Director of Public Prosecutions (SA) v HJB

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
DIRECTOR OF PUBLIC PROSECUTIONS (SA) v HJB & ORS
[2025] SASC 175
Decision of the Honourable Justice Stein
CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS - RESTRAINING OR FREEZING ORDER - VARIATION GENERALLY
Real property in Magill (“property”) in the eastern suburbs of Adelaide was restrained by order of this Court under the Criminal Assets Confiscation Act 2005 (SA). The registered proprietor is a corporation, the second respondent. The sole director of the second respondent, the first respondent, has been charged with drug trafficking offences under s 32(1) of the Controlled Substances Act 1984 (SA), which are the charges enabling the restraining orders over the property.
The first respondent on behalf of the second respondent, filed an interlocutory application seeking the payment of mortgage loan repayments, and other expenses relating to the property, out of cash sums seized by police and made the subject of restraining orders. The second respondent also seeks payment of ongoing expenses in relation to the property by the Director of Public Prosecutions and the reimbursement of expenditure incurred by others to cover the same kinds of expenses for the time that the property has been restrained.
Held (dismissing the interlocutory application):
1.sections 26 and 40 of the Criminal Assets Confiscation Act 2005 (SA) cannot be used as sources of power to make an order to which s 27 is directed;
2.the evidence adduced by the first respondent is insufficient to satisfy the Court that the conditions required to make an order under s 27 have been met.

Controlled Substances Act 1984 (SA) s 32(1); Criminal Assets Confiscation Act 2005 (SA) ss 6A, 24(1)(a), 26, 27, 28, 34, 35, 36, 37, 38, 40, 47(7), 98, 142, 220; Criminal Procedure Act 1921 (SA) s 5, referred to.
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; Hollington v F Hewthorn & Co Ltd [1943] KB 587; Leon Fink Holdings Ltd v Australian Film Commission (1979) 141 CLR 672; Mansfield v Director of Public Prosecutions (WA) (2006) 226 CLR 486; Commissioner of the Australian Federal Police v Hart (2018) 262 CLR 76; Lordianto v Commissioner of the Australian Federal Police (2019) 266 CLR 273; Commissioner of the Australian Federal Police v Kanjo (2019) 1 QR 568; Australian Securities and Investments Commission v Macks (No 2) (2019) 133 SASR 25, considered.

DIRECTOR OF PUBLIC PROSECUTIONS (SA) v HJB & ORS
[2025] SASC 175
Civil: Application

STEIN J: In June 2021, restraining orders were made pursuant to the provisions of the Criminal Assets Confiscation Act 2005 (SA) (“Act”) in relation to a property located in Magill (“Magill property”) in the name of Company 1, the second respondent to the action. A loan made by Beyond Bank Australia Ltd (“the Bank”) is secured by registered mortgage over the Magill property and guaranteed by Mr B, the first respondent. In 2023, restraining orders were made over three sums of cash being $10,715, $40,000 and $450 respectively (“cash sums”) found at the Magill property and seized by South Australia Police (“police”) on the basis the cash was under the effective control of Mr B. The Bank served on Company 1 and Mr B a notice of default which prompted Company 1 to apply to this Court for orders pursuant to ss 26, 27 and 40 of the Act for “an amendment to” the restraining orders. Company 1 seeks amendment to the restraining orders to enable it to meet the arrears and continuing obligations to the Bank from property the subject of the order comprising the cash sums. Company 1 also seeks an order that all ongoing costs, including mortgage payments, interest, fees, rates, insurance and other outgoings be paid by the Director of Public Prosecutions (“DPP”) pursuant to s 26 of the Act. Company 1 also seeks an order pursuant to s 40 of the Act that all previous and ongoing costs paid for by others, including but not limited to mortgage payments, interest, maintenance, statutory rates and fees, insurance and other outgoings in relation to the Magill property be protected and recouped from the Magill property if any order for forfeiture is made by the Court.
For the reasons that follow I have determined to refuse the application.
Background
In June 2021, an originating application for restraining orders pursuant to s 24(1)(a) of the Act was filed by the DPP, supported by an affidavit of Detective Brevet Sergeant Wilson. At that time, Mr B had been arrested and it was proposed he would be charged with trafficking in a large commercial quantity of a controlled drug. The originating application noted the DPP’s undertaking pursuant to s 26 of the Act to abide by any order the Court may make as to payment of damages or costs, or both, for the making and operation of the restraining orders. The affidavit in support, among other matters, asserted that the Magill property was “tainted property” owned by or subject to the effective control of Mr B who if, convicted of the offence, would become a prescribed drug offender. Mr B is the sole director, shareholder and secretary of Company 1. Company 1 is the sole registered proprietor of the Magill property.
