Practice and Procedure


PUBLISHED May 1, 2003

From the evidence, the court was able to infer that the third, fourth, fifth, sixth and seventh defendants were conspirators in a fraud from the outset and therefore were liable for the sum sought.Claimants' application under CPR 24.2 for summary judgment against the third ('D3'), fourth ('D4'), fifth ('D5'), sixth ('D6') and seventh ('D7') defendants. The claimants ('C') owned 75 per cent of the shares in a Brazilian Bank, Banco Noroeste SA ('the bank'). In 1997 those shares were sold to a Brazilian subsidiary of a Spanish bank for $500 million. During the due diligence exercise it became apparent that a massive fraud had been perpetrated on the bank, resulting in a loss of $242 million. All claims for wrongdoing were assigned back to the claimant shareholders and proceedings were commenced in various jurisdictions. C claimed there had been a misapplication of the bank's funds involving improper transfers of money, the ultimate recipients of which were self-styled Nigerian chieftains Odinigwe and Anajpave ('A'). C sought damages of over $190 million plus interest. A was killed in October 1998 leaving his widow, D3, and brother, D4 as his personal representatives. D5, D6 and D7 were companies allegedly controlled by A and D3. The above defendants had taken no part in the proceedings since an abandoned challenge to the jurisdiction. Consequently, service of the particulars had not been acknowledged nor had a defence been served.HELD: It was beyond all reasonable doubt that the bank's monies had been misapplied pursuant to a conspiracy. As A was a conspirator and had been so since the beginning of the fraud, D3 and D4 as executors of A's estate were liable for the amounts claimed. D3 as a director of the companies was also personally liable as a conspirator from the start. D5, D6 and D7 also were conspirators from the beginning and throughout. Accordingly, there was no real prospect of any of the above defendants refuting the claims advanced by C, nor was there any other compelling reason why the case should be disposed of at trial. Each of the above defendants was liable for the sum sought.Judgment accordingly.[For related proceedings see Mattos Junior & 3 Ors v MacDaniels & Ors (2002) LTL 22/11/2002 EXTEMPORE and Mattos Junior & Ors v MacDaniels & Ors (2002) Independent, October 21, 2002