Commissioner of the Australian Federal Police v Revell-Reade

[2021] NSWSC 812

Supreme Court

New South Wales

Medium Neutral Citation:

Commissioner of the Australian Federal Police v Revell-Reade [2021] NSWSC 812

Hearing dates:

16 June 2021

Date of orders:

06 July 2021

Decision date:

06 July 2021

Jurisdiction:

Common Law

Before:

Wright J

Decision:

(1) Pursuant to section 35F (1) of the Mutual Assistance in Criminal Matters Act 1987 (Cth) (the Act), the Court directs that, in partial satisfaction of the foreign pecuniary penalty order registered by this Court on 20 March 2019 (the Foreign Pecuniary Penalty Order), the Official Trustee in Bankruptcy pay to the Commonwealth the whole of the property described in Schedule One, being property restrained under the foreign restraining orders registered by this Court on 18 March 2014 and 21 June 2016 (the Foreign Restraining Orders).

(2)   Pursuant to section 35B of the Act the Court declares that:

(a)   Pabnk Pty Ltd ACN 117 537 587 (Pabnk) has an interest in the property described in Schedule Two, being property restrained under the Foreign Restraining Orders, in the nature of a lien in respect of unpaid storage costs (totalling $30,625) arising from an agreement for storage of the property described in Schedule Two; and

(b)   The Commonwealth’s charge over the property in Schedule Two is subject to Pabnk’s encumbrance on the property described in paragraph (a).

(3)   Pursuant to sections 35B, 35F (1) and (3) of the Act, the Court directs that the Official Trustee sell or otherwise dispose of the property described in Schedule Two, being property restrained under the Foreign Restraining Orders, and apply the proceeds as follows:

(a)   first in payment of Pabnk’s total unpaid storage costs totalling $30,625;

(b)   next in payment of the costs payable to the Official Trustee in respect of the property (including expenses incurred in connection with selling or disposing of the property); and

(c)   finally, pay any balance to the Commonwealth in accordance with section 35G of the Act.

(4)   Each party is to pay his, her or its own costs.

SCHEDULE ONE

Surplus sale proceeds of the property at 1/16 – 18 Thornton Street, Darling Point, New South Wales, 2027, being $410,940 and $1,622.08 held in the custody and control of the Official Trustee, plus any interest earned thereon.

SCHEDULE TWO

(i)   Harley Davidson Motorcycle index MSN 72

(ii)   Mini Cooper index BTQ 54F

(iii)   Land Rover Defender index BTQ 54G

Catchwords:

PRIVATE INTERNTATIONAL LAW – Assistance to foreign countries in criminal matters – Defendant convicted for conspiracy to defraud in UK – Foreign restraining orders and foreign pecuniary penalty orders registered under the Mutual Assistance in Criminal Matters Act 1987 (Cth) – Application for partial discharge of registered foreign pecuniary penalty order from property in custody and control of the Official Trustee – Interests of third parties – Order made subject to protection of interests of lien holder

Legislation Cited:

Corporations Act 2001 (Cth)

Mutual Assistance in Criminal Matters Act 1987 (Cth)

Mutual Assistance in Criminal Matters Amendment (Registration of Foreign Proceeds of Crime Orders) Act 2011 (Cth)

Proceeds of Crime Act 2002 (Cth)

Proceeds of Crime Act 2002 (UK)

Storage Liens Act 1935 (NSW)

Cases Cited:

Commissioner of the Australia Federal Police v Revell-Reade [2014] NSWSC 324

The Commissioner of the Australian Federal Police v Revell-Reade [2019] NSWSC 334

Texts Cited:

Explanatory Memorandum, Mutual Assistance in Criminal Matters Amendment (Registration of Foreign Proceeds of Crime Orders) Bill 2011 (Cth)

Category:

Principal judgment

Parties:

Commissioner of the Australian Federal Police (Plaintiff)
Jeffrey Robert Revell-Reade (First Defendant)
Andrea Young (First Affected Party)
Pabnk Pty Ltd (Second Affected Party)

Representation:

First Defendant – Self-represented
First Affected Party – Self-represented

Counsel:
T Prince (Plaintiff)

Solicitors:
Criminal Asset Litigation, Australian Federal Police (Plaintiff)
Mark Mulock & Co (Second Affected Party)

File Number(s):

2014/82531

Judgment

1. By an amended notice of motion filed on 16 June 2021, the plaintiff, the Commissioner of the Australian Federal Police, applies for orders under the Mutual Assistance in Criminal Matters Act 1987 (Cth) (MACM Act) in relation to the proceeds of sale of certain real property and certain motor vehicles said to have been property of, or under the effective control of, the defendant, Mr Revell-Reade.

2. The amended notice of motion identified that Ms Young, the wife of Mr Revell-Reade, and Pabnk Pty Ltd which trades as Fairy Meadow Self Storage, were persons who might be affected by the orders sought and thus were interested parties for the purposes of these proceedings.

3. In order to understand the issues that arise on the Commissioner’s application, it is necessary to consider the relevant provisions of the MACM Act and to set out the background to this application.

The Mutual Assistance in Criminal Matters Act 1987 – relevant operation

4. One of the objects of the MACM Act is “to regulate the provision by Australia of international assistance in criminal matters when a request is made by a foreign country in respect of which powers may be exercised under this Act (whether or not in conjunction with other Australian laws)”: s 5(a) of the MACM Act.

5. One of the forms of international assistance that may be provided under the MACM Act is assistance in relation to the recovery of property under foreign legislation analogous to the Proceeds of Crime Act 2002 (Cth) (POC Act). To this end, under Pt 6 Divs 2 and 3 of the MACM Act, an Australian proceeds of crime authority (which includes the Commissioner) may be authorised by the Attorney General, at the request of a foreign country, to apply for registration in a Court with proceeds of crime jurisdiction (including this Court) of foreign proceeds of crime orders. Those orders include a foreign restraining order and a foreign pecuniary penalty order. Once registered, such orders have effect as if they were made under the relevant provisions of the POC Act and certain provisions of that Act are made applicable to those foreign orders.

6. The present proceedings concern the enforcement of foreign restraining orders and foreign pecuniary penalty orders made by courts in the United Kingdom against Mr Revell-Reade and associated persons and entities. These orders have been registered in this Court.

7. It can be noted that the MACM Act expressly states in s 33A as follows:

“(1) The object of this Subdivision [Subdiv A of Div 2 of Pt 6] is to facilitate international cooperation in the recovery of property through the registration and enforcement of foreign orders in Australia.

(2) For the purpose of achieving this object, it is the intention of the Parliament that the validity of foreign orders not be examined.”

8. Accordingly, in these proceedings, the Court’s focus will not be on examining the validity of the orders made by the UK courts.

9. The most relevant provisions of Pt 6 Divs 2 and 3 of the MACM Act for the purposes of these proceedings include:

“34 Requests for enforcement of foreign orders

(1)   If:

(a)   a foreign country requests the Attorney General to make arrangements for the enforcement of:

… or

(ii)   a foreign pecuniary penalty order, made in respect of a foreign serious offence, where some or all of the property available to satisfy the order is reasonably suspected of being located in Australia; and

(b)   the Attorney General is satisfied that:

(i)   a person has been convicted of the offence; and

(ii)   the conviction and the order are not subject to further appeal in the foreign country;

the Attorney General may authorise a proceeds of crime authority, in writing, to apply for the registration of the order.

