Aslan v Pucci (No 5)

This matter comes before me today for the hearing of two applications.

Pursuant to a motion filed on 10 November 2025, the tenth defendant seeks an order that the costs be paid by the plaintiff on a gross sum basis. The costs to which the tenth defendant is referring are the costs that I ordered the plaintiff to pay in my judgment of 10 September 2025 (Aslan v Pucci (No 4) [2025] NSWSC 1047).

The second application, which to a certain extent is responsive to the tenth defendant’s application, is brought by the plaintiff. Pursuant to a motion dated 14 November 2025, the plaintiff seeks a number of orders all to the same effect, being that I should strike out or disregard the earlier evidence of the tenth and fifteenth defendants (that is, the evidence on the tenth defendant’s application for dismissal) and that I should set aside the earlier orders I made dismissing the case against the tenth and fifteenth defendants.

I will deal with the plaintiff’s application firstly because, if the plaintiff succeeds in her application, the earlier orders I made about costs will be set aside.

In support of her application, the plaintiff relies on her own affidavit of 14 November 2025. In that affidavit, she asserts that the earlier orders made dismissing the case against the tenth and fifteenth defendants were made on the basis of materially false and misleading affidavit evidence filed by both the tenth and fifteenth defendants. Exhibited to the plaintiff’s affidavit are documents which purport to be emails from Berta Diaz dated 31 October 2025 and a copy of some bank statements provided to the plaintiff subsequent to 10 September 2025.

I once again observe that the plaintiff is representing herself and, whilst the basis of her application to set aside my earlier orders was not properly articulated in the notice of motion, doing the best I can and having regard to the written and oral submissions filed by the plaintiff, I take it that the plaintiff is asserting that the tenth and fifteenth defendants were engaged in fraud in providing evidence in support of the earlier applications pursued by the tenth and fifteenth defendants. That is, the plaintiff seeks to rely on evidence not available to her in September 2025, which she has now obtained for the purposes of setting aside the earlier orders.

I thus take this to be an application under r 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

As set out in r 36.15, a judgment or order of the Court may, on sufficient cause being shown, be set aside by order of the Court, if the judgment was given or entered or the order was made irregularly, illegally or against good faith. I understand the plaintiff to be asserting that the tenth defendant adduced evidence which was fraudulent in support of her earlier application and that, in those circumstances, I should set aside the orders and allow the plaintiff to continue with her case against the tenth and fifteenth defendants.

The plaintiff also submitted that she was only provided with submissions or other documents shortly before the last hearing and did not have a proper opportunity to prepare or deal with the documents relied upon by the tenth defendant.

However, no application was made for an adjournment on the last occasion. It is now too late for the plaintiff to be asserting that she needed more time to deal with the matters raised on the hearing on 10 September 2025.

As is well known, the Court has power to set aside a judgment obtained not in good faith, which would include a judgment obtained through fraud. The point raised by the plaintiff is that, having regard to the documents she has obtained subsequent to 10 September 2025, the tenth defendant’s earlier statement about receipt of monies dealing with the lease should be viewed as false. The plaintiff says that having regard to the bank statements, it is clear that it was the first defendant who paid money allegedly paid by her.

Similarly, she says that the tenth defendant’s suggestion that the entries in the trust account ledger were merely populated from the bank account statements cannot be right. This is because, according to the documents now provided by the plaintiff, there was nothing which would suggest that she paid the monies payable under the lease.

She may be right about that. The documents do not support the proposition that the real estate agency was receiving money from her.

However, the circumstances in which a judgment of the Court may be set aside are limited. Judgments of the Court are normally considered to be final. Should a party be aggrieved by a Court judgment, that party may appeal to the Court of Appeal.

I am obviously not suggesting that occur in this case, but that is always a matter for the party aggrieved by a judgment of the Court.

Yet, the Court does have power to set aside its own judgments. That power arises in the circumstances of this case under r 36.15. The plaintiff submits that in circumstances in which she has adduced evidence of fraud on the part of the tenth defendant, I should set aside the earlier orders dismissing the proceedings and allow her to proceed with the case against the tenth and fifteenth defendants.

