Application by the Commissioner of the Australian Federal Police re Matter 2012/249599

[2013] NSWSC 1444

Supreme Court

New South Wales

Medium Neutral Citation:

Application by the Commissioner of the Australian Federal Police re Matter 2012/249599 [2013] NSWSC 1444

Hearing dates:

18 September 2013

Decision date:

18 September 2013

Jurisdiction:

Common Law

Before:

Davies J

Decision:

Pursuant to s 49 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule One to the Summons is forfeited to the Commonwealth.

SCHEDULE ONE

1. The sum of AUD199,750 seized by the Australian Federal Police on 7 August 2012 being items 4(AUD79,850), 5 (AUD70.000) and 6(AUD49,900) of Australian Federal Police Property Seizure Record (PSR seizure A231871).

2. Funds to the sum of AUD200.000 held in or available for withdrawal from Commonwealth Bank of Australia in the name of Credit Investment Pty Ltd being Commonwealth Bank account numbered 06 2028 10702480.

3. Funds to the sum of AUD794,186.05 held in or available for withdrawal from Westpac Banking Corporation in the name of Credit Investment Pty Ltd being Westpac Banking Corporation account numbered 032-005 368329.

Legislation Cited:

Proceeds of Crime Act 2002

Category:

Interlocutory applications

Parties:

Commissioner of the Australian Federal Police (Plaintiff)

Representation:

Counsel:
L Booth (Plaintiff)
Solicitors:
Proceeds of Crime Litigation, Australian Federal Police

File Number(s):

2012/249599

Judgment

1. On 30 August 2012 I made restraining orders under s 19 of the Proceeds of Crime Act 2002 and orders under ss 38 and 39 of the Act. The Commissioner Australian Federal Police now applies for order 4 in the Summons filed 10 August 2012 to be made. That is an order pursuant to s 49 that the property listed in Schedule 1 be forfeited to the Commonwealth.

1. Under s 49 this Court, which has proceeds jurisdiction under the Act, must make an order that the property specified in the order is forfeited to the Commonwealth if three conditions are satisfied.

1. The first is that the application is by the responsible authority. The responsible authority, I am satisfied, is the Commissioner of the Australian Federal Police.

1. The second condition is that the restraining order has been in force for at least six months. As I have noted, the restraining order was made on 30 August 2012.

1. Thirdly, the Court must be satisfied that the authority has taken reasonable steps to identify and notify persons with an interest in the property. In that regard I have read the affidavit of Glyn Evan Roberts sworn 18 September 2013. In that affidavit Mr Roberts identifies the relevant persons who might be thought to have an interest in the property. Those persons are identified in paras 9, 10, 11 and 12 of the affidavit.

1. I am satisfied from reading Mr Roberts' affidavit that reasonable steps have been taken both to identify the persons and to notify them of the property. In three cases the individuals concerned, being You Boon Kang, Tai Huart Ong and Chit Hong Lee, have not been able to be located or contacted. I am satisfied, however, that reasonable steps have been taken to do so on the information that was available. The affidavit demonstrates that the information provided by those persons as to addresses and phone numbers was false.

1. Section 49(1)(c) also ordinarily requires the Court to be satisfied that the property is the proceeds of specified types of offences. However, that paragraph does not apply in the present case by virtue of subs (3) because no application has been made under Div 3 of Pt 2-1 of the Act for the property to be excluded from the restraining order.

1. Accordingly, I order pursuant to s 49 Proceeds of Crime Act 2002 (Cth) that the property specified in Schedule One to the Summons is forfeited to the Commonwealth.

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