(2)   If a foreign country requests the Attorney General to make arrangements for the enforcement of:

… or

(b)   a foreign pecuniary penalty order in respect of which both of the following apply:

(i)   the order has the effect of requiring a person to pay an amount of money on the basis that the money is, or is alleged to be, the benefit derived from a foreign serious offence (whether or not the person has been convicted of that offence);

(ii)   some or all of the property available to satisfy the order is reasonably suspected of being located in Australia;

the Attorney General may authorise a proceeds of crime authority, in writing, to apply for the registration of the order.

(3)   If a foreign country requests the Attorney General to make arrangements for the enforcement of a foreign restraining order, against property that is reasonably suspected of being located in Australia, that is:

(a)   made in respect of a foreign serious offence for which a person has been convicted or charged; or

(b)   made in respect of the alleged commission of a foreign serious offence (whether or not the identity of the person who committed the offence is known);

the Attorney General may authorise a proceeds of crime authority, in writing, to apply for the registration of the order.

34A Registration of foreign orders

(1A)   An application to a court for registration of a foreign order in accordance with an authorisation under this Subdivision must be to a court with proceeds jurisdiction.

(1)   If a proceeds of crime authority applies to a court with proceeds jurisdiction for registration of a foreign order in accordance with an authorisation under this Subdivision, the court must register the order accordingly, unless the court is satisfied that it would be contrary to the interests of justice to do so.

(2)   The proceeds of crime authority must give notice of the application:

(a)   to specified persons the authority has reason to suspect may have an interest in the property; and

(b)   to such other persons as the court directs.

(3)   However, the court may consider the application without notice having been given if the proceeds of crime authority requests the court to do so.

(4)   If a foreign pecuniary penalty order or a foreign restraining order is registered in a court under this Subdivision:

(a)   a copy of any amendments made to the order (whether before or after registration) may be registered in the same way as the order; and

(b)   the amendments do not, for the purposes of this Act and the Proceeds of Crime Act, have effect until they are registered.

(5)   An order or an amendment of an order is to be registered in a court by the registration, in accordance with the rules of the court, of:

(a)   a copy of the appropriate order or amendment sealed by the court or other authority making that order or amendment; or

(b)   a copy of that order or amendment duly authenticated in accordance with subsection 43(2).

…

34D Enforcement of foreign pecuniary penalty orders

(1)   A foreign pecuniary penalty order registered in a court under this Subdivision has effect, and may be enforced, as if it were a pecuniary penalty order that:

(a)   was made by the court under the Proceeds of Crime Act at the time of registration; and

(b)   requires the payment to the Commonwealth of the amount payable under the order.

(2)   Any amount paid (whether in Australia, in the foreign country in which the order was made or elsewhere) in satisfaction of the foreign pecuniary penalty order is taken to have been paid in satisfaction of the debt that arises because of the registration of the foreign pecuniary penalty order in that court.

(3)   Division 5 of Part 2 4 of the Proceeds of Crime Act does not apply in relation to a foreign pecuniary penalty order registered under this Subdivision.

34E Enforcement of foreign restraining orders

(1)   A foreign restraining order registered in a court under this Subdivision has effect, and may be enforced, as if it were a restraining order that:

(a)   was made by the court under the Proceeds of Crime Act at the time of the registration; and

(b)   directed that the property specified in the order is not to be disposed of or otherwise dealt with by any person.

(2)   In particular:

(a)   section 288 of that Act applies as if:

(i)   the reference in that section to the Official Trustee’s exercise of powers under that Act included a reference to the Official Trustee’s exercise of those powers in relation to a foreign restraining order so registered; and

(ii)   the reference in that section to the Official Trustee’s performance of functions or duties under that Act included a reference to the Official Trustee’s performance of those functions or duties in relation to such a foreign restraining order; and

(b) section 289 of that Act applies as if the reference in that section to controlled property included a reference to property that is subject to an order under section 35; and

(c) section 290 of that Act applies as if the reference in that section to the controlled property were a reference to the property that is subject to an order under section 35.

(3)   Divisions 1, 2 and 3 of Part 2 1, section 33, Divisions 5 and 6 of Part 2 1 and sections 142, 143, 169, 170 and 282 to 287 of the Proceeds of Crime Act do not apply in relation to a foreign restraining order registered under this Subdivision.

…

34G Cancelling registration

(1)   The Attorney General may direct the proceeds of crime authority authorised under section 34 to apply to a court in which:

(a)   a foreign pecuniary penalty order; or

(b)   a foreign restraining order;

has been registered under this Subdivision for cancellation of the registration.

(2)   Without limiting subsection (1), the Attorney General may give a direction under that subsection in relation to an order if the Attorney General is satisfied that:

(a)   the order has ceased to have effect in the foreign country in which the order was made; or

(b)   cancellation of the order is appropriate having regard to the arrangements entered into between Australia and the foreign country in relation to the enforcement of orders of that kind.

(3)   The court to which a proceeds of crime authority applies in accordance with a direction under subsection (1) must cancel the registration accordingly.

…

35 Court may order Official Trustee to take custody and control of property

The court that registers a foreign restraining order under Subdivision A of Division 2 may order the Official Trustee to take custody and control of all or a specified part of property covered by the restraining order if:

(a)   the proceeds of crime authority authorised under section 34 applies for the order; and

(b)   the court is satisfied that it is required in the circumstances.

35A Procedural matters

(1) A proceeds of crime authority that applies for an order under section 35 in respect of property must give written notice of the application to:

(a)   the owner of the property; and

(b)   any other person the authority has reason to believe may have an interest in the property.

(2)   The court may, at any time before finally determining the application, direct the proceeds of crime authority to give or publish notice of the application:

(a)   to a specified person or class of persons; and

(b)   in the manner and within the time that the court considers appropriate.

(3)   A person who claims an interest in property in respect of which the application is made may appear and adduce evidence at the hearing of the application.

35B Ancillary orders

The court that makes an order under section 35 in relation to property may at any time make orders ancillary to the order, including any one or more of the following:

…

(b)   an order determining any question relating to the property, including a question relating to the liabilities of the owner of the property or the exercise of the powers or the performance of the duties of the Official Trustee in relation to the property;

….

35F Order to discharge certain registered foreign pecuniary penalty orders

(1)   If:

(a)   a foreign restraining order is made against property of a person in reliance on the person’s conviction, or alleged commission, of a foreign serious offence; and

(b)   the foreign restraining order is registered under Subdivision A of Division 2; and

(c)   a foreign pecuniary penalty order has been made against the person in relation to the person’s conviction, or alleged commission, of the offence or a related foreign serious offence; and

(d)   the foreign pecuniary penalty order has been registered under Subdivision A of Division 2; and

(e) an order has been made under section 35 ordering the Official Trustee to take control of the property;

the court in which the foreign pecuniary penalty order is registered may, by order, direct the Official Trustee to pay to the Commonwealth an amount out of that property.