In June 2021, a Judge of this Court made a restraining order in respect of the Magill property. The order was made upon the DPP’s undertaking in the terms contained in the originating application and was made subject to the rights of the Bank pursuant to the registered mortgage over the Magill property.
Mr B was thereafter charged with multiple counts of drug trafficking in a large commercial quantity of a controlled drug and other offences. The investigating officer deposed to suspecting Mr B being responsible for tracking and recording incoming bulk quantities of methamphetamine, recording distributions to sub-dealers and tracking, recording and collecting cash payments and making payments to syndicate suppliers.
When Mr B was arrested on 7 June 2021, three bundles of cash comprising the cash sums were found in locations at the Magill property, his home address, and seized. The investigating officer deposed to suspecting the cash seized was money received from the sale of methamphetamine. One specific bundle of cash seized from Mr B’s home address corresponded with a specific record on Mr B’s communication device. The investigating officer deposed to suspecting the seized cash was tainted, being the direct or indirect proceeds of the sale of illicit drugs.
A third amended originating application was filed in 2023 which sought a restraining order over the cash sums which were described as “seized and banked by” police with reference to specific Police Property Management System (“PPMS”) numbers. The affidavit in support of the third amended originating application described the cash sums, including the location where each bundle was found at the Magill property.
On 27 October 2023 restraining orders were made in relation to the cash sums. The orders refer to sums “seized and banked” by police, mirroring the terms of the amended originating application. However, the ex tempore reasons delivered that day referred to the cash being recorded in the PPMS and an exhibits log and being stored in police exhibit lockers.
In October 2024, the solicitors for the Bank wrote to Company 1 and Mr B to serve a default notice on the basis Company 1 was in default under a credit contract for a loan. The default notice was addressed to Company 1 and to Mr B. It stated that there was default under the credit contract and the mortgage securing the obligations under the credit contract through the failure to make repayments which were due, totalling approximately $25,000. The default notice stated that Company 1 was also in default by the fact it had been de-registered. The default notice required repayment of the outstanding amount, failing which the notice of default stated that the whole amount required to pay out the contract would become immediately due and payable, enforcement proceedings may be commenced and the Bank may take possession of, and sell, the mortgaged property. The whole amount required to pay out the credit contract was, at that date, approximately $436,000.
By letter dated 13 November 2024 from the Bank’s solicitors to Company 1, care of Mr B, the Bank confirmed agreement to postponing any further enforcement action until a specified date on a number of conditions, including the making of an application to the Court seeking a variation of the restraining order to allow for payment of arrears and ongoing repayments to maintain the loan account, an application for reinstatement of the deregistered borrower company, Company 1, and the reinstatement of the registration of Company 1 by the Australian Securities and Investments Commission (“ASIC”).
Mr B and Company 1 are unrepresented. Mr B made submissions on behalf of Company 1. Mr B indicated that the application was made pursuant to ss 40(1)(d) and 26 of the Act, but in the event that was unsuccessful, Company 1 relied on s 27 of the Act. I set out the details of the submissions made on behalf of Company 1 below.
The DPP opposed the application. In essence, the DPP contended that Mr B is the owner, or has effective control, of Company 1 and thus the Magill property and the cash sums. The DPP submitted that to allow the application for expenses to be paid from the cash sums would be contrary to the Act’s objectives because the cash sums are suspected to be proceeds of crime from the sale of illicit drugs, are retained as exhibits for the ongoing criminal proceedings and meet the definition of “tainted property” because Mr B is facing charges of which, if convicted, he would be a prescribed drug offender.
Purpose and scheme of the Act
The long title to the Act states that it is an Act to provide for the confiscation of proceeds and instruments of crime; to provide for the confiscation of property of certain drug offenders as an additional punishment for their offending and for other purposes.
The Court must make restraining orders if satisfied of the matters set out in s 24 of the Act. The Act allows expenses to be paid out of restrained property on satisfaction of specific matters set in s 27 of the Act and contains express powers to allow property to be excluded from restraining orders or for such orders to be revoked in certain cases.[1] Those powers are subject to specific limitations and conditions.
[1] See Criminal Assets Confiscation Act 2005 (SA), ss 28, 34-38.
