to bear the Plaintiff’s name and signature”. She alleges that these agreements “were created without the Plaintiff’s knowledge, consent or authority”, and that they were “used as false instruments” to project fictitious rental income for the purpose of making fraudulent loan applications, and “to channel or launder Defendant 1’s cash” to his father (being the third defendant). She then alleges that a fabricated RTA “was used to fraudulently obtain a mortgage facility from Orde Financial in excess of $980,000”. The conduct of the respondents is said to amount to “serious civil and criminal breaches”, including identity fraud and “[c]onspiracy to defraud Orde Financial”. The ASOC states that as a result of the pleaded conduct, the applicant “has suffered reputational harm, legal risk, and distress, and has been subjected to numerous legal consequences, including defending herself in tribunal proceedings”.

7. [21]

   The RTAs relate to a property that belonged to the first defendant’s father. The applicant accepts that she signed an RTA agreeing to lease this property, as she was told the father was to move into an aged care facility. She says this was done under undue pressure from, in particular, the first defendant. However, she says that the RTA was later altered in various ways. The first respondent admitted in an affidavit dated 9 September 2025, and filed at 8:13am on 10 September 2025, that she took steps to “correct” a “typo” on the front sheet of the signed RTA, so that the identification of the landlord as “Alfred Pucci” was altered to refer instead to “Alfredo Pucci”. She said she could not “now recall specifically what steps were taken to correct the typo”.

8. [22]

   The applicant has explained in affidavit evidence that she never moved into the property, nor paid any amounts by way of rent, and that is so even though the respondents’ accounts record that rent was paid by her. She has explained that she and the first defendant agreed to “cancel” the RTA, as the first defendant said his father had changed his mind about moving out.

9. [23]

   The relief claimed in the ASOC relevantly includes damages of some $490,000, being the amount she loaned to the first defendant; judgment for a sum of $8200 which the applicant alleges she deposited into a bank account which was then misappropriated by the first defendant; interest on those sums; and aggravated and exemplary damages for participation in the conspiracy.

10. [24]

    The applicant accepted in submissions to this Court that she had had no interactions with the respondents prior to her transferring the identified sums at the instigation of the first defendant. She voluntarily signed an RTA. Whether or not that was done under some kind of undue influence or pressure, as she alleges, her signing the RTA was not caused by anything done by the respondents. The fact that the first respondent altered the name of the landlord on the front page of the RTA had no causal significance.

11. [25]

    Insofar as her complaint is about identity theft involving an RTA, the only alleged use made by the Pucci parties of any RTA in dealings with third parties was to assist one or more of them in obtaining a loan from Orde Financial. She accepted that she had no connection with Orde Financial. There is no suggestion it is making any claim against her. If Orde Financial was misled, as the applicant has alleged, that is a matter for it to complain about, not her. That such a loan was made caused her no loss. Further, as noted, she has paid no rent. Put simply, the RTAs lead nowhere in terms of the claimed loss.

12. [26]

    In her written reply submissions in this Court the applicant sought to address the issue as follows (emphasis in original):

13. [27]

    The difficulty with these arguments is that the applicant did enter an RTA, doing so without having interacted with the respondents. That the RTA was at some stage altered by the first respondent did not affect its alleged use by some of the Pucci defendants to ensnare her in the manner she alleges.

14. [28]

    When the causal problem was raised with the applicant in this Court, she referred to other parts of the ASOC in which she had pleaded – contrary, she indicated, to the apparent view of the primary judge – that the first respondent was part of the “wider conspiracy” against her. In particular, she referred to parts of what is pleaded at [1] of the ASOC, in which she identifies and lists characteristics of each of the parties. The characteristics listed with respect to the first respondent at [1(k)] include relevantly that she was a “Money Mule” for the first defendant and his father; that she had “admitted her contribution to this conspiracy”, having provided the applicant with a ledger account relating to the tenancy arrangements; that she “facilitated the movement, concealment and laundering of funds in connection with those tenancy arrangements”; that she “knowingly conspired” with the first, second, third, sixth, eleventh and fifteenth defendants against the applicant and “benefited, directly or indirectly, from the proceeds of fraud, impersonation, and other lawful acts committed against” the applicant; and that her “cumulative acts and omissions … have caused the Plaintiff substantial emotional, psychological, and reputational harm”.

