Commissioner of the Australian Federal Police v Robert Francis Agius

[2017] NSWSC 1764

Supreme Court

New South Wales

Medium Neutral Citation:

Commissioner of the Australian Federal Police v Robert Francis Agius [2017] NSWSC 1764

Hearing dates:

12 December 2017

Date of orders:

15 December 2017

Decision date:

15 December 2017

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) Pursuant to section 38 of the Proceeds of Crime Act 2002 (Cth) (Act), the Official Trustee in Bankruptcy (Official Trustee) is to take custody and control of the property comprised of Lot 16 in Strata Plan 22481 at Sydney, Local Government Area: Sydney being Unit 16/533 Kent Street, Sydney in the State of New South Wales (Unit).

 

(2) Pursuant to section 283(1)(a) of the Act, in order to enable the Official Trustee to comply with the directions pursuant to s 282(1) of the Act contained in Order 3, the Court directs the Official Trustee to sell or otherwise dispose of the Unit PROVIDED THAT the completion of any sale by the Official Trustee is not to occur earlier than 30 June 2018.

 

(3)   The Court directs the Official Trustee to pay the following amounts out of the proceeds of the sale of the Unit:
(a)   firstly, payment of any statutory charges or rates owing in relation to the Unit;
(b)   secondly, the sum of $350,000 to Butlers Business Lawyers Pty Limited, being the amount secured by registered mortgage AF794347 over the Unit;
(c) thirdly, pursuant to section 284 of the Act, all legal and other fees, costs, charges and expenses incurred by the Official Trustee in relation to the sale of the Unit pursuant to Order 2;
(d) fourthly, pursuant to section 282(1), payment to the Commonwealth of an amount equal to $580,295, being the penalty amount under the pecuniary penalty order made in these proceedings on 1 July 2016, or so much of the penalty amount as possible; and
(e)   fifthly payment of strata levies, interests and costs owing at the time of settlement of the sale of the Unit pursuant to Order 2.

 

(4) Pursuant to section 283(1)(b) of the Act, in order to enable the Official Trustee to comply with the direction contained in Order 3, the Court orders that the Official Trustee be appointed, if necessary, to execute any deed or instrument in the name of the first defendant and/or any other person or entity who owns or has an interest in the property that the Official Trustee seeks to sell or otherwise dispose of and to do any act or thing necessary to give validity and operation to any such deed or instrument, as may be necessary for giving effect to Orders 2 and 3.

 

(5) The first defendant is to pay the plaintiff’s costs of the notice of motion filed 15 September 2017.

 

(6) The first defendant’s notice of motion is dismissed.

(7) Pursuant to the provisions of section 7 of the Court Suppression and Non-Publication Orders Act, I make a non-publication order over the publication of this judgment.
(i)   Pursuant to s 8(1)(a), the order is necessary to prevent prejudice to the proper administration of justice.
(ii)   Pursuant to s 11, the order is to have effect throughout the Commonwealth.
(iii)   Pursuant to s 12 the order is to remain in force until the conclusion of the trial of Robert Francis Agius scheduled to commence before Adamson J in February 2018.
(iv)   Pursuant to s 9(5) the non-publication order does not apply to publication of the judgment on NSW Caselaw or other legal web-sites.

Catchwords:

CIVIL LAW – proceeds of crime – whether to direct Official Trustee to sell property and distribute proceeds – priority of interests – where pecuniary penalty order exists – statutory charge – whether to grant a stay of proceedings – where appeal against pecuniary penalty order is contemplated – where time limit for appeal expired over a year ago – where application for special leave to appeal against conviction contemplated – where time limit long ago expired – reasons for delay in instituting appeals – serious medical conditions – where outstanding strata levies to the Owners Corporation exist