The Act constitutes a statutory scheme with significant impact upon personal and property rights.[2] The purpose of the Act is to deprive certain persons, including those convicted of drug crimes, from profiting from their crimes. However, it contains limited and circumscribed measures to protect individual rights associated with the ownership of property.
[2] Mansfield v DPP (WA) (2006) 226 CLR 486 at [5] (Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ).
The objective of a freezing order, and similarly a restraining order, is to secure the prospective liability of the defendant to pay the State and accordingly the DPP is characterised as a contingent creditor.[3]
[3] Mansfield v DPP (WA) (2006) 226 CLR 486 at [43] (Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ).
The DPP enjoys immunity in the performance of his duties.[4]
[4] Criminal Assets Confiscation Act 2005 (SA), s 142.
Prescribed drug offender
Mr B is charged with offences against s 32(1) of the Controlled Substances Act 1984 (SA), that is, trafficking in a large commercial quantity of a controlled drug, which falls within pt 5, div 2 of the Controlled Substances Act 1984 (SA). The charged offence thus falls within the definitions of “serious drug offence”[5] and “commercial drug offence”[6] in s 6A of the Act, which sets out the circumstances in which a person will be a prescribed drug offender for the purposes of the Act. It follows that if he is convicted, Mr B will be a prescribed drug offender pursuant to s 6A of the Act.
[5] A serious drug offence is an offence against pt 5, div 2 or 3 of the Controlled Substances Act 1984 (SA) that is an indictable offence. An indictable offence is one that is not a summary offence, see Criminal Procedure Act 1921 (SA), s 5.
[6] A commercial drug offence is defined to include an offence against s 32(1) of the Controlled Substances Act 1984 (SA).
Mr B submitted that in circumstances in which the originating application for restraining orders was made under s 24(1)(a), consideration could not be given to s 6A of the Act. Further, he contended the DPP could not rely on affidavits filed after the restraining orders in relation to the cash sums were made and affidavits which did not relate to Company 1 could not be considered, or alternatively, little weight should be placed on them.
I do not accept Mr B’s submission that s 6A does not apply to him because the application for the restraining order relied on s 24(1)(a) of the Act. Section 24 addresses the circumstances in which a court must make a restraining order on application by the DPP. The definitions in s 6A depend on the nature of the offences with which a defendant is charged, and subsequently convicted or acquitted, and bear no relationship with the manner in which an application for a restraining order may be framed.
I also reject Mr B’s submission that the DPP could not rely on any affidavit filed after the restraining order was made. The DPP is entitled to file affidavit evidence in opposition to the application made by Company 1 for orders of the nature sought in the application. The DPP is not restricted to reliance on affidavits relating only to Company 1 because the restraining orders against Company 1 were made on the basis of the charges laid against Mr B and the fact that the Magill property, while in the name of Company 1, was subject to the effective control of Mr B as sole director, shareholder and secretary of Company 1 and the cash sums were in his effective control.
Onus of proof
Section 220 of the Act provides that the applicant in any proceedings under the Act bears the onus of proving the matters necessary to establish the grounds for making the order for which the applicant applied. The standard of proof is on the balance of probabilities.[7]
[7] Subject to the Criminal Assets Confiscation Act 2005 (SA), ss 47(7), 98.
Mr B’s position was that s 220 has the effect that the DPP bears the onus of proof in relation to any application including one brought by a party other than the DPP. I do not accept that submission. The words of s 220 do not support it. The reference to “any proceedings under this Act” properly read does not qualify “the applicant” as the DPP irrespective of the identity of the applicant on a specific application. A reference to “the applicant” in s 220 is properly understood to be a reference to the applicant seeking the orders for which the application is brought. In Lordianto v Commissioner of the Australian Federal Police,[8] the High Court considered an application for exclusion from restrained property. The onus of proof provision contained in the legislation under consideration was identical to s 220 of the Act. The High Court stated that an applicant for exclusion bears the onus of proving the matters necessary to establish the grounds for the exclusion order.[9] The same reasoning applies to an application under either s 27 or s 40 of the Act.
[8] (2019) 266 CLR 273.
[9] Lordianto v Commissioner of the Australian Federal Police (2019) 266 CLR 273 at [115] (Kiefel CJ, Bell, Keane and Gordon JJ); [124] (Edelman J).
Section 40
Section 40 is entitled “Ancillary orders”. It provides that a court that made a restraining order may make any ancillary orders the court considers appropriate including, without limiting the generality of the subsection, orders including an order varying the property covered by the restraining order and an order varying a condition to which the restraining order is subject.