15. [29]

    This part of the ASOC does not advance the matter. The sub-paragraph is summarising the case sought to be made against the first respondent, which case is then spelt out at [156]-[162] of the ASOC, being the paragraphs on which the primary judge focused. None of the characteristics identified at [1(k)] set out a case of how the conduct of the first respondent was a cause of the loss and damages for which she claims. With respect to the allegation of the first respondent having benefitted from the conspiracy, the particulars given for that allegation do not identify any benefit.

16. [30]

    The applicant also referred to [39] and [149] of the ASOC. Those paragraphs allege that the third and sixth defendants, respectively, were involved in unlawfully using the applicant’s identity to forge tenancy agreements so as to fabricate income. Again, those allegations do not address the issue of linking the alleged conduct of the respondents to the loss and damage claimed.

17. [31]

    In her draft notice of appeal the applicant indicates she seeks to rely on “fresh evidence”. That evidence is: (a) bank statements for the second respondent, which had been provided to the applicant by Ms Dias after the decision in Aslan (No 4); and (b) some email correspondence involving Ms Dias and a software company about the operation of the second respondent’s property management system, received in February of this year. The applicant had sought to make use of the bank statements in her re-opening application before the primary judge, but his Honour considered that no proper basis to reopen was established (see Aslan (No 5)).

18. [32]

    The first respondent sought to argue that this evidence did not have the characteristics required for receipt of further evidence pursuant to s 75A(8) of the Supreme Court Act 1970 (NSW) such that this Court should not receive it. The argument misunderstood the position. As s 75A(1) states, that provision “applies to an appeal to the Court and to an appeal in proceedings in the Court”. An application for leave to appeal is not an appeal: Mohareb at [24]; see also, analogously, Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [112] and [119]. When determining an application for leave to appeal the Court is exercising “a broad discretionary power, guided by considerations relevant to the interests of justice, and which is in exercise of a provision meant to serve as a gateway mechanism to determine whether a full hearing of the appeal is appropriate”: Mohareb at [24]. Reflecting the nature of that power, this Court has a wide discretion as to the evidence that may be considered. Analogously, the High Court may receive further evidence when considering whether to grant special leave to appeal, even though (unlike this Court) it is incapable of receiving further evidence for the purposes of determining the appeal itself.

19. [33]

    Of course, in a case such as this it would be open and appropriate for a respondent to argue that the evidence would not meet the requirements of s 75A(8) if leave to appeal was granted, such as to undermine the significance of the evidence in considering whether to grant leave to appeal. If the application for leave to appeal and the appeal were being heard concurrently then the s 75A(8) issue would be central. In this matter it is not necessary to address the admissibility issue.

20. [34]

    The applicant summarised the significance of the fresh evidence as follows (emphasis in original):

21. [35]

    The difficulty with these claims is that they are not responsive to the manner in which the primary judge determined the summary judgment application, whereby his Honour expressly assumed the truth of the allegations pleaded against the respondents and was not resolving any evidentiary dispute. That there might be further evidence offering some support for those allegations is not to the point.

22. [36]

    The applicant sought to meet that objection by arguing the following (emphasis in original):

23. [37]

    This argument amounts to seeking to reinforce the applicant’s claims. Doing so is unnecessary and immaterial, given that the primary judge assumed the truth of those claims. The fresh evidence, if admitted, could not undermine his Honour’s conclusion.

24. [38]

    In her draft notice of appeal the applicant asserts that the primary judge denied her procedural fairness in four ways. None of the complaints has merit.

25. [39]

    First, she says that his Honour had indicated that “leave to amend the Statement of Claim would remain open until after the determination on dismissal” of the respondents, but this course was not followed. It is not apparent what statement his Honour is said to have made. On 30 July 2025 orders were made which included that the applicant was to serve on all defendants by email “any proposed amended statement of claim” by 7 August 2025; that any defendant seeking that the claim against them be dismissed was to explain why to the applicant; and if agreement was not reached, then the dismissal applications were to be heard on 27 August 2025. As noted, it seems that the ASOC was provided to the parties on or about 26 August 2025.

