Commissioner of the Australian Federal Police v Aouli - [2022] NSWSC 1052

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Commissioner of the Australian Federal Police v Aouli [2022] NSWSC 1052
Hearing dates: 4 August 2022
Date of orders: 4 August 2022
Decision date: 04 August 2022
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), this Summons be made returnable immediately.
2. Pursuant to sections 26(4) and 39(3A) of the Proceeds of Crime Act 2002 (Cth), the application for relief in prayers 3 to 22 of this Summons be heard and determined without notice.
Section 18 restraining orders
3. Pursuant to section 18(2)(a) of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule One, being property of the First Defendant, 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 18(2)(a) of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Two, being property of the First Defendant, must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.
5. Pursuant to section 18(2)(a) of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Three, being property of the First Defendant, must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.
6. Pursuant to section 18(2)(a) of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Four, being property of the First Defendant, must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.
7. Pursuant to section 18(2)(c) of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Five, being property of the Second Defendant that is subject to the effective control of the First Defendant, must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.
Section 19 restraining orders
8. Pursuant to section 19 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule One must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.
9. Pursuant to section 19 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Two must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.
10. Pursuant to section 19 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Three must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.
Third party registered interests
11.   Notwithstanding prayers 3 and 8 above, National Australia Bank Limited may deal with the property identified in Schedule One in accordance with the terms of its registered mortgage AM294.
12.   Notwithstanding prayer 4 and 9 above, Australia and New Zealand Banking Group Limited may deal with the property identified in Schedule Two in accordance with the terms of its registered mortgage 716816113.
Custody and control orders
13. Pursuant to section 38 of the Proceeds of Crime Act 2002 (Cth), the Official Trustee in Bankruptcy (Official Trustee) is to take custody and control of the property specified in Schedule One.
14. Pursuant to section 38 of the Proceeds of Crime Act 2002 (Cth), the Official Trustee is to take custody and control of the property specified in Schedule Two.
15. Pursuant to section 38 of the Proceeds of Crime Act 2002 (Cth), the Official Trustee is to take custody and control of the property specified in Schedule Three.
16. Pursuant to section 38 of the Proceeds of Crime Act 2002 (Cth), the Official Trustee is to take custody and control of the property specified in Schedule Four.
17. Pursuant to section 38 of the Proceeds of Crime Act 2002 (Cth), the Official Trustee is to take custody and control of the property specified in Schedule Five.
Ancillary orders
18. Pursuant to section 39(1) of the Proceeds of Crime Act 2002 (Cth), the First Defendant is directed to give to the Plaintiff within 28 days of the date of service of these orders a sworn statement in the form set out in Schedule Six setting out:
(a) all of his, and the Second Defendant’s, interests in property within the meaning of the Proceeds of Crime Act 2002 (Cth), worldwide, not including any asset or interest in property with a value of less than AUD5,000 as at the date of these orders; and
(b)   all of his, and the Second Defendant’s, liabilities, worldwide, not including any liability with a value of less than AUD5,000 as at the date of these orders.
19. Pursuant to section 39(1)(e)(iii) of the Proceeds of Crime Act 2002 (Cth), the following persons are to hand over to the Official Trustee (or the Official Trustee’s representative) the keys, registration papers, insurance papers and any and all other documents and/or items of equipment relating to and necessary for the proper maintenance and upkeep of the properties referred to in Schedule One, Schedule Two and Schedule Five:
(a)   the First Defendant;
(b)   the Second Defendant; and
(c)   any other person who is in possession of the said keys, registration papers, insurance papers and other documents or items or equipment.
20. Without limiting any other of the powers or duties of the Official Trustee pursuant to subsections 39(1)(e) and 39(4) of the Proceeds of Crime Act 2002 (Cth), the Official Trustee is permitted, to the extent reasonably necessary, to do any or all of the following with respect to any of the properties specified in Schedule One and Schedule Two (Real Properties):
(a)   gain access to and inspect the Real Properties with 48 hours’ notice;
(b)   secure the Real Properties;
(c)   insure any building on the Real Properties as and when required;
(d)   lease the Real Properties, including doing all things necessary in relation to any existing leases or enter into new leases;
(e)   collect all rental monies payable in connection with the Real Properties;
(f)   apply any rental income received from the Real Properties to meet any costs or expenses relating to the said property including management fees and commissions incurred in the ordinary course of business, maintenance costs, insurance, rates, land tax or municipal or statutory charges.
21.   Notwithstanding order 15, items 1, 2, and 4 of Schedule Three may continue to be held in the accounts specified in items 1, 2, and 4 respectively of Schedule Three, while still deemed to be in the custody and control of the Official Trustee, unless the Official Trustee directs otherwise.
22.   Notwithstanding order 16, the property listed in Schedule Four may continue to be held in the account specified in Schedule Four, while still deemed to be in the custody and control of the Official Trustee, unless the Official Trustee directs otherwise.
Other orders
23.   The matter is listed for directions before the Common Law Registrar on 15 September 2022.
24.   The parties have liberty to restore the matter on 3 days’ written notice.
25.   These orders be entered forthwith.
SCHEDULE ONE
In the name of Maher Aouli:
Real property located at 139 Terry Street, Connells Point NSW 2221, being Lot C in Deposited Plan 16990
SCHEDULE TWO
In the name of Maher Aouli:
Real property located at 516 Oyster Cove Promenade, Helensvale QLD 4212, being Lot 516 in Survey Plan 149218
SCHEDULE THREE
In the name of Maher Aouli:
Item 1:   Chose in action enforceable against National Australia Bank Limited in respect of bank account 082-062 817772881 held in the name of Maher Aouli, including any funds available for redraw, together with any interest earned on the balance of funds held in that account
Item 2:   Chose in action enforceable against National Australia Bank Limited in respect of bank account 082-343 843217179 held in the name of Maher Aouli, together with any interest earned on the balance of funds held in that account
Item 3:   Chose in action enforceable against Australia and New Zealand Banking Group Limited in respect of bank account 012-081 400489159 held in the name of Maher Aouli, including any funds available for redraw, together with any interest earned on the balance of funds held in that account
Item 4:   Chose in action enforceable against Australia and New Zealand Banking Group Limited in respect of bank account 012-081 399897066 held in the name of Maher Aouli, including any funds available for redraw, together with any interest earned on the balance of funds held in that account
Item 5:   Chose in action enforceable against Australia and New Zealand Banking Group Limited in respect of bank account 012-325 389247166 held in the name of Maher Aouli, together with any interest earned on the balance of funds held in that account
SCHEDULE FOUR
In the name of Maher Aouli:
Chose in action enforceable against National Australia Bank Limited in respect of bank account 082-062 817678799 held in the name of Maher Aouli, together with any interest earned on the balance of funds held in that account
SCHEDULE FIVE
In the name of Build Line Consulting Pty Ltd:
Mercedes-Benz M-AMG G63 FL motor vehicle VIN W1N4632762X387028 with registration plate END87D (NSW)
SCHEDULE SIX
1.   Provide full particulars of the nature and extent of your property or where applicable, the property of any 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 any 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 disposition or dealing with property since September 2012 to the date the statement is sworn 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:
Crimes Act 1914 (Cth) s 4G
Criminal Code (Cth) ss 135.1(3), 307.1(1), 400.9(1)
Proceeds of Crime Act 2002 (Cth) ss 18, 19, 26, 39