Mr B contended that s 40(1)(b), which enables the Court to make an order varying a condition to which a restraining order is subject, allows the Court to make an order:
·for the payment of the arrears of the mortgage from the cash sums;
·for the payment by the DPP of all ongoing costs including, but not limited to, the mortgage repayments and all other outgoings associated with the Magill property; and
·that all previous and ongoing costs paid for by others be recouped from the Magill property in the event any order for forfeiture is made by the Court.
Mr B submitted that the orders sought under s 40(1)(d) are orders relating to an undertaking with respect to the payment of damages or costs pursuant to s 26 of the Act. Mr B contended that there is an obligation on the DPP to fund payments associated with the Magill property on the basis that the intention of the Act is not only to protect the State’s interests in property which may be later deemed forfeitable but also to protect the rights of the person whose property is restrained. He submitted that it would be contrary to s 40 of the Act for s 26 to only be utilised at the end of the proceedings.
The DPP submitted that the general power in s 40 cannot be used to circumvent a specific power, otherwise s 27 would have no role to play.
In Commissioner of the Australian Federal Police v Kanjo (“Kanjo”),[10] Philippides JA (with whom Gotterson JA agreed) referred to the restraint of property under Queensland legislation (containing provisions similar to the Act) as being a critical part of the scheme to ensure property that may be the subject of future forfeiture is not dissipated before it can be confiscated.[11] The circumstances in which property will be excluded are limited and the conditions strict.[12] His Honour referred to the principle of statutory construction to the effect that where legislation contains a specific power which prescribes the mode of exercise of the power and the conditions and restrictions on it, it excludes the operation of general expressions in the same legislation which may otherwise have been relied on for the power.[13] The ancillary power relied on in Kanjo could not be used to circumvent the specific and limited avenues for exclusion of property from a restraining order contained in the legislation.[14]
[10] (2019) 1 QR 568.
[11] Commissioner of the Australian Federal Police v Kanjo (2019) 1 QR 568 at [45] (Philippides JA) citing Commissioner of the Australian Federal Police vHart (2018) 262 CLR 76 at [66] (Gordon J with Kiefel CJ, Bell, Gageler and Edelman JJ agreeing).
[12] (2019) 1 QR 568 at [46] (Philippides JA with Gotterson JA agreeing) quoting Commissioner of the Australian Federal Police vHart (2018) 262 CLR 76 at [66] (Gordon J with Kiefel CJ, Bell, Gageler and Edelman JJ agreeing).
[13] Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 (Gavan Duffy CJ and Dixon J).
[14] Commissioner of the Australian Federal Police v Kanjo (2019) 1 QR 568 at [52] (Philippides JA).
Justice McMurdo (with whom Gotterson JA also agreed) also relied on Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia[15] as well as Leon Fink Holdings Ltd v Australian Film Commission[16] to conclude that the power to vary a restraining order (conferred by a provision equivalent to s 40) was not exercisable when the court was being asked to exclude a specified interest in property from a restraining order. That power could only be exercisable under the statutory provision equivalent to s 27.[17]
[15] (1932) 47 CLR 1.
[16] (1979) 141 CLR 672.
[17] Commissioner of the Australian Federal Police v Kanjo (2019) 1 QR 568 at [76]-[77] (McMurdo JA with Gotterson JA agreeing).

The same reasoning applies to Company 1’s attempt to utilise the ancillary orders power in s 40. Company 1 seeks the payment of expenses comprising arrears of mortgage payments from the seized cash sums. Any application for an order to allow expenses to be paid out of restrained property is properly to be made pursuant to s 27 which sets out the Court’s powers and contains the conditions and limitations upon the making of such an order.
There were further obstacles which Company 1 could not overcome regarding s 40. For example, Mr B did not identify what “condition to which the restraining order [wa]s subject” should be varied by the proposed ancillary order.
There were other difficulties with Company 1’s position. The “other” persons who may have made any payments in relation to the Magill property were not identified. Company 1 did not set out any foundation upon which the Court could make an order in favour of such unknown persons or in advance of any application for forfeiture.
Another difficulty was Company 1’s inability to attach the asserted obligation upon the DPP to pay expenses associated with the Magill property to any obligation or power within the Act. Mr B’s resort to s 26 did not assist him for reasons to which I now turn.
Section 26
Mr B relied on s 26 in support of his contention that the DPP was obliged to pay expenses associated with restrained property. He submitted that payments required by the contractual obligations of a loan subject to a registered mortgage over property included in a restraining order have a direct effect of reducing the value of a person’s interest in the property should repayment not be met resulting in accrual of interest or default leading to repossession of the property. He made the same point in relation to ongoing maintenance, rates, fees and other outgoings which he contended would be said to have the effect of reducing the value of a person’s interest in the property because, if not paid, they would result in devaluation of the property or repossession of the property.