(2)   The amount is to be the amount that would be the penalty amount under the Proceeds of Crime Act if the foreign pecuniary penalty order were a pecuniary penalty order under that Act.

(3)   For the purposes of enabling the Official Trustee to comply with the order under subsection (1), the court may, in that order or by a subsequent order:

(a)   direct the Official Trustee to sell or otherwise dispose of such of the property that is under the control of the Official Trustee as the court specifies; and

(b)   appoint an officer of the court or any other person:

(i)   to execute any deed or instrument in the name of a person who owns or has an interest in the property; and

(ii)   to do any act or thing necessary to give validity and operation to the deed or instrument.

(4)   The execution of the deed or instrument by the person appointed by an order under subsection (3) has the same force and validity as if the deed or instrument had been executed by the person who owned or had the interest in the property.

…

35M When order ceases to be in force

A foreign restraining order registered under Subdivision A of Division 2 ceases to be in force when the registration is cancelled under section 34G.”

10. There was no dispute as to the requirements for the institution and continuance of these proceedings under the MACM Act having been met and I accept that they have been.

Background to this application

11. Between 2003 and 2007, Mr Revell-Reade and others were involved in a share sale fraud by which virtually worthless shares in United States companies were sold to over 2,000 investors in the United Kingdom, defrauding those investors of over US$100,000,000. The shares were sold by UK nationals operating out of Madrid, in Spain, using high pressure sales techniques. Mr Revell-Reade participated in a conspiracy to have the salespersons make false claims and representations to investors in order to sell as many shares as possible. The false representations concerned the nature of the shares and the sales team’s regulation and remuneration. Mr Revell-Reade organised the supply of the shares and oversaw the salespersons. He also maintained control of the flow of money so that eventually the investor funds of over $US44,000,000 or £34,000,000 passed through accounts controlled by him.

12. The UK Serious Fraud Office (SFO) conducted a criminal investigation into the fraud and, on 1 February 2012, the defendant was extradited from Australia to the UK where he was charged with various offences including conspiracy to defraud.

13. On 17 October 2012, in the Queen’s Bench Division of the High Court of Justice in the United Kingdom, the Honourable Mr Justice Charles made a restraint order, which was relevantly a foreign restraining order under the MACM Act, in respect of assets of Mr Revell-Reade and associated persons or entities.

14. On 18 March 2014, Davies J in this Court made an order that:

“2. Pursuant to section 34A of the Mutual Assistance in Criminal Matters Act 1987 (Cth) the Restraining Order issued by the Honourable Mr Justice Charles in the United Kingdom by the High Court of Justice, Queens Bench Division on 17 October 2012 be registered in the Supreme Court of New South Wales.”

- see Commissioner of the Australia Federal Police v Revell-Reade [2014] NSWSC 324.

15. The property restrained by the foreign restraining orders registered on 18 March 2014 included, without attempting to be exhaustive:

1. 1/16 – 18 Thornton Street, Darling Point, New South Wales (the Darling Point property) owned by Oz Propertycorp Pty Ltd;

2. a Harley Davidson motorcycle owned by Mr Revell-Reade; and

3. other property of, or under the effective control of, Mr Revell-Reade and others identified in the orders.

16. On 4 June 2014, after a trial at Southwark Crown Court, Mr Revell-Reade was found guilty of conspiracy to defraud. On 6 June 2014, he was sentenced to imprisonment for nine years and six months.

17. On 14 September 2015, the Darling Point property was sold and, after the discharge of a mortgage over the property and other related expenses, the surplus proceeds of sale were $412,562.08.

18. On 12 October 2015, the Southwark Crown Court made, inter alia, further restraining orders against Mr Revell-Reade, Oz Propertycorp Pty Ltd and Ms Young, inter alios, in respect of specified assets as well as an “all property” restraining order against Mr Revell-Reade. The list of assets set out in the order included the following property located Australia:

1. the Darling Point property;

2. three motor vehicles:

1. a Harley Davidson motorcycle – MSN 72;

2. a Mini Cooper – BTQ 54F; and

3. a Land Rover Defender - BTQ 54G,

(the three motor vehicles);

3. furniture held by Grace Removals Group on behalf of Mr Revell-Reade; and

4. any legal and/or beneficial interest held by Mr Revell-Reade in artwork.

19. On 19 April 2016, the Southwark Crown Court made a confiscation order under section 6 of the Proceeds of Crime Act 2002 (UK) against Mr Revell-Reade by which he was ordered to pay £10,751,000 within 3 months. The order also provided that in default of payment, Mr Revell-Reade was liable to serve a period of imprisonment of 10 years, such period to run consecutively to any other period of imprisonment or detention that he was liable to serve for the offence referred to in the order.

20. On 21 June 2016, the following orders were made in this Court:

“1. Pursuant to section 34A of Mutual Assistance in Criminal Matters Act 1987 (Act), the restraining order issued by [his Honour Judge] Gledhill QC in the Crown Court sitting at Southwark on 12 October 2015 be registered in the Supreme Court of New South Wales.

2. Pursuant to section 35 of the Act, the Official Trustee is to take custody and control of the following property:

a. NAB Bank Cheque in the sum of $1,622.08 payable to the Official Trustee in Bankruptcy dated 23 February 2016; and

b. CBA Bank Cheque in the sum of $410,940 payable to the Official Trustee in Bankruptcy dated 29 October 2015.

3. Pursuant to section 34G(3) of the Act, the registration of the order made by the Honourable Mr Justice Charles in the United Kingdom by the High Court of Justice, Queen’s Bench Division on 17 October 2012 with this Court on 18 March 2014 is cancelled.”

21. It can be noted that:

1. orders 1 and 3 effectively replaced the registration of the 17 October 2012 foreign restraining order with the registration of the 12 October 2015 foreign restraining order; and

2. orders 2(a) and (b) made pursuant to s 35 of the MACM Act related to the whole of the surplus proceeds of sale of the Darling Point property.

22. On 10 April 2017, his Honour Judge Gledhill, in the Southwark Crown Court, reduced the amount of the confiscation order from £10,000,750 to £7,535,802.67 and the period of imprisonment in default of payment was reduced to seven years and six months.

23. On 20 March 2019, Wilson J in this Court made the following order registering the amended confiscation order of 10 April 2017 as a foreign pecuniary penalty order under the MACM Act:

“Order that the order issued by his Honour Judge Gledhill QC in the Crown Court sitting at Southwark, London, United Kingdom of Great Britain and Northern Ireland on 19 April 2016 and amended on 10 April 2017, as certified on 8 November 2018, with an annexed schedule which was amended on 24 January 2017 by that Court, as certified on 24 January 2017, be registered in the Supreme Court of New South Wales”

- see The Commissioner of the Australian Federal Police v Revell-Reade [2019] NSWSC 334.

24. On 28 July 2019, Oz Propertycorp Pty Ltd was deregistered.

25. According to the UK SFO, as at 9 December 2019, the total outstanding balance in respect of the amended confiscation order was £4,037,974.18. In addition, interest accrued after 19 October 2016, at a rate of £885.04 per day, had resulted in a total balance of £5,052,583.61.

