Australian Federal Police v AD (No 2)

[2015] NSWSC 1756

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Australian Federal Police v AD (No 2) [2015] NSWSC 1756
Hearing dates:	28 October 2015
Date of orders:	28 October 2015
Decision date:	28 October 2015
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	See [8]
Legislation Cited:	Proceeds of Crime Act 2002 (Cth)
Category:	Consequential orders (other than Costs)
Parties:	Ipswich City Council (Applicant on Motion) The Commissioner of the Australian Federal Police (Plaintiff/Respondent on Motion) Bristol Wattle Properties (Owner of property) AD (Defendant)
Representation:	Counsel: Ms Mahony (Applicant on Motion) Ms A. Jessep (Plaintiff/Respondent on Motion) Mr Polyzidis (Bristol Wattle Properties Pty Ltd) No appearance (Defendant)
File Number(s):	2012/108692

EX TEMPORE JUDGMENT (REVISED)

1. I am dealing with a second application in the matter of the Commissioner of the Australian Federal Police v Dixon. The Ipswich City Council is moving for an ancillary order under s 39 of the Proceeds of Crime Act 2002 (Cth) to vary the restraining order made on 5 April 2012 (as varied, apparently, on 20 November 2012) to exclude certain property within its borders from the order. The Commissioner neither consents nor objects to the relief sought.

2. Ms Mahony of Counsel, appearing for the Ipswich City Council, moves on the affidavit of Anthony Thomas Dunleavy sworn on 4 September 2015 and filed on the 9th. Mr Dunleavy is a Queensland solicitor employed as the City Council’s in-house solicitor. The property, the subject of the application for variation, is a property known as ABC XXXXX X Drive, Collingwood Park, Queensland.

3. There are rates outstanding in respect of that property, which as at 4 September 2015 total $370,960.26. The Council has a judgment in the Magistrates Court at Ipswich in respect of about $45,000 of that sum together with an amount of scale costs.

4. Some of the rates go back before 30 September 2012, and the judgment I have referred to was obtained on 30 April 2014. I am informed that under s 270 of the Local Government Act 2009 (Qld), which is the general regulation making power, and under the provisions of ss 140 and 141 of the Local Government Regulation 2012 (Qld), the Council may, by resolution, decide to sell the land if certain conditions are met in respect of indebtedness. Those conditions, in substance, are that part of the sum due has been overdue for more than three years if there is no judgment; if there is a judgment, that the sum has been overdue for more than one year. I am satisfied, on the evidence before me, that those conditions are satisfied.

5. From Mr Dunleavy’s affidavit, I am also satisfied that the Ipswich City Council intends to put the matter before the Council for the making of a resolution under the regulations. I am satisfied that, in all probability, such a resolution will be made or passed, in the circumstances.

6. The proposal is, in any event, that after the land is sold and the Council has recouped its indebtedness and the costs of sale, the surplus will be paid to the Official Trustee in Bankruptcy, who will take control and custody of the surplus proceeds of sale remaining after the arrears. Those funds will, of course, remain subject to the restraining order referred to.

7. I should also record that Mr Polyzidis, solicitor, appears for Bristol Wattle Properties Pty Ltd, the owner of the property. He has made it clear that he is not opposing the orders sought by the Ipswich City Council. However, the company takes issue with the Commissioner’s right to seek an order in due course for forfeiture to the Commonwealth, and he has foreshadowed the company may commence proceedings for compensation.

8. For the reasons given, I make orders in accordance with the short minutes of order handed up by Ms Mahony of Counsel, signed by me and dated today. It is unnecessary for me, I think, to say anything further about what I have said in relation to the Official Trustee. It seems to me that if the property is the subject of restraining order, the proceeds of sale are likewise subject to a restraining order. I direct that the seal of the Court be affixed to the short minutes of order, and that they may be entered forthwith.

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Amendments

27 November 2015 - replaced name with "AD" in coversheet

Decision last updated: 27 November 2015