Section 26 provides that a court may refuse to make a restraining order if the Crown refuses or fails to give the Court an appropriate undertaking with respect to the payment of damages or costs, or both, for the making and operation of the order.
The undertaking referred to within s 26 “evokes by analogy the practice of courts of equity when granting interlocutory remedies such as those by way of injunction”.[18] The undertaking reflects the potential that a court order of such a nature may result in material damage to the party impacted by the order. It thus has a protective purpose. The power to impose a condition upon the party at whose instance the court proposes to act arises from the court’s discretion to grant the injunction which is sought.[19]
[18] Mansfield v DPP (WA) (2006) 226 CLR 486 at [3] (Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ).
[19] Mansfield v DPP (WA) (2006) 226 CLR 486 at [33] (Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ) quoting Russell v Farley (1881) 105 US 433 at 438.
Section 26 enables the Court addressing an application for a restraining order to exercise a discretion to refuse such an application absent provision of an undertaking in situations where s 24 requires the Court to make a restraining order when satisfied of the matters set out within that section.
The undertaking proffered by the DPP to obtain a restraining order constitutes the DPP’s undertaking to the Court to abide by any order the Court may make in the future as to payment of damages, or costs, or both, for the making of the restraining order. The undertaking given in accordance with s 26, and noted on the restraining order, will require the Crown to pay amounts on account of damages or costs if at a future time a court makes an order for payment of damages or costs, or both, associated with the making of the restraining order or its operation. The section does not envisage nor require the payment of any amounts in the interim including amounts in the nature of the expenses, the subject of this application.
Section 27
Company 1 alternatively sought orders pursuant to s 27(1)(d) to meet the arrears and ongoing obligations in relation to the debt to the Bank from the cash sums.
Mr B submitted that s 27 does not exclude an order for expenses to be met from tainted property as it only refers to property or a specified part of property covered by a restraining order. Mr B pointed out that the restraining order in relation to the sums of cash referred to the cash as “banked” and therefore it could not offer any sort of evidence other than comprising police allegations as to where and when the cash sums were located.
The DPP’s position was that the affidavit evidence was not sufficient to show that the amounts sought to be paid constituted reasonable living or business expenses of Company 1 because there was no evidence the Magill property was required for any ongoing business or trade by Company 1, it was not Company 1’s place of business nor its registered business address, it was not Mr B’s residential property address and there was no evidence about how Mr B acquired the Magill property or why that property needed to be maintained. The DPP also submitted that there was no evidence the debt, the subject of the loan from the Bank, was incurred in good faith and that must be viewed in light of the transfer of the Magill property to Company 1 in December 2020 and the fact it fell within the definition of “tainted property” in the Act.
There was no evidence about when, or the circumstances in which, Company 1 was de-registered or whether and when it was re-registered. The DPP contended that there was no evidence an application for reinstatement of Company 1 had been lodged or that Company 1 had been reinstated. Mr B submitted that Company 1 had been re-registered following receipt of the letter from the Bank. Mr B invited the DPP or the Court to conduct an ASIC search to verify the assertion. No evidence establishing this fact was filed and there was accordingly no evidence before me to establish re-registration.
Section 27 provides that a court that has made a restraining order may order that one or more of the following be met out of property, or a specified part of property, restrained by the order:
·the reasonable living expenses of the person whose property is restrained;
·the reasonable business expenses of the person whose property is restrained;
·a specified debt incurred in good faith by that person.
Section 27(2) provides that the Court may only make an order if satisfied of certain matters. Those matters include that:
·the person whose property is restrained is applying for the order;
·the DPP is notified, in writing, of the application and the grounds for it;
·the person has disclosed all of his or her or its interests in property and liabilities in a statement on oath in the proceedings and the court is satisfied that the person cannot meet the expenses out of property which is not restrained.
The DPP accepted that in Mansfield v Director of Public Prosecutions (WA)[20] the Court held it is open to a court to regard mortgage repayments required to be made as reasonable living expenses but contended that the Court did not define what comprises reasonable business expenses, nor a specified debt incurred in good faith.
[20] (2007) 33 WAR 227.