26. On 26 February 2020, the Commissioner filed the original notice of motion in relation to the present application. That notice of motion concerned not only the surplus proceeds of sale of the Darling Point property, and the three motor vehicles but also the furniture and artworks held by Grace Removals Group.

27. On 8 July 2020, the Southwark Crown Court amended the confiscation order dated 10 April 2017 to reduce the amount of the confiscation order by £260,000, but this appears to have been on the basis that, and as at such time as, the Official Trustee transferred the surplus proceeds of sale of the Darling Point property or a lesser sum to Her Majesty’s Court and Tribunal Service Account and Mr Revell-Reade consented to any subsequent s 22 Proceeds of Crime Act 2002 (UK) application in respect of the amount transferred.

28. On 16 December 2020, Campbell J made orders in relation to the application which included the following:

“…

2 Pursuant to section 35 of the Mutual Assistance in Criminal Matters Act 1987 (Cth) (Act) the Official Trustee in Bankruptcy (Official Trustee) is to take custody and control of the property described in Schedule One, being property restrained under the foreign restraining orders registered by the court on 18 March 2014 and 21 June 2016 (Foreign Restraining Orders).

3 Pursuant to section 35 of the Act the Official Trustee is to take custody and control of the property described in Schedule Two, being property restrained under the Foreign Restraining Orders.

…

SCHEDULE ONE

(i) Harley Davidson Motorcycle Index MSN72

(ii) Mini Cooper Index BTQ54F

(iii) Land Rover Defender Index BTQ54G

SCHEDULE TWO

Quantity of furniture, artwork and other goods held by Grace Removals Group (Sydney branch) under the names of Andrea Young and/or Jeffrey Revell-Reade of 1/16-18 Thornton Street, Darling Point, NSW.”

29. Consequently, orders have now been made under s 35 of the MACM Act that the Official Trustee take control of both the surplus proceeds of sale of the Darling Point property and the three motor vehicles.

30. On 25 June 2021, the Court made orders by consent in relation to the furniture and artworks held by Grace Removals Group as follows:

“1 Pursuant to s 35B(b) of the Mutual Assistance in Criminal Matters Act 1987 (Cth) (Act), the Court declares that:

a. Grace Worldwide (Australia) Pty Ltd, Australian Business Number 90 070 345 845 (Grace Worldwide) has a lien or charge over the property identified in Schedule 1 of this Order in the amount of $21,876.55 in unpaid storage fees;

b. Ms Andrea Young is the owner of the property identified in Schedule 1 of this Order, which interest is subject to the interest of Grace Worldwide.

2 The Commissioner is to pay the unpaid storage fees totalling $21,876.55 to Grace Worldwide within 30 days of these orders being made.

3 Pursuant to s 35B(b) of the Act, upon payment of the amount in Order 2, the Official Trustee is to release the property in Schedule 1 of this Order to Ms Young.

SCHEDULE ONE

Quantity of furniture, artwork and other goods held by Grace Removals Group (Sydney Branch) under the names of Andrea Young and/or Jeffrey Revell-Reade of 1/16-18 Thornton Street, Darling Point, NSW.”

31. As a result, the only property remaining to be dealt with on this application is the surplus proceeds of sale of the Darling Point property and the three motor vehicles. Each of these items of property is under the control of the Official Trustee.

32. It is now necessary to consider the operation of s 35F of the MACM Act in relation to each of these items of property.

Surplus proceeds of sale of the Darling Point property

Factual findings

33. The Darling Point property was purchased on 19 February 2007 for $3,950,000 by Oz Propertycorp Pty Ltd. $2,850,000 of the purchase price was funded by a mortgage from the National Australia Bank. My attention was not drawn to any evidence as to the source of the remaining amount of the purchase price, $1,100,000, nor did I find any such evidence in the material before the Court. In all the circumstances and to the extent that it may be relevant in light of s 33A of the MACM Act or otherwise, I inferred that the remaining $1,100,000 was funded out of the proceeds of Mr Revell-Reade’s conspiracy for which he was convicted in the UK.

34. As noted above, on 14 September 2015, the Darling Point property was sold and, after the discharge of the mortgage over the property and any other related expenses, the surplus proceeds of sale were $412,562.08.

35. The corporate structure within which the Darling Point property was held was as follows, at the relevant times:

1. Oz Propertycorp Pty Ltd (Propertycorp) was the registered proprietor of the Darling Point property and was deregistered on 28 July 2019;

2. all the shares in Propertycorp and another company called Oz Investmentcorp Pty Ltd were held by Oz Groupcorp Pty Ltd (Groupcorp), which was deregistered on 30 July 2017;

3. all the shares in Groupcorp were held by Oz Managementcorp Pty Ltd (Managementcorp), which was deregistered on 5 August 2018;

4. all the shares in Managementcorp were originally held by Mr Revell-Reade but on 24 March 2010 these shares were agreed to be transferred to Mr Westoby for nominal consideration; and

5. Mr Westoby was the sole director of each company.

36. At this point it can be noted that s 601AD of the Corporations Act 2001 (Cth), which relates to the property of deregistered companies, relevantly provides as follow:

“…

Trust property vests in the Commonwealth

(1A) On deregistration, all property that the company held on trust immediately before deregistration vests in the Commonwealth. If property is vested in a liquidator on trust immediately before deregistration, that property vests in the Commonwealth. This subsection extends to property situated outside this jurisdiction.

Other company property vests in ASIC

(2) On deregistration, all the company’s property (other than any property held by the company on trust) vests in ASIC. If company property is vested in a liquidator (other than any company property vested in a liquidator on trust) immediately before deregistration, that property vests in ASIC. This subsection extends to property situated outside this jurisdiction.

Rights and powers in respect of property

(3) Under subsection (1A) or (2), the Commonwealth or ASIC takes only the same property rights that the company itself held. If the company held particular property subject to a security or other interest or claim, the Commonwealth or ASIC takes the property subject to that interest or claim.

…”.

37. ASIC informed the Commissioner in correspondence which was before the Court that it did not intend to take any steps in relation to Propertycorp, it did not oppose the relief sought by the Commissioner and it did not wish to be joined to or be heard in relation to the present application.

38. There is a further complication in this matter in that Mr Revell-Reade has, at times, asserted that the shares held by Mr Westoby in Managementcorp were held for him or on trust for the De Revell family trust. In addition, it has been asserted that all payments by Mr Revell-Reade into the “Oz Group” were paid either as a loan from him or as a gift for the purposes of the trust.