Cases Cited:
Nil

Texts Cited:
Nil

Category: Procedural rulings
Parties: Commissioner of the Australian Federal Police (Plaintiff)
Maher Aouli (First Defendant)
Build Line Consulting Pty Ltd (Second Defendant)
Representation:
Counsel:
A Sun - Ex parte (Plaintiff)
Solicitors:
Criminal Assets Litigation, Australian Federal Police (Plaintiff)

File Number(s): 2022/229620
Publication restriction: Nil

Judgment

The plaintiff applies for restraining orders under ss 18 and 19 of the Proceeds of Crime Act 2002 (Cth). The plaintiff also seeks some ancillary orders, including custody and control orders, and orders for the provision of a sworn statement or statements in relation to the interests of the first and second defendants in the property sought to be restrained.
Sections 18 and 19 contain similar requirements for the making of restraining orders, although they are not identical. Each section provides that the Court with proceeds jurisdiction must order that property is not to be disposed of or otherwise dealt with by any person if certain requirements are established. First, both sections require that a proceeds of crime authority applies for the orders. In the present case, the application is made by the Commissioner of the Australian Federal Police, and the holder of that office is a proceeds of crime authority.
Secondly, in the case of s 18 it is a requirement that there are reasonable grounds to suspect that a person has committed a serious offence. In relation to s 19 there must be reasonable grounds, relevantly, to suspect that the property is the proceeds or instrument of an indictable offence.
Thirdly, both sections have what are called affidavit requirements. The affidavit requirements for s 18 are found in subs (3) of that section which requires the application to be supported by an affidavit of an authorised officer stating that the authorised officer suspects that the suspect committed the offence and, if the application is to restrain the property of a person other than the suspect, that the authorised officer suspects, relevantly, that the property be subject to the effective control of the suspect.
In the case of s 19 the affidavit must contain a statement by the authorised officer that the officer suspects that the property is the proceeds of the offence or, if the offence to which the order relates is a serious offence, that the property is an instrument of the offence. In relation to both sections the affidavit must include the grounds on which the authorised officer holds the suspicion.
The final requirement is, in both cases, that the Court is satisfied that the authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds.
The affidavit in support of the application is that of Warren Wing Lon Chan sworn 3 August 2022. Mr Chan deposes to the fact that the suspected offences are both indictable offences within the meaning of s 4G of the Crimes Act 1914 (Cth), and are serious offences because they are drug importation offences, money laundering offences, and loss to the Commonwealth offences. The three offences that are suspected of having been committed by the first defendant are importing a commercial quantity of a border-controlled drug contrary to s 307.1(1) of the Criminal Code (Cth), dealing with the proceeds of crime contrary to s 400.9(1) of the code, and dishonestly causing loss to the Commonwealth contrary to s 135.1(3) of the code.
Mr Chan also suspects that the property identified in his affidavit and in schs 1 to 4 of the summons is the property of the first defendant, and that the property in sch 5 is the property of a company called Build Line Consulting Pty Ltd in respect of which the first defendant is the sole director and shareholder. Accordingly, that the company is in the effective control of the first defendant.
I have read the detail contained in Mr Chan's affidavit and I note the grounds for his suspicion in relation to both what is required for the purposes of s 18 and s 19. In my opinion the suspicions of Mr Chan are suspicions held on reasonable grounds.
The Commissioner asks that the Court consider the application without notice having been given to the defendants, both in respect of the restraining orders and the ancillary orders sought. Under both s 26(4) and s 39(3A), the Court is obliged to consider such applications without notice having been given if the responsible authority requests the Court to do so.
Accordingly, these applications have been considered without notice having been given to the defendants. In the light of ss 18 and 19 having been satisfied the Court must make orders that the property not be disposed of or otherwise dealt with by any person.
I note the undertaking of Ms Sun given on behalf of the plaintiff, the usual undertaking as to damages. I make orders in terms of paras 1 to 22 of the short minutes of orders. The proceedings are stood over for directions before the Commonwealth Registrar on 15 September 2022. The parties have liberty to apply on three days' notice and I direct that these orders be entered forthwith.