26. [40]

    When the matter came on for hearing of the applications on 27 August 2025 it seems the applicant was not ready to deal with all of the arguments. As the primary judge said in his ex tempore judgment delivered that day, “[a]s against the tenth defendant, the plaintiff indicated that she was not ready to proceed for reasons which are not necessary to repeat”: Aslan (No 3) at [5]. As a result “[t]he application to dismiss or strike out by the tenth defendant has been stood over for further hearing on 10 September” (ibid). It is hard to see how the applicant could have been any doubt about what would then be at issue.

27. [41]

    In her reply submissions in this Court she refers to having been “engaged in an iterative pleading process under the Court’s supervision”. Whilst some allowance must be made for a litigant representing themselves, that does not mean endless chances to change a pleading. In any event, the applicant has not identified to this Court any way in which she wished to change the ASOC so as to answer the difficulties raised.

28. [42]

    Second, the applicant complains that the primary judge erred “by relying on the supplementary affidavit of the [first respondent] filed on the morning of the dismissal hearing”, in circumstances where she was denied a chance to consider and respond to that affidavit. As noted above (at [21]), an affidavit of the first respondent was filed at 8:13am on the morning of the hearing on 10 September 2025. The problem with this complaint is the same one as arises in relation to the fresh evidence point: the primary judge’s decision did not turn on evidence. Moreover, as his Honour noted in Aslan (No 5) at [10], no application for an adjournment was made at the hearing on 10 September 2025. In any event, it seems strange for the applicant to complain about this affidavit where she herself seeks to rely on the first respondent’s admission contained in it that she altered the front page of the RTA.

29. [43]

    Third, the applicant asserts it was unfair to have asked her questions about “technical real estate practices” when Ms Dias, a real estate agent, was present in court. This complaint misunderstands the process of litigation. It is unsurprising and entirely proper for a judge to ask a litigant or their representative to explain an aspect of their case. It would be unorthodox, to put it mildly, to start peppering people sitting in the court room with such questions.

30. [44]

    Fourth, the applicant complains that the primary judge failed to resolve certain conflicts in the evidence. There was no reason for his Honour to do so.

31. [45]

    The applicant complained of “discretionary error”. Insofar as this was addressed to the summary dismissal order it appears to be a catch-all ground relating to the other grounds raised, adding nothing to the analysis. The applicant did make a brief, distinct attack in oral submissions on the gross sum costs order made in Aslan (No 5). The argument seemed to be that the primary judge erred in awarding costs to the first respondent given “misleading evidence” said to have been filed and served by the first respondent, which evidence subsequently was undercut by the first respondent’s affidavit filed on 10 September 2025.

32. [46]

    As was said in John Anthony Arena Pty Ltd v Franpina Developments Pty Ltd [2022] NSWCA 139:

33. [47]

    Here, the argument put by the applicant seems to raise arguments about the merits of the decision of the primary judge ordering that the applicant pay the costs of the first respondent. Yet costs generally follow the event: UCPR, r 42.1. Here, the event was the primary judge upholding the first respondent’s application that the proceedings against her and the second respondent be dismissed. It is thus unsurprising his Honour made such an order. Complaints about the significance of the evidence provided by the first respondent are not very material given the manner in which his Honour resolved the dispute.

Conclusion and orders

1. [48]

   A defendant faces a substantial persuasive burden in seeking that a claim be summarily dismissed pursuant to r 13.4 of the UCPR. As the primary judge had said in Aslan (No 3) at [13], the power summarily to dismiss proceedings should be exercised “cautiously and sparingly”. In this case the primary judge carefully considered the issue. No error has been shown in the core part of his Honour’s analysis, relating to loss and damage. The claimed fresh evidence can make no difference to the conclusion reached. There was no procedural unfairness. The applicant has not established a reasonably clear injustice meriting a grant of leave to appeal with respect to the dismissal decision made in Aslan (No 4). Nor has any such injustice been established with respect to the gross sum costs order made in Aslan (No 5).

2. [49]

   Time for filing the application should be extended. Leave to appeal should be refused. There is no reason that costs should not follow the event in this Court.