Mr B, on behalf of Company 1, swore an affidavit in which he deposed to Company 1’s “interests in property” including the Magill property insofar as it held it as trustee for the Company 1 Investments Trust and that liabilities “known at this time” are the “mortgage over” the Magill property with the Bank as mortgagee, as well as “all other obligations and disbursements as set out in the trust deed”. The affidavit was thus not definitive and the trust deed was not tendered.
Section 27 envisages an order to enable a person’s qualifying expenses to be met out of their restrained property. Section 27(1)(a) specifies the reasonable living expenses “of the person whose property is restrained” and subparagraphs (b) – (d) refer to the expenses or debt of “that person”. It follows that for the Court to order payment of the arrears of the loan in Company 1’s name from the cash sums, it would be necessary to prove that the cash sums were owned or possessed by Company 1. There was no evidence to support such a position. The restraining orders over the cash sums were made on the basis they were in the effective control of Mr B, who was able to deal with the cash sums as he wished. At the time the cash was seized, Mr B resided at the Magill property.
There was also no evidence to support the position that the arrears on the debt owed to the Bank constituted reasonable business expenses of Company 1 or a debt incurred in good faith by Company 1, in circumstances in which Company 1’s last available registered business address and office was a location in Seaton and there was no evidence about the nature of Company 1’s business, nor the purpose and circumstances in which the debt was entered into by Company 1. The fact that Company 1 was deregistered suggests such expenses were and are not reasonable business expenses. It follows that Company 1 has failed to establish that the arrears constitute reasonable business expenses of Company 1, or a specified debt incurred by Company 1 in good faith.
The DPP also submitted that the Court may only make an order upon the respondents satisfying the Court of the matters set out in ss 27(2)(a)-(e) and the respondents had failed to properly disclose all interests in property and liabilities in a filed statement on oath. The DPP submitted those requirements could not be met without Mr B filing a statement on oath given he is the sole director, shareholder and secretary of Company 1, has effective control of Company 1 or is the owner of it and that the Magill property is tainted property. On the DPP’s position, the statement on oath from Mr B was also required because the Court must be satisfied that neither the first, nor second, respondents can meet the expenses before exercising the discretion under s 27(2).
Mr B contended that he personally had no involvement in this application, which was brought only by Company 1 and, accordingly, any submission made by the DPP in relation to his personal position had no relevance to the application. In those circumstances Mr B contended it was not necessary for him, as first respondent, to swear an affidavit to satisfy the requirements of s 27(2)(c) of the Act.
Section 27 refers to “the person” whose property is restrained applying for an order and “the person” having disclosed all of his or her interests and liabilities in a filed statement on oath. The section thus connects applications for expenses to be met from restrained property with ownership of that property. It does not touch upon effective control of property. The affidavit sworn by Mr B was sworn in his capacity as director of Company 1 and he maintained the application was brought only by Company 1. It follows that Company 1 could only seek payment of expenses from Company 1 assets. It also follows that the affidavit required by s 27 was in respect of Company 1’s assets and liabilities.
The DPP opposed the application on the basis that the cash sums were held as exhibits for the criminal proceedings against Mr B. It would adversely impact the criminal proceedings and contradict the purposes of the Act for an exhibit in the form of cash to be utilised pursuant to s 27. In this case, the DPP relied on a statement in my ex tempore ruling to evidence the fact the cash sums were held as evidence for use in the criminal proceedings. However, the statement in the ex tempore ruling does not evidence those matters.[21] The foundation for the statement in the ruling was contained in affidavits sworn by police officers which evidenced the seizure of the cash sums pursuant to a general search warrant and the subsequent holding of the cash sums pursuant to the criminal investigation. Those affidavits were not filed in this action, nor tendered for the purpose of opposing this application. However, the issue does not require further consideration given my conclusions above. For the same reason, it is not necessary to address the submissions concerning tainted property. I observe that the reference in the order to the cash sums as “banked” appears to have been erroneous.
[21] Hollington v F Hewthorn & Co Ltd [1943] KB 587; This rule continues to operate in South Australia to a limited extent, see Australian Securities and Investments Commission v Macks (No 2) (2019) 133 SASR 251 at [151]-[175].
Regardless, Company 1 has not met the evidentiary threshold for me to be satisfied that an order for payments under s 27 ought to be made.
Conclusion and orders
Based on my reasons above I conclude:
1.that ss 26 and 40 cannot be used as sources of power to make an order to which s 27 is directed; and
2.the evidence adduced by Mr B is insufficient to satisfy me that the conditions required to make an order under s 27 have been met.
I therefore dismiss the application.

[2025] SASC 175

21 October 2025