39. As to Mr Westoby, it appears from his statement dated 21 June 2012 that in March 2010 he sought to separate Mr Revell-Reade’s business, with which Mr Westoby was involved, from Mr Revell-Reade’s private affairs which were conducted through Managementcorp and its subsidiaries. In the material available on this application, Mr Westoby has not contended that he intended to, or did, take beneficial ownership of Mr Revell-Reade’s shares in Managementcorp which were agreed to be transferred to Mr Westoby for nominal consideration. It does not appear that Mr Westoby has ever asserted any interest in the Darling Point property as a result of his claiming to be the legal owner of the shares, at relevant times, in Managementcorp, assuming that the share transfer agreement referred to in the relevant company search was actually effected and the transfer registered. Nor does it appear that Mr Westoby has sought to appear in any of the proceedings under the MACM Act in order to claim an interest in surplus proceeds of sale of the Darling Point property. There was no suggestion that Mr Westoby had provided any of the funds used to purchase the Darling Point property. Having regard to these matters and the evidence as a whole, I am satisfied that Mr Westoby did not, and does not, claim any direct or indirect interest, legal or beneficial, in the Darling Point property or in the surplus proceeds of sale of that property.

40. The assertion that there was a De Revell family trust is based on a 26 page document which was apparently prepared by Gadens, solicitors, and which named a Mr Jeremy Smith as the settlor and Managmentcorp as the trustee of a discretionary trust to be known as the De-Revell’s Family Trust. The beneficiaries included Mr Revell-Reade, certain family members and certain related entities. Mr Revell-Reade was nominated as the “First Appointor”. The trustee with the written consent of the Appointor was entitled to alter, vary or revoke any trust or provision of the document, except that clause, or appoint or resettle the trust fund and otherwise deal with the fund as the trustee thought fit.

41. The difficulty is that the 26 page document was never executed nor did it ever come into effect.

42. In his statement dated 29 January 2013, Mr Revell-Reade stated at par (13):

“…

(ii) I consider that I am the ultimate beneficial owner of the properties known as ‘Darling Point’ [which is a reference to the Darling Point property] and ‘Double Bay’.

(iii) I consider that the above is the only position there can be as the ‘De Revell Family Trust’ has not functioned as it was intended. In the absence of the trust the legal position is that Oz Management Corp owns shares in Oz Group which in turn owns Oz Propertycorp which in turn owns the [Darling Point property]…

...”

43. This position was confirmed by Mr Revell-Reade in his Response to s 17 Proceeds of Crimes Act 2002 (UK) proceedings in the Southwark County Court, prepared by his solicitors Shearman Bowen & Co on the basis of information available at 22 December 2015, which stated:

“99 The defendant [Mr Revell-Reade] has always been open of his acceptance that the De Revell Family Trust was not a properly constructed trust.

100 The defendant accepts that the only asset of the trust had it been properly executed was the shares in Oz Managementcorp Pty Ltd

101 The defendant accepts as the trust was not executed he is the beneficiary of Oz Management Corp Pty Ltd.

102 The defendant accepts that Oz Managementcorp Pty Ltd is the ultimate holding company of the subsidiary companies.

103 It is accepted that any individual who would have been a beneficiary of a Trust had it been properly executed may have a claim against the Solicitors firm who failed to ensure that the Trust was validly constituted.

…

158 Assets of Oz Managementcorp Pty Ltd

The defendant accepts that as the De Revell family trust was not executed properly and as the Oz Managementcorp Pty Ltd was held by Nigel Westoby to his order then the assets of the company are realisable assets.

…

160 Assets of Oz PropertyCorp Pty Ltd

As the Oz Propertycorp Pty Ltd is held by Oz Managementcorp Pty Ltd then for the reasons set out earlier and at para 158 the defendant accepts that the assets of this company are realisable assets. This includes:

a) Sale proceeds of 1/16 – 18 Thornton Street, Darling Point, Australia …”.

44. Propertycorp was receiving rental income from the Darling Point property in 2015, according to Mr Revell-Reade’s statement of 5 January 2015.

45. It can also be noted that, on 13 July 2020, Mr Revell-Reade signed a declaration that he relinquished any claim to both the legal title and any equitable interest in the surplus proceeds of sale of the Darling Point property for the purpose of the confiscation order being satisfied. The declaration specifically states in par 3 that “[t]his declaration does not affect or extinguish any claims made by Andrea Young (or any other Interested Third Party) in the [surplus proceeds of sale of the Darling Point property and other items of property listed]”.

46. In these proceedings, Ms Young has claimed an interest in the proceeds of sale of the Darling Point property. It is appropriate to consider this claim before dealing with the application of s 35F of the MACM Act.

Does Ms Young have any relevant interest in the surplus proceeds of sale of the Darling Point property?

47. The basis for Ms Young’s claim to an interest in the surplus proceeds of the Darling Point property is succinctly set out in par 38 of her statement signed on 12 November 2020. That paragraph states as follows:

“I maintain that I have an interest in the proceeds of sale of the Family Home [the Darling Point property] for the following reasons:

a. It was always intended and agreed that the asset would be part of the family trust, of which the children and I were beneficiaries. Any monies from the sale of the home and under the Trust the money would be available to me to help with providing a home for me.

b. The property was our family home in Australia.

c. I have contributed to the acquisition of the family home including payments as loans of at least $10,000 to OzPropertyCorp Pty Ltd, and I believe that there may have been other payments. For reference I have attached a bank statement showing the $10,000 debits from my account.

d. I paid many of the running costs and contributed to the maintenance of our Family Home.

e. Pursuant to our agreement and my interest, I arranged for and signed the storage contracts.

f. The Defendant [Mr Revell-Reade] owes me £311,000 and so I also have a claim against his share if any as a creditor.

g. My matrimonial claim”.

48. I shall deal with each basis of claim in order.

(a) The family trust

49. For the reasons already given above, there was no family trust that ever came into existence. Accordingly, neither the Darling Point property nor the surplus proceeds of sale of that property were or are trust assets of such trust.

(b) The property was the family home

50. The fact that the Darling Point property was, for a time, the family home of Ms Young, Mr Revell-Reade and his children does not, of itself and without more, give rise to any interest, whether legal or equitable, on the part of Ms Young in the property.

(c) Contributions to the acquisition of the family home

51. Next Ms Young contended that she contributed to the acquisition of the Darling Point property, including payments as loans of at least $10,000 to Propertycorp. In support of this contention, a bank statement was referred to. The bank statement was from St George Bank for the period 1 to 30 April 2014 but addressed to Ms Young at an address in the United Kingdom. The statement revealed that most of the transactions recorded related to day to day purchases or cash advances by Visa card in the UK. There were, however, five transactions, totalling $21,140.00, each of which was described as “Internet withdrawal [date and time] Loan to Oz Property” as follows:

1. $5,000.00 on 9 April;

2. $5,000.00 on 10 April;

3. $5,000.00 on 12 April;

4. $5,000.00 on 15 April; and

5. $1,140.00 on 22 April.

52. Each of these five transactions was preceded by a deposit, described as “Internet Deposit [date and time] from [account number]”, made on the previous or the same day in a sum greater than or equal to the “Loan to Oz Property” withdrawals. There was no information as to where the funds for these “Internet Deposits” came from or whose funds they were.