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW)
Proceeds of Crime Act 2002 (Cth)
Strata Schemes Management Act 2015 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Abibadra v The Queen; Jandagi v The Queen; Zerafa v The Queen; Agius v The Queen [2011] HCATrans 171
Agius v R [2015] NSWCCA 200
Agius v The Queen [2013] HCA 27
Agius v The Queen [2013] HCATrans 30
Commissioner of the AFP v Agius [2016] NSWSC 894
Commissioner for the Australian Federal Police v Robert Francis Agius [2016] NSWSC 1695
R v Agius and others [2011] NSWSC 367

Category:

Principal judgment

Parties:

The Commissioner of Australian Federal Police (Applicant)
Robert Francis Agius (First Defendant)
Butlers Business Lawyers Pty Ltd trading as Butlers Business Lawyers (Second Defendant/Interested Party)
The Owners – Strata Plan No 22481 (Third Defendant/ Interested Party)

Representation:

Counsel:

 

Mr L Livingston (Plaintiff)
Mr N Kulkarni (Second Defendant)

 

Solicitors:

  Criminal Assets Litigation, Australian Federal Police (Plaintiff)
Self-Represented (First Defendant)
Butlers Taxation and Business Lawyers Pty Ltd (Second Defendant/Interested Party)
Ms N Hendry (Third Defendant/Interested Party)

File Number(s):

2008/284246

Publication restriction:

See paragraph [52]

Judgment

1. By notice of motion dated 15 September 2017 the Commissioner of the Australian Federal Police seeks a number of orders pursuant to the provisions of the Proceeds of Crime Act 2002 (Cth) (“the Act”). The orders sought are directed to the Official Trustee and relate to the disposal of a property known as 16/533 Kent Street Sydney. The registered proprietor of that property is Robert Francis Agius who is the first defendant named in the notice of motion. The property is subject to a restraining order pursuant to the Act as well as to a charge arising from a pecuniary penalty order in the sum of $580,295 made by R A Hulme J on 1 July 2016. By order of 3 May 2013 and pursuant to s 94 of the Act, the property was excluded from automatic forfeiture.

2. The first defendant appeared for himself on the hearing of the notice of motion. A mortgagee (Butler’s Business Lawyers), who is also named in the notice of motion and the orders sought thereunder, was represented by counsel on the hearing of the notice of motion but not did not seek to be heard against the orders sought by the plaintiff. The Owners Corporation of Strata Plan 22481, which under the Strata Schemes Management Act 2015 (NSW) (“the Strata Act) is in control of the unit block in which the Kent Street apartment is located property, was also represented at the hearing of the notice of motion. It is also affected by the orders sought by the Plaintiff. As at the date of the hearing there are unpaid strata levies (to use a general term) in an amount of $66,809.13 payable to the Owners Corporation. The Owners Corporation seeks a variation on the orders sought by the plaintiff. In brief terms, the Owners Corporation submits that the unpaid levies should take priority over the payment of the pecuniary penalty order owed to the Commissioner, if orders are made for the Official Trustee to sell the property and distribute the proceeds of the sale.

3. The first defendant opposes the making of the orders and, by separate notice of motion, seeks an order staying the proceedings “until the results of any appeals to the decision of [R A Hulme J]”. In addition to the precise orders sought in the notice of motion, and as explained in argument, the first defendant seeks that the stay should extend to the finalisation of any appeals relating to the criminal proceedings under which the first defendant was convicted.

4. At the conclusion of oral argument, I made orders under the Court Suppression and Non-Publication Orders Act 2010 (NSW) which are calculated to protect the integrity of criminal proceedings due to commence in this Court before Adamson J and a jury mid-February 2018. Those orders were necessary to prevent prejudice to the proper administration of justice. That is, they were necessary to protect prejudicial material coming to the attention of the jury to be empanelled in that trial by virtue of media coverage of the present proceedings which must, by necessity, refer to the first defendant’s earlier convictions.

5. The plaintiff read without objection two affidavits. The first was an affidavit of Rebecca Anne Wood along with three annexures. The first of those annexures was the judgment of Justice Hall in a case known as Commissioner for the Australian Federal Police v Robert Francis Agius [2016] NSWSC 1695. In that decision, Hall J made declarations that the transfer of the mortgagee as sought by the first defendant would not, and did not, constitute a breach of the restraining orders made on 28 April 2008 in respect of the subject property.