**********

Amendments

05 August 2022 - Name of plaintiff on title page corrected.

Decision last updated: 05 August 2022

Medium Neutral Citation:	Commissioner of the Australian Federal Police v Aouli [2022] NSWSC 1052
Hearing dates:	4 August 2022
Date of orders:	4 August 2022
Decision date:	04 August 2022
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), this Summons be made returnable immediately. 2. Pursuant to sections 26(4) and 39(3A) of the Proceeds of Crime Act 2002 (Cth), the application for relief in prayers 3 to 22 of this Summons be heard and determined without notice. Section 18 restraining orders 3. Pursuant to section 18(2)(a) of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule One, being property of the First Defendant, 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 18(2)(a) of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Two, being property of the First Defendant, must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. 5. Pursuant to section 18(2)(a) of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Three, being property of the First Defendant, must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. 6. Pursuant to section 18(2)(a) of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Four, being property of the First Defendant, must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. 7. Pursuant to section 18(2)(c) of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Five, being property of the Second Defendant that is subject to the effective control of the First Defendant, must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. Section 19 restraining orders 8. Pursuant to section 19 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule One must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. 9. Pursuant to section 19 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Two must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. 10. Pursuant to section 19 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Three must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. Third party registered interests 11. Notwithstanding prayers 3 and 8 above, National Australia Bank Limited may deal with the property identified in Schedule One in accordance with the terms of its registered mortgage AM294. 12. Notwithstanding prayer 4 and 9 above, Australia and New Zealand Banking Group Limited may deal with the property identified in Schedule Two in accordance with the terms of its registered mortgage 716816113. Custody and control orders 13. Pursuant to section 38 of the Proceeds of Crime Act 2002 (Cth), the Official Trustee in Bankruptcy (Official Trustee) is to take custody and control of the property specified in Schedule One. 14. Pursuant to section 38 of the Proceeds of Crime Act 2002 (Cth), the Official Trustee is to take custody and control of the property specified in Schedule Two. 15. Pursuant to section 38 of the Proceeds of Crime Act 2002 (Cth), the Official Trustee is to take custody and control of the property specified in Schedule Three. 16. Pursuant to section 38 of the Proceeds of Crime Act 2002 (Cth), the Official Trustee is to take custody and control of the property specified in Schedule Four. 17. Pursuant to section 38 of the Proceeds of Crime Act 2002 (Cth), the Official Trustee is to take custody and control of the property specified in Schedule Five. Ancillary orders 18. Pursuant to section 39(1) of the Proceeds of Crime Act 2002 (Cth), the First Defendant is directed to give to the Plaintiff within 28 days of the date of service of these orders a sworn statement in the form set out in Schedule Six setting out: (a) all of his, and the Second Defendant’s, interests in property within the meaning of the Proceeds of Crime Act 2002 (Cth), worldwide, not including any asset or interest in property with a value of less than AUD5,000 as at the date of these orders; and (b) all of his, and the Second Defendant’s, liabilities, worldwide, not including any liability with a value of less than AUD5,000 as at the date of these orders. 19. Pursuant to section 39(1)(e)(iii) of the Proceeds of Crime Act 2002 (Cth), the following persons are to hand over to the Official Trustee (or the Official Trustee’s representative) the keys, registration papers, insurance papers and any and all other documents and/or items of equipment relating to and necessary for the proper maintenance and upkeep of the properties referred to in Schedule One, Schedule Two and Schedule Five: (a) the First Defendant; (b) the Second Defendant; and (c) any other person who is in possession of the said keys, registration papers, insurance papers and other documents or items or equipment. 