52. Assuming that the funds were Ms Young’s and that the descriptions in the bank statement were accurate, the evidence of these transactions does not assist Ms Young. The Darling Point property had been purchased by Propertycorp in 2007. Consequently, the funds transferred in April 2014 could not have been direct contributions towards the purchase price. Further, the transferred amounts were described as “loans” to Propertycorp. There was no other evidence as to the terms of these “loans”. There was no evidence that Ms Young was to receive an interest in or charge over the Darling Point property to secure repayment of the loans. The most that the evidence could establish was that Ms Young made unsecured loans to Propertycorp in April 2014 totalling $21,140.00. She may have had a claim against Oz Propertycorp Pty Ltd for repayment of the loans but the evidence did not establish, or provide any basis for concluding, that Ms Young had any interest, whether legal or equitable, in the Darling Point property as a result of those transactions. Consequently, it cannot be concluded that she obtained and has any interest in the surplus proceeds of sale of the Darling Point property, based on those “loans” in 2014.

(d) Payment of running costs and contributions to maintenance of the Family Home

54. The fact, by itself, that Ms Young may have paid many of the running costs and contributed to the maintenance of the property, in an undisclosed amount, while she and her husband and his children were living there, also does not assist her. Absent some agreement with the owner that paying running costs and contributing to maintenance would entitle Ms Young to an interest in, or charge over, the Darling Point property, evidence of payment of running costs and contributions to maintenance does not establish that she has any entitlement to any interest, legal or equitable, in the property or the surplus proceeds of sale.

55. When asked during the hearing whether there was any evidence of an agreement whereby she would receive a proprietary interest in the Darling Point property in return for paying the running costs and contributing to the maintenance of the property, Ms Young said that there was none. Furthermore, there was no evidence as to the nature or extent of the payments or contributions.

(e) Arranging a storage contract

56. Ms Young’s arranging for and payment of storage appears to relate to the furniture and artworks, which were the subject of the orders made by consent on 25 June 2021 referred to above, or to the motor vehicles which will be dealt with below. It is not clear from par 38(e) of her statement or from any of the other evidence, what the agreement referred to in that paragraph related to. Nor was there any evidence as to its terms. There was no basis in the evidence for concluding that Ms Young obtained any interest in the Darling Point property or the surplus proceeds of sale as a result of arranging and paying for storage.

(f) Ms Young’s claim against Mr Revell-Reade

57. The fact that Ms Young may have a claim for £311,000 against Mr Revell-Reade, once again, does not, by itself, establish that she had or has an interest, whether legal or equitable, in the Darling Point property or the surplus proceeds of sale of that property. Such a claim, if it were established on the evidence, would appear to be personal to Mr Revell-Reade and there was no suggestion that repayment was secured against the Darling Point property. It can be further noted that the evidence before the Court did not establish that Ms Young actually had a claim in this amount against Mr Revell-Reade.

(g) The “matrimonial claim”

58. As to the “matrimonial claim”, Ms Young’s evidence established only that she had considered taking divorce proceedings probably not in Australia, although she recognised that it may be necessary for the Family Court of Australia to resolve any financial claim or to enforce any order she might obtain in another jurisdiction. The possibility that property rights might be adjusted in family law proceedings does not, especially given what has transpired in relation to the Darling Point property, give rise to Ms Young having, at this point, any interest in the surplus proceeds of sale. Payments and contributions made by Ms Young in the context of her marriage to Mr Revell-Reade may, however, be taken into account by the court which deals with the property aspects of any family law proceedings she may decide to bring.

Conclusion on Ms Young’s interest

59. For all of these reasons, I am of the view that the evidence does not establish that Ms Young had any interest, legal or equitable, in the Darling Point property. Nor does it establish that she has any relevant interest in the surplus proceeds of sale.

Application of s 35F of the MACM Act in relation to the surplus proceeds of sale

60. For the reasons explained above, it appears to me that the Darling Point property was, when it was made the subject of the foreign restraining orders, property under the effective control of Mr Revell-Reade and had been purchased with funds partly provided directly or indirectly by Mr Revell-Reade.

61. Having regard to the UK restraint orders and confiscation orders and the orders of this Court and all the circumstances set out above, I am satisfied that, for the purposes of s 35F of the MACM Act:

1. foreign restraining orders have been made against the Darling Point property in reliance on Mr Revell-Reade’s alleged commission of, and conviction for, a foreign serious offence namely conspiracy to defraud;

2. the foreign restraining orders have been registered under Subdiv A of Div 2 of Pt 6 of the MACM Act;

3. foreign pecuniary penalty orders have been made against Mr Revell-Reade in relation to his conviction for conspiracy to defraud;

4. the foreign pecuniary penalty order has been registered under Subdiv A of Div 2 of Pt 6 of the MACM Act; and

5. an order has been made under s 35 of the MACM Act ordering the Official Trustee to take control of the surplus proceeds of sale of the Darling Point property.

62. The requirements of s 35F(1)(a) to (e) being satisfied in respect of the proceeds of sale of the Darling Point property, the Court may make an order directing the Official Trustee to pay to the Commonwealth an amount out of that property.

63. As to what amount is to be paid to the Commonwealth out of that property, s 35F(2) provides the following:

“The amount is to be the amount that would be the penalty amount under the Proceeds of Crime Act if the foreign pecuniary penalty order were a pecuniary penalty order under that Act.”

64. This provision could, on one reading, be construed as referring to an amount that has been determined by the Court using the regime prescribed in Ch 2 Pts 2-4 Div 2 of the POC Act, such that this Court would then need to calculate for itself the requisite amount at this point of time. This would, however, appear to be inconsistent with s 33A(2), which makes clear that the validity of a foreign order is not intended to be examined. According to the Explanatory Memorandum to the Mutual Assistance in Criminal Matters Amendment (Registration of Foreign Proceeds of Crime Orders) Act 2011 (Cth) by which s 33A was introduced:

“The new object clause [s 33A(1)] and the clause stating the intent of Parliament [s 33A(2)] are designed to ensure that when interpreting the provisions in the Subdivision, courts will have due regard to the overall objective of the Subdivision which is to give effect to foreign orders in situations where property related to serious foreign offences is located in Australia. It is not the intention of the regime in Subdivision A that issues relating to the validity of the foreign order be considered by Australian courts. These matters are most appropriately dealt with by the foreign court (either at the time the order is issued, or on application for review of the order).”

65. Having regard to terms of s 33A, and the scheme of the registration of foreign orders provisions of the MACM Act as a whole, it appears to me that s 35F(2) is intended to be a deeming provision. The relevant effect of s 35F(2), then, is simply to deem the amount that has been specified by the foreign pecuniary penalty order as the relevant amount. The amount that the Court may direct the Official Trustee to pay is that amount or a lesser amount, depending on the value of the property.

66. The only reason advanced in these proceedings why an order should not be made under s 35F in respect of the proceeds of sale of the Darling Point property was that Ms Young had an interest in that property. For the reasons given above, I have rejected that contention. There does not appear to me to be any other reason why an order should not be made under s 35F(1).

67. Accordingly, I propose to make an order the effect of which will be to direct the Official Trustee to pay to the Commonwealth an amount out of the surplus proceeds of sale of the Darling Point property equal to the value of the property, namely $412,562.08, which is less than the amount outstanding under the foreign pecuniary penalty order which has been registered in this Court.