6. The plaintiff also read an affidavit of Steven Scott Davidson along with a number of annexures. That affidavit and its annexures went to the correspondence and dispute between the plaintiff and the Owners Corporation as to the order of priority of the distribution of the proceeds of the sale of the property should the Official Trustee be directed to organise its sale. The affidavit of Mr Davidson was supplemented by the tender of the last two pieces of correspondence between the Commissioner and the lawyers representing the Owners Corporation. Those letters became Exhibits A and B.

7. The first defendant called his son to give evidence. His son currently resides in the property in Kent Street although he is, generally, a resident of Vanuatu. He is currently undertaking intensive medical treatment for Non-Hodgkin's lymphoma. The medical treatment includes chemotherapy as a result of which, as I understand it and to put it in layman's terms, his immune system is compromised such that he is unable to travel on public transport or allow himself to be exposed to the possibility of infection from mixing with other people during the more intense stages of the treatment. There is also stem cell therapy being undertaken. His evidence was not seriously contested. Rather, the cross examination of the defendant's son was calculated to establish that he would be able to find alternative accommodation in proximity of the hospital if given a reasonable amount of time. In light of his evidence that he could find such accommodation by 30 June 2018, the plaintiff suggested possible amendments or variations to the orders sought in the notice of motion. These amendments would reduce or eliminate any risk that the sale of the property might compromise the defendant's son’s medical treatment or otherwise operate oppressively in that regard.

8. The first defendant also sought to tender an affidavit. However the plaintiff objected to that document on the basis that it ultimately constituted submissions rather than evidence. The first defendant agreed in the course of argument that the matter might appropriately be marked for identification, rather than as an exhibit, and that is the course that was taken. Accordingly pages 1 to 13 of the first defendant's affidavit became MFI 1. That document set out in helpful detail the kinds of argument that might be made if the judgment of R A Hulme J (making the pecuniary penalty order) was subject to an appeal. It included an attack on the veracity and reliability of some of the evidence tendered in the earlier proceedings.

9. The first defendant also tendered without objection a number of documents including a document (Exhibit 1) which set out a number of the first defendant's medical conditions and the disruptive nature of his custodial situation. This material was relevant both to the exercise of the discretion to make the kinds of orders sought by the plaintiff and also to explain the reason why appeals against the criminal conviction have not proceeded to the High Court and why the proposed appeal against the decision of R A Hulme J is yet to be filed. Exhibit 2 was a memorandum to some of the first defendant's lawyers. Exhibit 3 was a document relating to a taxation issue and Exhibit 4 was the revocation of a power of attorney. All of the first defendant's exhibits were admitted without objection.

10. A convenient summary of the factual background of the matter can be found in the decision of Justice Hall’s: The Commissioner for the Australian Federal Police v Agius [2016] NSWSC 1695 from paragraph [8] to [26]. In summary, by reference to Justice Hall’s judgment and other transcripts and judgments on legal web-sites, the relevant chronology is as follows:

11. On 28 April 2018, this Court made three restraining orders including a restraining order relating to the property in Kent Street. At that time there was an existing registered mortgage as security for a loan in the sum of $350,000.

12. It seems that was after he was charged with criminal offences of conspiracy to defraud the Commonwealth, but in any event, the first defendant fell into default in relation to the loan.

13. The criminal proceedings commenced before Simpson J (as her Honour then was) in early 2011. On 4 May 2011 Simpson J refused to order a stay of the proceedings based on the form of the charge, changes in the legislative provisions relating to the offence of conspiracy and duplicity: R v Agius and others [2011] NSWSC 367.