The problem with that submission is that, as I said in my judgment of 10 September 2025, I have already assumed (for the purposes of the earlier application) that which the plaintiff asserts, being that the tenth and fifteenth defendants were involved in some fraudulent activity.

In particular, I refer to this at [22]-[30] of my judgment of 10 September 2025. Further, at [52] I stated that, “I will assume for the purposes of this application the accuracy of what the plaintiff says about their conduct” meaning the conduct in particular of the tenth and fifteenth defendants.

The evidence adduced by the plaintiff today is to the same effect, that is, to the effect that the tenth and fifteenth defendants have been engaged in fraudulent conduct, with the purpose of inducing her to lend the money to the Puccis or for the purposes of identity theft.

In the circumstances, although r 36.15 may allow a judgment to be set aside when it has been induced by fraud, r 36.15 does not assist the plaintiff in the particular circumstances of this matter.

Adducing further evidence that the tenth defendant was engaged in fraud (if that be so, and I am not making any finding to that effect) does not provide a basis for setting aside the judgment.

Further, as I say at [55] of my judgment of 10 September 2025, there is no pleading against the tenth and fifteenth defendants that they were engaged in the wider conspiracy.

In oral submissions today, the plaintiff indicated that she was pursuing such a case. However, that is not evident from the statement of claim and one of the grounds on which I dismissed the case is that involvement of the tenth defendant was not pleaded despite the plaintiff already being given an opportunity to re-plead her case by way of an amended statement of claim.

In the circumstances, the application pursued by the plaintiff to set aside the orders I made against the tenth and fifteenth defendants on 10 September 2025 must be dismissed.

The second application is pursued by the tenth defendant. The tenth defendant seeks an order for a lump sum costs order.

I received written submissions from the tenth defendant in support of the application. The tenth defendant relies on the affidavit of Jeremy Dylan Bodon, dated 10 November 2025. Mr Bodon is a solicitor and employee of the solicitors for the tenth defendant. Annexed to Mr Bodon’s affidavit are copies of the invoices from his firm as well as the invoices of Ms Robertson of counsel.

The tenth defendant is not insured. She has paid all of the fees so far. She submits that in circumstances of the difficulties dealing with a self-represented person and having regard to the complexities of the matter, it would be appropriate that a lump sum cost order be made.

In accordance with s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the Court may may make a gross sum costs order.

The principles which should be applied were set out by Beazley P in Hamod v New South Wales [2011] NSWSC 375 at [813]-[820]:

Unfortunately, the plaintiff was ill-equipped to respond to the application for a lump sum costs order. Despite her intelligence and ability to articulate the case she wishes to pursue, she has no knowledge of the principles which might be applied in determining costs. That is understandable but does not mean that no order should be made. I must deal with the application on its merits. She was given proper notice of the application.

There are really two issues for consideration, being:

The plaintiff’s principal response to the application was to point to references to other parties in the solicitor’s invoices. However, it became clear that, to the extent that there was any reference to other parties or doing something for other parties, the solicitors have not charged the tenth defendant for that work. To the extent there is reference to the tenth defendant dealing with other parties, that work was part of the process of representing the tenth defendant in response to the plaintiff’s claim.

In my view, a number of factors are particularly relevant. They include:

In these circumstances, it is appropriate that I exercise the Court’s discretion and make a gross sum cost order pursuant to s 98(4)(c).

The Court has a broad discretion in making such an order. I have reviewed the invoices provided and paid by the tenth defendant. As I said during the hearing, the order I made was only that costs be paid on a party-party basis. There is no order for indemnity costs. I have regard to the fact that in making a lump sum costs order, I am depriving the plaintiff of an opportunity to challenge the assessment. However, in saying that, I have regard also to my own knowledge and experience in considering costs.

I propose to apply a discount of 40%. That is, the tenth defendant will be entitled to an order for costs of 60% of the amounts referred to in the affidavit of Mr Bodon.

I make the following orders, including further case management orders having regard to submissions made by the plaintiff and the Pucci defendants: