Commissioner of the Australian Federal Police - s 19 application - [2015] NSWSC 1477

Supreme Court

New South Wales

Medium Neutral Citation: Commissioner of the Australian Federal Police - s 19 application [2015] NSWSC 1477
Hearing dates: 8 October 2015
Date of orders: 08 October 2015
Decision date: 08 October 2015
Jurisdiction: Common Law
Before: Davies J
Decision:
Upon the Plaintiff providing, on behalf of the Commonwealth, the usual undertaking as to costs and damages, the court orders that:

Preliminary orders

1. Pursuant to rule 6.15 of the Uniform Civil Procedure Rules 2005 (NSW), the summons be made returnable immediately.

2. Pursuant to sections 26(4) and 182(2) of the Proceeds of Crime Act 2002 (Cth) (the Act) and rule 18.2(2) of the Uniform Civil Procedure Rules 2005 (NSW), the application of the Plaintiff for the relief sought in paragraphs 3 to 9 of the summons be heard and determined without notice.

Restraining orders

3. Pursuant to section 19 of the Act, the property specified in Schedule One below must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

4. Pursuant to section 19 of the Act, the property specified in Schedule Two below must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

5. Notwithstanding order 3 above, Westpac Banking Corporation may deal with the property listed in Schedule One in accordance with registered mortgage AI133027.

Custody and Control Orders

6. Pursuant to section 38 of the Act, the Official Trustee in Bankruptcy (Official Trustee) is to take custody and control of the property specified in Schedule One below.

7. Pursuant to section 38 of the Act, the Official Trustee is to take custody and control of the property specified in Schedule Two below.

Provision of Statements

8. Pursuant to section 39(1)(ca) of the Act, Johannes Tjongosutiono is directed to give to the Commissioner of the Australian Federal Police or his nominated delegate within 28 days of the date of service of these orders a sworn statement, in the form set out in Schedule Three below setting out:

a) all of his interests in property within the meaning of the Act, worldwide, not including any asset or interest in property with a value of less than AUD 5,000 as at the date of these orders; and

b) all of his liabilities, worldwide, not including any liability with a value of less than AUD5,000 as at the date of these orders.

Examination orders

9. Pursuant to section 180 of the Act, Johannes Tjongosutiono is to be examined about his own affairs.

Other orders

10. The proceedings be listed before the Common Law Registrar for further directions on 24 February 2016 at 9am.
11. Liberty to restore on 3 days’ written notice.
12. These orders be entered forthwith.

SCHEDULE ONE
1. Real property located 610D/5 Pope Street, Ryde NSW 2112, being Lot 37 in Strata Plan 87206, held in the name of Johannes Tjongosutiono.

2. Funds held in or available for withdrawal, including any re-draw, from Westpac Banking Corporation Rocket Investment Loan Account number 037-164 558413 held in the name of Johannes Tjongosutiono.

3. Funds standing to the credit of Westpac Banking Corporation Choice Offset Account number 732-159 673075 (also referred to as the Deposit Account) in the name of Johannes Tjongosutiono.

SCHEDULE TWO

1. Funds standing to the credit of Commonwealth Bank of Australia Term Deposit Account number 2000 50747336 in the name of Johannes Tjongosutiono.

2. Funds standing to the credit of Commonwealth Bank of Australia Term Deposit Account number 2000 50747328 in the name of Johannes Tjongosutiono.

3. Funds standing to the credit of Commonwealth Bank of Australia Term Deposit Account number 2000 50747301 in the name of Johannes Tjongosutiono.

4. Funds standing to the credit of Commonwealth Bank of Australia Netbank Saver account 2000 16143045 in the name of Johannes Tjongosutiono.

SCHEDULE THREE

Form of Sworn Statement

1. Provide full particulars of the nature and extent of your property or where applicable, the property of the company of which you are a director, including in relation to each item of property:

(a) description of the property, including the nature of your interest in it and, where possible, the estimated value;
(b) the location of the property;
(c) the name of the person or institution in whose custody title documents in respect of the property are believed to be;
(d) the approximate date of acquisition of the property;
(e) income earned from the property;
(f) a full description of any liability in relation to the property and the amount of the liability;
(g) the amount and date of payments made to discharge any liability in relation to the property;
(h) the source of the payments referred to in subparagraph 1(g) above; and
(i) the name of the person or institution to which the liability is owed.