14. On 24 May 2011, the NSW Court of Criminal Appeal dismissed an appeal under s 5F Criminal Appeal Act 1912 (NSW) against the refusal to order a permanent stay: Agius and others v R [2011] NSWCCA 119. On 15 June 2011 the High Court (Gummow and Bell JJ) dismissed an application for special leave against that decision: Abibadra v The Queen; Jandagi v The Queen; Zerafa v The Queen; Agius v The Queen [2011] HCATrans 171. The basis of the decision was the reluctance of the appellate courts to interfere with the process of criminal proceedings. As will be seen, special leave was later granted and the point determined by the full High Court.

15. On 31 July 2012 the first defendant was convicted of two counts of conspiring to defraud the Commonwealth.

16. On 23 August 2012, the first defendant was sentenced to a fixed single non-parole period of six years and eight months. That non-parole period is due to expire on 30 March 2019.

17. On 15 February 2013, the High Court (Heydon and Bell JJ) granted special leave in respect of the refusal to grant the permanent stay: Agius v The Queen [2013] HCATrans 30. That is, the High Court revisited its earlier refusal which, it will be recalled, was based on the undesirability of fragmenting the criminal proceedings. The matter was heard by the full Court (French CJ, Hayne, Crennan, Kiefel and Bell JJ) on 30 April 2013. Ultimately, special leave to appeal against the interlocutory order was revoked and the appeal was treated as an appeal against conviction. However, that appeal was limited to the ground relating to the form of the charge and duplicity in the context of the change in the legislative provisions relating to conspiracy.

18. On 3 May 2013 this Court made an order by consent excluding the subject property from automatic forfeiture. I interpolate that the current proceedings do not relate to forfeited property but rather arise as a result of a statutory charge arising from the pecuniary penalty orders.

19. On 5 June 2013, the High Court dismissed the appeal against conviction based on the limited ground inelegantly summarised in [17] above: Agius v The Queen [2013] HCA 27. The decision left open the possibility that an appeal against the conviction based on other grounds might be dealt with by the Court of Criminal Appeal. Such an appeal was subsequently heard and determined.

20. On 17 October 2014, the Court of Criminal Appeal heard the applicant’s appeal against conviction and sentence. On 5 August 2015 the appeal against conviction and sentence was dismissed: Agius v R [2015] NSWCCA 200.

21. On 1 July 2016 R A Hulme J handed down his decision under which he made a pecuniary penalty order pursuant to s 116 of the Act. His Honour ordered that the defendant pay to the Commonwealth a pecuniary penalty in the amount of $580,295: Commissioner of the AFP v Agius [2016] NSWSC 894.

22. On 1 December 2016 Hall J made a declaration that the substitution of the current mortgagee in relation to the $350,000 debt would not constitute a contravention of the restraining order.

23. Section 116 of the Act provides the Court with jurisdiction to make a pecuniary penalty order in the nature of the order made by R A Hulme J. Section 119 provides that the Court may then make orders ancillary to the pecuniary penalty order either at the time that order is made "or at a later time".

24. Section 140(4) provides that the debt arising from a pecuniary penalty order "is taken to be a judgment debt". Section 142 provides that where a pecuniary penalty order is made, and a restraining order has been made, and the orders relate to the same offence:

"then, upon the making of the later of the orders, there is created, by force of this section, a charge on the property to secure the payment to the Commonwealth of the penalty amount".

25. The legal impact of section 142(1) is that a statutory charge under the section came into existence on 1 July 2016, that is, on the day that R A Hulme J made the pecuniary penalty order.

26. Subsection 142(3) is relevant to the order in which creditors are to be paid upon the sale of a property subject to such a charge:

142 Charge on property subject to restraining order

…

(3)  The charge:

(a)  is subject to every encumbrance on the property (other than an encumbrance in which the person referred to paragraph (1)(a) has an interest) that came into existence before the charge and that would, apart from this subsection, have priority over the charge; and

(b)  has priority over all other encumbrances; and

(c)  subject to subsection (2), is not affected by any change of ownership of the property.

27. Section 143 provides that a charge created by s 142 may be registered on the title. That provision appears to have no particular significance in the present case, but the fact is that the statutory charge is in fact registered on the title and the certificate of title is Annexure C to the affidavit of Ms Wood.

28. Section 282 makes provision for the kinds of orders sought in the current notice of motion. It is unnecessary to go into further detail of that provision because there appears to be no dispute, and no real doubt, that the combination of sections 119 and 282 of the Act authorise the making of orders such as the kind sought in this case. Sections 283 and 285 also provide provisions relevant to the making of such orders.

29. Counsel for the plaintiff conceded that the use of the word "may" in various of the relevant provisions provides the Court with a discretion in relation to whether to make the kinds of orders sought and, perhaps more relevantly in the circumstances of the present case, to fashion orders which facilitate the practical operation of the statutory regime and to alleviate any unnecessary oppression or inconvenience that may be caused by the operation of the provisions. This was a responsible, balanced, fair and compassionate approach to take in the circumstances of this case. However, the breadth of any such discretion, and the circumstances in which the Court might exercise it when all other relevant criteria under the Act are satisfied, may be subject to legitimate debate.

30. In the present case, based on the material before me, I am satisfied that those criteria have been met and that, subject to a consideration of the first defendant's notice of motion and the precise form of the orders, that it is appropriate to make the kinds of orders sought by the plaintiff.

31. There remains to be considered the first defendant's application for a stay and the contentions made on behalf of the Owners Corporation that its interests should take priority over those of the Commissioner of Police under the provisions relating to the pecuniary penalty order and directions that might be made to the Official Trustee.

27. As to the question of a stay, the substantial argument put by the first defendant that is that the proceedings should be stayed until he has had the opportunity to extinguish all relevant appeal rights.

28. I accept that the first defendant is a man suffering from a significant number of medical conditions and that it is extremely difficult for a person in custody who is transferred to and from various gaols, to find the time and energy either to instruct lawyers to institute an appeal or to prepare the necessary paperwork to institute and prosecute such an appeal on their own behalf.

29. Even so, the reality is that the decision of R A Hulme was made on 1 July 2016 and any appeal ought to have been lodged within 28 days of that date: Uniform Civil Procedure Rules 2005 (NSW) r 51.16. It will be seen that the time for the lodging of an appeal expired around one year and four months ago.

30. It might be accepted that the matters raised in the document that became MFI 1 (to be treated as submissions), if they have substance, may found a successful appeal. However, I have no way of knowing whether they have substance and this application is not an occasion to revisit matters determined after a full hearing by R A Hulme J. Those matters can only properly be subject to review by the Court of Appeal if an appeal is instituted.

31. In the circumstances, I am not satisfied that the prospect that an appeal might at some stage be lodged constitutes a sufficient basis to stay the proceedings or to decline to make orders that the Court would otherwise be inclined, if not bound, to make under the provisions of the Act.

32. As to an appeal in the criminal proceedings, the only decision that might be open to appeal is the decision of the Court of Criminal Appeal delivered on 5 August 2015. That is over two years ago and there is no evidence that an application for special leave to appeal to the High Court has been instituted. Clearly, such an application is well out of time. While a review of the transcripts of proceedings in the High Court shows that it is rare for the prosecution to oppose an extension of time in which to seek special leave, the simple fact is that there is no evidence that a special leave application is to be instituted and, if so, when it is to be lodged.

33. There may be, as the first defendant submits, grounds upon which to appeal against the decision made by the Court of Criminal Appeal. However, coming to any conclusion in that regard would be an exercise in speculation.

34. I am not satisfied that the prospect that an application for special leave to appeal may, at some stage in the future be lodged, is a sound basis to refuse to make the orders that the Court would otherwise make. Even less is it a reason to order a stay of the proceedings.

35. Accordingly I do not propose to order a stay of the proceedings or a stay of the execution of any orders made under the Act as sought in prayer 1 of the first defendant's notice of motion.

36. The second prayer in the first defendant's notice of motion raises the question of the priority that the outstanding strata levies should have in the distribution of the proceeds of any sale made by the Official Trustee. The Owners Corporation also made submissions on this issue.

37. The notice of motion sets out the order in which the plaintiff proposes that the Official Trustee be directed to distribute the proceeds of any sale of the unit as follows:

1. Firstly, payment of any statutory charges or rates owing in relation to the Unit.

2. Secondly, the sum of $350,000 to Butlers Business Lawyers Pty Limited, being the amount secured by registered mortgage AF794347 over the Unit;

3. Thirdly, pursuant to section 284 of the Act, all legal and other fees, costs, charges and expenses incurred by the Official Trustee in relation to the sale of the Unit.

4. Fourthly, pursuant to section 282(1), payment to the Commonwealth of an amount equal to $580,295, being the penalty amount under the pecuniary penalty order made in these proceedings on 1 July 2016, or so much of the penalty amount as possible.

5. Fifthly payment of strata levies (interests and costs) owing at the time of settlement of the sale of the Unit.

43. The first defendant submitted that the strata levies should be paid as part of the “first payments with the statutory charges or rates prior to any other distribution”. That is, as I understand it, the first defendant submits that the strata levies should be paid at the same time as payment of the items listed in sub-paragraph (a) set out in the last preceding paragraph.

44. The Owners, ably represented by Ms Hendry, submitted that the strata levies should be paid before the payment under (d), that is, the payment of the pecuniary penalty. Ms Hendry’s submissions were cogent and practical. She submitted that the practical reality is that the sale and conveyance of the property might be thwarted or jeopardised if the strata levies, interest and costs owing at the time of settlement remained outstanding and if there remained a question mark over whether they would be paid. She made the point that those levies attach to the land (or unit) itself and, if a potential purchaser was aware that there was an issue over the outstanding $66,809.13, they may decline to enter a contract to purchase the unit or refuse to complete the sale and transfer. I accept that this is a legitimate concern.

45. However, the extent to which it truly is a legitimate concern is not known to me because there is no evidence, and no submission was made, as to the value of the Kent Street property and what it might yield in the course of a forced sale pursuant to the Proceeds of Crimes Act. The concern is manifest by the terms of item (d) where it says “or so much of the penalty amount as possible”.

46. The plaintiff took me to section 86 of the Strata Schemes Management Act to substantiate the submission that, whatever status the outstanding strata levies and charges may have, they do not constitute a debt that is secured against the property (although, I take it to be common ground, that they attach to the property). By contrast, the charge created by section 142 of the Proceeds of Crimes Act is so secured and is registered on the title deeds. The plaintiff relies on the clear provision in s 142(3) which notes that the charge has "priority over all other encumbrances". That is a reference back to sub-section (3) which refers to encumbrances on the property that came into existence before the statutory charge. For completeness I notice the definition of “encumbrance” in section 338:

Encumbrance, in relation to property, includes any interest, mortgage, charge, right, claim or demand in respect of the property.

47. “Interest” is also defined in section 338.

48. Whilst the practical considerations raised by Ms Hendry are real and her proposal is an attractive one in terms of ensuring the efficient conduct of the sale of the property, I am unable to conclude that those considerations can take priority over the terms of Proceeds of Crimes Act. Section 142 appears clearly enough to give priority to the payment of the pecuniary penalty order and the statutory charge that arises from the making of that order. No submission to the contrary was made by reference to the definition of “encumbrance”, “interest” or otherwise.

49. Accordingly, I find in favour of the plaintiff on this issue and propose, subject to one matter, to make orders in accordance with the notice of motion. However, it would be open to the Commissioner to make an undertaking to ensure that the Owner’s Corporation is paid before the satisfaction of the pecuniary penalty order or out of the money paid to the Commissioner. Such an undertaking may facilitate the timely sale of the property and ensure that innocent parties (that is, the members of the Owner’s Corporation) are not left out of pocket in consequence of a government agency pursuing its rights under a piece of legislation that does, at times, have a capacity to operate somewhat harshly.

