Application by the Commissioner of the Australian Federal Police (No 3)
[2015] NSWSC 1623
•02 November 2015
Supreme Court
New South Wales
Medium Neutral Citation: Application by the Commissioner of the Australian Federal Police (No 3) [2015] NSWSC 1623 Hearing dates: 2 November 2015 Date of orders: 02 November 2015 Decision date: 02 November 2015 Jurisdiction: Common Law Before: Schmidt J Decision: Orders made in terms of MFI 8.
Catchwords: CIVIL LAW – proceeds of crime – forfeiture – costs Legislation Cited: Proceeds of Crime Act 2002 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Application by the Commissioner of the Australian Federal Police (No 2) [2015] NSWSC 1447 Category: Costs Parties: The Commissioner of the Australian Federal Police (Plaintiff)
Yixiong Chen (Applicant on Motion)
Liming Hu (Applicant on Motion)
H & K Finance Services Pty Ltd ACN 153 192 324 (Applicant on Motion)Representation: Counsel:
Solicitors:
Ms E A Cheeseman SC with Mr K S Anderson (Plaintiff)
Mr D Junn (Applicant)
Australian Federal Police, Proceeds of Crime Litigation (Plaintiff)
Dixon Holmes Lawyers (Applicant)
File Number(s): 2014/170251 Publication restriction: None
EX TEMPORE Judgment
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HER HONOUR: On 1 October 2015, I gave judgment in respect of motions brought by Mr Chen, Mr Hu and the company, H & K Finance Services Pty Ltd under the Proceeds of Crime Act 2002 (Cth), making orders dismissing the applicants’ motions and indicating that unless the parties approached to be heard within 14 days, the applicants were to pay the Commissioner’s costs of the motions as agreed or assessed (see Application by the Commissioner of the Australian Federal Police (No 2) [2015] NSWSC 1447).
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The matter came into the list again this morning in order for the Commissioner’s application for forfeiture orders under s 49 of the Proceeds of Crime Act to be dealt with.
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It emerged then that there was no issue between the parties finally as to the making of the orders sought under s 49 of the Act, which were marked MFI 8, although initially it was Mr Hu’s position that such orders should not be made, pending pursuit of an appeal against the October decision. That stance was finally not adhered to and later today the parties have come before the Court with orders, other than as to costs, which were not opposed.
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The orders sought were supported by an affidavit sworn by Mr Chan, a litigation lawyer at the Proceeds of Crime Litigation Team of the Australian Federal Police, in which he deposed to the notice which had been given of the applications and orders sought in the proceedings to the interested parties, as well as information in relation to those persons who appeared to have an interest in the proceedings.
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In the circumstances and on the material before the Court, I am satisfied that orders pursuant to s 49 of the Act should now be made, in terms which the parties do not dispute.
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As to costs the Commissioner sought an order for costs on the usual basis. That was opposed by Mr Hu, who submitted that irrespective of what attitude he might have taken, it was necessary for the Commissioner to have satisfied the Court as to the notice requirements of the legislation and that it was relevant that at the hearing in September, he had made an effort to bring the forfeiture application forward, by concessions made by Mr Temby QC, then appearing for him.
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Those things may be accepted. Nevertheless given all that has transpired in the proceedings, including importantly this morning, when opposition to the orders sought was not adhered to, it seems to me that the circumstances are such that there should be no departure from the ordinary rule under the Uniform Civil Procedure Rules 2005 (NSW) that costs follow the event.
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In those circumstances, it is appropriate that orders be made in terms of MFI 8. I order accordingly.
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Decision last updated: 03 November 2015
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