The three motor vehicles

68. It was not in dispute and the evidence supported the conclusion that, at relevant times, the owners of the three motor vehicles were as follows:

1. The Harley Davidson motorcycle – Mr Revell-Reade;

2. a Mini Cooper – Propertycorp; and

3. a Land Rover Defender – Propertycorp.

69. In addition, in Mr Revell-Reade’s Response to s 17 Proceeds of Crimes Act 2002 (UK), prepared by his solicitors Shearman Bowen & Co, for the purposes of proceedings in the Southwark County Court, it was stated:

“160 Assets of Oz Property Corp Pty Ltd

As the Oz Propertycorp Pty Ltd is held by Oz Managementcorp Pty Ltd then for the reasons set out earlier and at para 158 the defendant [Mr Revell-Reade] accepts that the assets of this company are realisable assets. This includes:

…

b) The Mini Cooper BTQ 54F …

c) And the Land Rover Defender BTQ 54G …

…

164 Harley Davidson Motorbike Registration number MSN72

The defendant accepts that the Harley Davidson is a realisable asset of his. …”.

70. Further, on 13 July 2020, Mr Revell-Reade signed a declaration that he relinquished any claim to both the legal title and any equitable interest in the three motor vehicles for the purpose of the confiscation order being satisfied. The declaration specifically states in par 3 that “[t]his declaration does not affect or extinguish any claims made by Andrea Young (or any other Interested Third Party) in [the three motor vehicles and other items of property listed]”.

71. In light of the findings made above and this information and for substantially the same reasons that are given above in relation to other property previously owned by Propertycorp, I find that the three vehicles were, when they were made the subject of the foreign restraining orders, property under the effective control of Mr Revell-Reade and had been purchased, in whole or in part, with funds provided directly or indirectly by him.

72. Both Ms Young and Pabnk Pty Ltd trading as Fairy Meadow Self Storage claimed an interest in the three motor vehicles.

Does Ms Young or Pabnk Pty Ltd have an interest in the three motor vehicles?

73. For the reasons already given, I find that there was no family trust which might potentially have led to Ms Young having any interest in the two vehicles owned by Propertycorp. Ms Young’s claim to an interest in the vehicles was, however, more focused on the amounts that she had paid in respect of the vehicles for storage, insurance and similar matters.

74. The evidence established that between 29 August 2012 and 29 December 2012, Ms Young paid for the three motor vehicles to be stored at Global Self Storage, Alexandria. It appears that the amount paid by her was $2,000.00 out of income previously earned by her.

75. The evidence in the form of emails from Global Self Storage and Fairy Meadow Self Storage annexed to Ms Young’s affidavit of 16 August 2018 establishes that in about late January 2013, the three vehicles were moved to Fairy Meadow Self Storage. The 13 May 2021 affidavit of Ms Arlene Mead, a director of Pabnk Pty Ltd, indicates at par 4 that the vehicles were stored at Fairy Meadow Self Storage from June 2014, but this is not consistent with her email of 4 May 2017 to Graham White of the Australian Federal Police. Any mistake may be the result of the unavailability of records because of a change in computer systems as referred to by Ms Mead in her affidavit.

76. In addition, there is some confusion as to how much Ms Young has paid by way of storage fees to Fairy Meadow Self Storage.

77. On the basis of the documentation before me, I find that the three vehicles were stored at Fairy Meadow Self Storage from January 2013 and that Ms Young paid $325 per month (apart from the first two months at $275 per month) for that storage between January 2013 and about September 2015 out of her previous earnings. On this basis, I am prepared to find that Ms Young paid Fairy Meadow Self Storage $10,300. Thereafter, the storage fees for the vehicles have not been paid.

78. Accordingly, it appears that Ms Young paid a total of $12,300 for storage of the three motor vehicles.

79. In addition, Ms Young paid insurance, registration fees and tolls in respect of the three motor vehicles totalling $7,159.83. Ms Young also says that she paid $204 to the National Roads and Motorists’ Association for roadside assistance.

80. Ms Young says that she was unable to move the vehicles out of storage after the foreign restraining orders were registered and contends that the Commissioner should be responsible for the storage costs paid by her. In addition, Ms Young submitted that the Land Rover was her personal vehicle and should be returned to her, and the other vehicles should be released to her in part payment of the amounts owed to her by Mr Revell-Reade.

81. Ms Young was never the legal owner of any of the three motor vehicles nor is there any evidence to support a conclusion that she had any equitable interest in any of them. The mere fact that she was allowed to use the Land Rover as her personal vehicle did not give her any relevant interest in that vehicle. Similarly and absent any agreement with the owner of the vehicles that she would obtain an interest in those vehicles if she paid for their storage, insurance, registration, tolls or roadside assistance, Ms Young did not obtain any relevant interest in the vehicles by the payments she made in respect of them. There was no evidence of any such agreement nor did Ms Young assert that there was one.

82. In all the circumstances, I am unable to find that Ms Young had or has any relevant interest, legal or equitable, in the three motor vehicles.

83. The three vehicles remained at Fairy Meadow Self Storage until 21 December 2020, when it appears that the Official Trustee took possession of them in accordance with the orders made on 16 December 2020 by Campbell J under s 35 of the MACM Act, referred to above.

84. The amount of the unpaid storage fees for the period from about September 2015 to December 2020 is calculated by Ms Meade to be $30,625 and this was not challenged by the Commissioner. I accept that this is the amount outstanding.

85. The Commissioner also accepted in the present proceedings that, by operation of the Storage Liens Act 1935 (NSW), Pabnk Pty Ltd had had a lien over the three motor vehicles for unpaid storage fees and that lien was an interest in the vehicles which should be taken into account when determining what orders should be made under s 35F of the MACM Act. Furthermore, in correspondence between the Australian Federal Police and Ms Meade, Federal Agent White expressly stated to Pabnk Pty Ltd that “any outstanding accounts [for storage] will be paid from the proceeds of the auction [of the three vehicles]”.

86. In these circumstances and having regard to the Commissioner’s acceptance that Pabnk Pty Ltd’s position should be so recognised, I am satisfied that Pabnk Pty Ltd should be treated as having an interest in the three vehicles to the extent of $30,625 by reason of its lien.

Application of s 35F of the MACM Act in relation to the three motor vehicles

87. For the reasons explained above, it appears to me that the three motor vehicles, when they were made the subject of the foreign restraining orders, were property of, or under the effective control of, Mr Revell-Reade.

88. Having regard to the UK restraint orders and confiscation orders and the orders of this Court and all the circumstances set out above, I am satisfied that, for the purposes of s 35F of the MACM Act:

1. foreign restraining orders have been made against the three motor vehicles in reliance on Mr Revell-Reade’s alleged commission of, and conviction for, a foreign serious offence namely conspiracy to defraud;

2. the foreign restraining orders have been registered under Subdiv A of Div 2 of Pt 6 of the MACM Act;

3. foreign pecuniary penalty orders have been made against Mr Revell-Reade in relation to his conviction for conspiracy to defraud;

4. the foreign pecuniary penalty order has been registered under Subdiv A of Div 2 of Pt 6 of the MACM Act; and

5. an order has been made under s 35 of the MACM Act ordering the Official Trustee to take control of the three motor vehicles.