2. Provide full particulars of your current liabilities or where applicable, the liabilities of the company of which you are a director, including, in relation to each liability:

a) full description of each liability including the nature of the liability and the amount of the liability; and
b) the name of the person or institution to which the liability is owed.

3. Provide full particulars of any dispositions or dealing with property since 1 January 2013 to date including:
a) description of the property disposed of or dealt with, including the nature of the disposition or dealing and any proceeds received as a result of the disposition or dealing;
b) the location of the property;
c) the date of the disposition or dealing;
d) the name of the person or institution to which the property was transferred;
e) the amount and date of payments made to discharge any liability in relation to the property; and
f) the source of the payments referred to in subparagraph 3(e) above.
Catchwords: CRIMINAL LAW – proceeds of crime – restraining orders
Legislation Cited: Proceeds of Crime Act 2002 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Category: Procedural and other rulings
Parties: The Commissioner of the Australian Federal Police (Applicant)
Representation:
Counsel:
M Akbar (Applicant)
Solicitors:
Proceeds of Crime Litigation, Australian Federal Police (Applicant)

File Number(s): 2015/293932

Judgment

This is an application under s 19 of the Proceeds of Crime Act (Cth) in relation to property more particularly identified in schedules 1 and 2 of the summons. The application is supported by an affidavit of Glyn Evan Roberts sworn 8 October 2015.
Section 19 of the Act requires a court with proceeds jurisdiction to make a restraining order under the section if a Proceeds of Crime Authority applies for the order, there are reasonable grounds to suspect that the property is the proceeds of an indictable offence of the Commonwealth or an instrument of a serious offence, the application for the order is supported by an affidavit of an authorised officer stating that the authorised officer suspects that the property is the proceeds of the offence or the property is an instrument of the offence and the Court is satisfied that the authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds.
The application has been made by a Proceeds of Crime Authority. I have read the affidavit of Mr Roberts and I am satisfied that the suspicions that he more particularly refers to in paragraph 9 of his affidavit are held on reasonable grounds. I am satisfied that the offences identified in that affidavit may have been committed.
The Applicant has asked the Court pursuant to s 26(4) of the Act to consider the application without notice being given to the person named in Mr Robert's affidavit as being in possession of property. The Court is required to consider the application without notice when requested to do so by the responsible authority.
I note the undertaking of Mr Akbar on behalf of the Commonwealth and on that basis I make orders in terms of paragraphs 1 to 9 of the short minutes of order. I stand the proceedings over before the Common Law Registrar on 24 February 2016 at 9:00am. Liberty to restore on three days’ notice. These orders are to be entered forthwith.

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Decision last updated: 09 October 2015