50. The “one matter” referred to in the last paragraph concerns the situation of the first defendant's son, his medical treatment, and his need for time to organise alternative accommodation during the course of his chemotherapy and other medical treatment for cancer. I am attracted by, and propose to act upon, the compromised position put forward by counsel for the plaintiff. In other words, based on the evidence of the first defendant's son, I find that he will be able to organise alternative accommodation if the settlement of the sale is delayed until 30 June 2018. I propose to adopt the form of order proposed by counsel for the plaintiff. [1]

    1. Transcript of Proceedings pg 37.

51. I also note that Adamson J has made certain non-publication orders in order to protect the integrity of the first defendants criminal trial due to commence in February 2018. I made orders preventing the publication of the evidence and submissions made on the hearing of the present notice of motion. I also propose to make orders in relation to this judgment. However, there are many judgments published on legal web-sites which disclose the matters to which the orders made by Adamson J relate. Accordingly, I propose to make a non-publication order but to carve out an exception for publication of this judgment on NSW Caselaw and other legal web-sites. Such a course is authorised by s 9(4) of the Courts Suppression and Non-publication Orders Act.

52. For those reasons, I make the following orders: –

1. Pursuant to section 38 of the Proceeds of Crime Act 2002 (Cth) (Act), the Official Trustee in Bankruptcy (Official Trustee) is to take custody and control of the property comprised of Lot 16 in Strata Plan 22481 at Sydney, Local Government Area: Sydney being Unit 16/533 Kent Street, Sydney in the State of New South Wales (Unit).

2. Pursuant to section 283(1)(a) of the Act, in order to enable the Official Trustee to comply with the directions pursuant to s 282(1) of the Act contained in Order 3, the Court directs the Official Trustee to sell or otherwise dispose of the Unit PROVIDED THAT the completion of any sale by the Official Trustee is not to occur earlier than 30 June 2018.

3. The Court directs the Official Trustee to pay the following amounts out of the proceeds of the sale of the Unit:

1. firstly, payment of any statutory charges or rates owing in relation to the Unit;

2. secondly, the sum of $350,000 to Butlers Business Lawyers Pty Limited, being the amount secured by registered mortgage AF794347 over the Unit;

3. thirdly, pursuant to section 284 of the Act, all legal and other fees, costs, charges and expenses incurred by the Official Trustee in relation to the sale of the Unit pursuant to Order 2;

4. fourthly, pursuant to section 282(1), payment to the Commonwealth of an amount equal to $580,295, being the penalty amount under the pecuniary penalty order made in these proceedings on 1 July 2016, or so much of the penalty amount as possible; and

5. fifthly payment of strata levies, interests and costs owing at the time of settlement of the sale of the Unit pursuant to Order 2.

4. Pursuant to section 283(1)(b) of the Act, in order to enable the Official Trustee to comply with the direction contained in Order 3, the Court orders that the Official Trustee be appointed, if necessary, to execute any deed or instrument in the name of the first defendant and/or any other person or entity who owns or has an interest in the property that the Official Trustee seeks to sell or otherwise dispose of and to do any act or thing necessary to give validity and operation to any such deed or instrument, as may be necessary for giving effect to Orders 2 and 3.

5. The first defendant is to pay the plaintiff’s costs of the notice of motion filed 15 September 2017.

6. The first defendant’s notice of motion is dismissed.

7. Pursuant to the provisions of section 7 of the Court Suppression and Non-Publication Orders Act, I make a non-publication order over the publication of this judgment.

1. Pursuant to s 8(1)(a), the order is necessary to prevent prejudice to the proper administration of justice.

2. Pursuant to s 11, the order is to have effect throughout the Commonwealth.

3. Pursuant to s 12 the order is to remain in force until the conclusion of the trial of Robert Francis Agius scheduled to commence before Adamson J in February 2018.

4. Pursuant to s 9(5) the non-publication order does not apply to publication of the judgment on NSW Caselaw or other legal web-sites.

**********

Endnote

Decision last updated: 15 December 2017