89. The requirements of s 35F(1)(a) to (e) being satisfied in respect of the three motor vehicles, the Court may make an order directing the Official Trustee to pay to the Commonwealth an amount out of that property.

90. Ms Young submitted that she had an interest in those vehicles and any order under s 35F in respect of the proceeds of sale of the vehicles should require the Official Trustee to pay to her the amounts spent on storage, insurance and similar matters before any amount was paid to the Commonwealth. She has, however, not established that she had any relevant interest in the property. Consequently, I am not persuaded that I should direct the Official Trustee to pay any amount to Ms Young prior to making any payment to the Commonwealth as a result of direction under s 35F(1).

91. In light of the position which was effectively agreed between the Commissioner and Pabnk Pty Ltd, and my conclusions referred to above in relation to unpaid storage fees, I propose to make a declaration under s 35B of the MACM Act recognising Pabnk Pty Ltd’s interest.

92. Provided Pabnk Pty Ltd’s interest is recognised, there does not appear to me to be any other reason why an order should not be made under s 35F(1).

93. Consequently, I propose to make an order under s 35F(1) of the MACM Act directing the Official Trustee to pay out of the proceeds of sale of the three vehicles after their sale at auction, first the sum of $30,625 to Pabnk Pty Ltd, then the Official Trustee’s expense of the auction and then to pay any remaining amount to the Commonwealth.

Further correspondence

94. On 6 July 2021, the Court received an email from Ms Young seeking assistance from the solicitors for the plaintiff concerning the property which was the subject of the orders made on 25 June 2021 and some insurance claims. In addition, Ms Young sought to remind the Court of various claims she had made. As this correspondence was without leave and the other parties have not had an opportunity to consider or respond to it, I have not taken it into account in reaching my conclusions. Nonetheless, it did not appear to me that it would have added anything of substance to Ms Young’s claims.

Costs

95. Pabnk Pty Ltd also sought payment of its costs on the basis that its participation in the proceedings had been necessary in order to protect its interest and it had been successful in doing so. The Commissioner opposed the making of such an order noting the unusual nature of the proceedings under the MACM Act in which the Commissioner did not seek his costs against any party asserting an interest. Further, it was said, if costs were to follow the event, the Commissioner has been successful in obtaining the orders sought. It was also submitted that, even though the Commissioner was the moving party, it would not be appropriate to order him to pay the costs incurred by others in ensuring that their interests were protected in the proceedings.

95. In my view, it is not appropriate to order the Commissioner to pay Pabnk Pty Ltd’s costs.

96. These proceedings are unusual in the Commissioner is not pursuing any rights in his own interest or in the interests of the Australian Federal Police. He is assisting the Commonwealth to provide international assistance in criminal matters where a request for such assistance has been made by a foreign country. There is a legitimate public interest in Australia co-operating with other countries in international criminal law enforcement.

97. The MACM Act does not deal with the payment of costs of proceedings except in s 35E which provides:

“The court that:

(a) registers a foreign restraining order against property under Subdivision A of Division 2; or

(b) makes an order under section 35 in relation to property;

may, upon application of a person who claims an interest in the property, make an order as to the giving or carrying out of an undertaking, on behalf of the Commonwealth by the proceeds of crime authority authorised under section 34, with respect to payment of damages or costs relating to the registration, making or operation of the order.”

99. This suggests that the Parliament intended costs might be awarded as a result of an undertaking given on behalf of the Commonwealth. The absence of any other reference to costs of proceedings might indicate that it was not intended that the party acting on behalf of the Commonwealth should generally be liable for costs of a person seeking to protect an interest. Alternatively, it might indicate that the Parliament intended the usual costs provision of the court in question to apply.

100. Where, however, the party acting on behalf of the Commonwealth does not contest a claimant’s interest and facilitates the making of orders protecting that interest, it appears to me, that a costs order in favour of the claimant may well be inappropriate.

101. In the present case, the Commissioner, through Federal Agent White, informed Pabnk Pty Ltd of the Commissioner’s position in the email of 11 September 2017, as follows:

“The intention is for the Official Trustee … to auction the property [the three motor vehicles] and any outstanding accounts will be paid from the proceeds of the auction”.

102. This position was maintained by the Commissioner in these proceedings. The Commissioner sought to give effect to this position by the terms of the proposed orders provided to the Court, which included a declaration recognising Pabnk Pty Ltd’s interest and a direction that the amount of the outstanding storage fees be paid out of the proceeds of sale prior to other payments. While it was proper for Pabnk Pty Ltd to appear on the present application, I do not accept that it was necessary for it to do so since the Commissioner had indicated his intention to recognise Pabnk Pty Ltd’s interest in the manner set out in the email, did not resile from this position and made submissions and provided draft orders recognising that interest.

103. In all the circumstances, I decline to order the Commissioner to pay Pabnk Pty Ltd’s costs. In order to make the position clear I propose to order that each party is to pay his, her or its own costs.

Orders

104. For the reasons set out above, the orders of the Court are:

1. Pursuant to section 35F (1) of the Mutual Assistance in Criminal Matters Act 1987 (Cth) (the Act), the Court directs that, in partial satisfaction of the foreign pecuniary penalty order registered by this Court on 20 March 2019 (the Foreign Pecuniary Penalty Order), the Official Trustee in Bankruptcy pay to the Commonwealth the whole of the property described in Schedule One, being property restrained under the foreign restraining orders registered by this Court on 18 March 2014 and 21 June 2016 (the Foreign Restraining Orders).

2. Pursuant to section 35B of the Act the Court declares that:

1. Pabnk Pty Ltd ACN 117 537 587 (Pabnk) has an interest in the property described in Schedule Two, being property restrained under the Foreign Restraining Orders, in the nature of a lien in respect of unpaid storage costs (totalling $30,625) arising from an agreement for storage of the property described in Schedule Two; and

2. The Commonwealth’s charge over the property in Schedule Two is subject to Pabnk’s encumbrance on the property described in paragraph (a).

3. Pursuant to sections 35B, 35F (1) and (3) of the Act, the Court directs that the Official Trustee sell or otherwise dispose of the property described in Schedule Two, being property restrained under the Foreign Restraining Orders, and apply the proceeds as follows:

1. first in payment of Pabnk’s total unpaid storage costs totalling $30,625;

2. next in payment of the costs payable to the Official Trustee in respect of the property (including expenses incurred in connection with selling or disposing of the property); and

3. finally, pay any balance to the Commonwealth in accordance with section 35G of the Act.

4. Each party is to pay his, her or its own costs.

SCHEDULE ONE

Surplus sale proceeds of the property at 1/16 – 18 Thornton Street, Darling Point, New South Wales, 2027, being $410,940 and $1,622.08 held in the custody and control of the Official Trustee, plus any interest earned thereon.

SCHEDULE TWO

1. Harley Davidson Motorcycle index MSN 72

2. Mini Cooper index BTQ 54F

3. Land Rover Defender index BTQ 54G

**********

Decision last updated: 06 July 2021