20. Without limiting any other of the powers or duties of the Official Trustee pursuant to subsections 39(1)(e) and 39(4) of the Proceeds of Crime Act 2002 (Cth), the Official Trustee is permitted, to the extent reasonably necessary, to do any or all of the following with respect to any of the properties specified in Schedule One and Schedule Two (Real Properties): (a) gain access to and inspect the Real Properties with 48 hours’ notice; (b) secure the Real Properties; (c) insure any building on the Real Properties as and when required; (d) lease the Real Properties, including doing all things necessary in relation to any existing leases or enter into new leases; (e) collect all rental monies payable in connection with the Real Properties; (f) apply any rental income received from the Real Properties to meet any costs or expenses relating to the said property including management fees and commissions incurred in the ordinary course of business, maintenance costs, insurance, rates, land tax or municipal or statutory charges. 21. Notwithstanding order 15, items 1, 2, and 4 of Schedule Three may continue to be held in the accounts specified in items 1, 2, and 4 respectively of Schedule Three, while still deemed to be in the custody and control of the Official Trustee, unless the Official Trustee directs otherwise. 22. Notwithstanding order 16, the property listed in Schedule Four may continue to be held in the account specified in Schedule Four, while still deemed to be in the custody and control of the Official Trustee, unless the Official Trustee directs otherwise. Other orders 23. The matter is listed for directions before the Common Law Registrar on 15 September 2022. 24. The parties have liberty to restore the matter on 3 days’ written notice. 25. These orders be entered forthwith. SCHEDULE ONE In the name of Maher Aouli: Real property located at 139 Terry Street, Connells Point NSW 2221, being Lot C in Deposited Plan 16990 SCHEDULE TWO In the name of Maher Aouli: Real property located at 516 Oyster Cove Promenade, Helensvale QLD 4212, being Lot 516 in Survey Plan 149218 SCHEDULE THREE In the name of Maher Aouli: Item 1: Chose in action enforceable against National Australia Bank Limited in respect of bank account 082-062 817772881 held in the name of Maher Aouli, including any funds available for redraw, together with any interest earned on the balance of funds held in that account Item 2: Chose in action enforceable against National Australia Bank Limited in respect of bank account 082-343 843217179 held in the name of Maher Aouli, together with any interest earned on the balance of funds held in that account Item 3: Chose in action enforceable against Australia and New Zealand Banking Group Limited in respect of bank account 012-081 400489159 held in the name of Maher Aouli, including any funds available for redraw, together with any interest earned on the balance of funds held in that account Item 4: Chose in action enforceable against Australia and New Zealand Banking Group Limited in respect of bank account 012-081 399897066 held in the name of Maher Aouli, including any funds available for redraw, together with any interest earned on the balance of funds held in that account Item 5: Chose in action enforceable against Australia and New Zealand Banking Group Limited in respect of bank account 012-325 389247166 held in the name of Maher Aouli, together with any interest earned on the balance of funds held in that account SCHEDULE FOUR In the name of Maher Aouli: Chose in action enforceable against National Australia Bank Limited in respect of bank account 082-062 817678799 held in the name of Maher Aouli, together with any interest earned on the balance of funds held in that account SCHEDULE FIVE In the name of Build Line Consulting Pty Ltd: Mercedes-Benz M-AMG G63 FL motor vehicle VIN W1N4632762X387028 with registration plate END87D (NSW) SCHEDULE SIX 1. Provide full particulars of the nature and extent of your property or where applicable, the property of any 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 any 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 disposition or dealing with property since September 2012 to the date the statement is sworn 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:	Crimes Act 1914 (Cth) s 4G Criminal Code (Cth) ss 135.1(3), 307.1(1), 400.9(1) Proceeds of Crime Act 2002 (Cth) ss 18, 19, 26, 39
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Commissioner of the Australian Federal Police (Plaintiff) Maher Aouli (First Defendant) Build Line Consulting Pty Ltd (Second Defendant)
Representation:	Counsel: A Sun - Ex parte (Plaintiff) Solicitors: Criminal Assets Litigation, Australian Federal Police (Plaintiff)
File Number(s):	2022/229620
Publication restriction:	Nil