Commissioner of the Australian Federal Police v Hua

[2022] NSWSC 616

Supreme Court

New South Wales

Medium Neutral Citation:	Commissioner of the Australian Federal Police v Hua [2022] NSWSC 616
Hearing dates:	5 April 2022
Date of orders:	5 April 2022
Decision date:	05 April 2022
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Orders in accordance with short minutes
Catchwords:	JUDGMENTS AND ORDERS – enforcement – orders made by the High Court of New Zealand concerning property registered in Australia – custody and control of the funds to be vested in the official trustee
Legislation Cited:	Mutual Assistance in Criminal Matters Act 1987, ss 35, 35A, 35B
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Commissioner of the Australian Federal Police (Plaintiff) Ye Hua (First Defendant) Zhenhua Qian (Second Defendant) Richard Hua (Third Defendant) Athena Qian (Fourth Defendant) Cecilia Qian (Fifth Defendant) Kore Trading Academy NZ Limited (Sixth Defendant)
Representation:	Counsel: K. Anderson (Plaintiff) Jones (First and Second Defendants)
File Number(s):	2021/289948

Extempore Judgment (revised)

1. On 12 October 2021, Lonergan J made orders in respect of property located in Australia registering orders made in the High Court of New Zealand under the provisions of the Mutual Assistance in Criminal Matters Act 1987 (Cth). The property consists largely of funds in various accounts with an organisation named TradeMax Australia Ltd.

2. The orders made in this Court were made ex parte. The summons by which proceedings were commenced here was filed in Court on 12 October 2021 and prayers 4-9 of the summons sought orders under s 35 of the Commonwealth legislation vesting the custody and control of the funds in the official trustee. There are procedural pre-conditions which made it in appropriate that those orders be made when the order directing registration was made.

3. Under s 35A of the Commonwealth legislation, an order under s 35 may not be made unless written notice of the application is given to the owner of the property and any other person that the crime authority - here the Commissioner for the AFP - has reason to believe may have an interest in the property.

4. As things have developed before me today, Mr Jones of counsel of the New Zealand Bar has sought and been granted leave to appear for the first to fifth defendants. The sixth defendant is a company, the controlling mind of which is located here in Australia. Mr Jones consents to the orders sought for the purpose of preservation of the value of the property the subject of the New Zealand orders.

5. So far as the sixth defendant is concerned, I am satisfied, having read the affidavit of Clinton Portors sworn on 4 April 2022, that notice of today’s application has been given to a Mr Kai Guo, who appears to be the person controlling the sixth defendant. His name was called outside the Court in accordance with the usual practice and he has not appeared. I am satisfied, so far as he may be concerned, that he has been given written notice as required by the provisions of s 35A. Other affidavit evidence would have satisfied me that the New Zealand domiciled defendant had been also afforded written notice, but the appearance of Mr Jones made it unnecessary for those affidavits to be read.

6. To the extent necessary, I record that I have permitted the appearance of Mr Jones in accordance with the applicable legislation permitting appearances in Trans-Tasman litigation remotely by audio visual link. It seems to be accepted, as I have said, to the extent to which there may be a residual discretion not to make the orders, that the orders are appropriate, as I have said, for the preservation of the value of the property.

7. Ancillary orders are also sought under s 35B requiring TradeMax Australia Ltd to take the necessary steps to vest the custody and control of the funds in the official trustee and permitting it to deduct its reasonable costs of doing so from the funds, no doubt in accordance with its contract with the defendants.

8. For these reasons, I make orders in accordance with the short minutes of order prepared by Mr Anderson for the plaintiff, signed by me and dated today, to which I have affixed the Court's seal.

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Decision last updated: 18 May 2022