Medium Neutral Citation:	Commissioner of the Australian Federal Police - s 19 application [2015] NSWSC 1477
Hearing dates:	8 October 2015
Date of orders:	08 October 2015
Decision date:	08 October 2015
Jurisdiction:	Common Law
Before:	Davies J
Decision:	Upon the Plaintiff providing, on behalf of the Commonwealth, the usual undertaking as to costs and damages, the court orders that: Preliminary orders 1. Pursuant to rule 6.15 of the Uniform Civil Procedure Rules 2005 (NSW), the summons be made returnable immediately. 2. Pursuant to sections 26(4) and 182(2) of the Proceeds of Crime Act 2002 (Cth) (the Act) and rule 18.2(2) of the Uniform Civil Procedure Rules 2005 (NSW), the application of the Plaintiff for the relief sought in paragraphs 3 to 9 of the summons be heard and determined without notice. Restraining orders 3. Pursuant to section 19 of the Act, the property specified in Schedule One below must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. 4. Pursuant to section 19 of the Act, the property specified in Schedule Two below must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. 5. Notwithstanding order 3 above, Westpac Banking Corporation may deal with the property listed in Schedule One in accordance with registered mortgage AI133027. Custody and Control Orders 6. Pursuant to section 38 of the Act, the Official Trustee in Bankruptcy (Official Trustee) is to take custody and control of the property specified in Schedule One below. 7. Pursuant to section 38 of the Act, the Official Trustee is to take custody and control of the property specified in Schedule Two below. Provision of Statements 8. Pursuant to section 39(1)(ca) of the Act, Johannes Tjongosutiono is directed to give to the Commissioner of the Australian Federal Police or his nominated delegate within 28 days of the date of service of these orders a sworn statement, in the form set out in Schedule Three below setting out: a) all of his interests in property within the meaning of the Act, worldwide, not including any asset or interest in property with a value of less than AUD 5,000 as at the date of these orders; and b) all of his liabilities, worldwide, not including any liability with a value of less than AUD5,000 as at the date of these orders. Examination orders 9. Pursuant to section 180 of the Act, Johannes Tjongosutiono is to be examined about his own affairs. Other orders 10. The proceedings be listed before the Common Law Registrar for further directions on 24 February 2016 at 9am. 11. Liberty to restore on 3 days’ written notice. 12. These orders be entered forthwith. SCHEDULE ONE 1. Real property located 610D/5 Pope Street, Ryde NSW 2112, being Lot 37 in Strata Plan 87206, held in the name of Johannes Tjongosutiono. 2. Funds held in or available for withdrawal, including any re-draw, from Westpac Banking Corporation Rocket Investment Loan Account number 037-164 558413 held in the name of Johannes Tjongosutiono. 3. Funds standing to the credit of Westpac Banking Corporation Choice Offset Account number 732-159 673075 (also referred to as the Deposit Account) in the name of Johannes Tjongosutiono. SCHEDULE TWO 1. Funds standing to the credit of Commonwealth Bank of Australia Term Deposit Account number 2000 50747336 in the name of Johannes Tjongosutiono. 2. Funds standing to the credit of Commonwealth Bank of Australia Term Deposit Account number 2000 50747328 in the name of Johannes Tjongosutiono. 3. Funds standing to the credit of Commonwealth Bank of Australia Term Deposit Account number 2000 50747301 in the name of Johannes Tjongosutiono. 4. Funds standing to the credit of Commonwealth Bank of Australia Netbank Saver account 2000 16143045 in the name of Johannes Tjongosutiono. SCHEDULE THREE Form of Sworn Statement 1. Provide full particulars of the nature and extent of your property or where applicable, the property of the company of which you are a director, including in relation to each item of property: (a) description of the property, including the nature of your interest in it and, where possible, the estimated value; (b) the location of the property; (c) the name of the person or institution in whose custody title documents in respect of the property are believed to be; (d) the approximate date of acquisition of the property; (e) income earned from the property; (f) a full description of any liability in relation to the property and the amount of the liability; (g) the amount and date of payments made to discharge any liability in relation to the property; (h) the source of the payments referred to in subparagraph 1(g) above; and (i) the name of the person or institution to which the liability is owed. 2. Provide full particulars of your current liabilities or where applicable, the liabilities of the company of which you are a director, including, in relation to each liability: a) full description of each liability including the nature of the liability and the amount of the liability; and b) the name of the person or institution to which the liability is owed. 3. Provide full particulars of any dispositions or dealing with property since 1 January 2013 to date including: a) description of the property disposed of or dealt with, including the nature of the disposition or dealing and any proceeds received as a result of the disposition or dealing; b) the location of the property; c) the date of the disposition or dealing; d) the name of the person or institution to which the property was transferred; e) the amount and date of payments made to discharge any liability in relation to the property; and f) the source of the payments referred to in subparagraph 3(e) above.
Catchwords:	CRIMINAL LAW – proceeds of crime – restraining orders
Legislation Cited:	Proceeds of Crime Act 2002 (Cth) Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	The Commissioner of the Australian Federal Police (Applicant)
Representation:	Counsel: M Akbar (Applicant) Solicitors: Proceeds of Crime Litigation, Australian Federal Police (Applicant)
File Number(s):	2015/293932