Director of Public Prosecutions v Property (Tran & Tran) (Ruling)

[2025] VCC 1178

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

CONFISCATION LIST

Case No. CI-24-03250

IN THE MATTER of the Confiscation Act 1997

and  

IN THE MATTER of property a police officer suspects on reasonable grounds is tainted property in relation to a Schedule 2 offence  

and  

IN THE MATTER of an application by THE DIRECTOR OF PUBLIC PROSECUTIONS FOR VICTORIA for a Civil Forfeiture Order  

BETWEEN  

THE DIRECTOR OF PUBLIC PROSECUTIONS FOR VICTORIA	Applicant
and
BINH VAN TRAN	First Respondent
and
HAI TANH TRAN	Second Respondent

---

JUDGE:	HER HONOUR JUDGE HINCHEY
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2025
DATE OF RULING:	21 August 2025
CASE MAY BE CITED AS:	Director of Public Prosecutions v Property (Tran & Tran) (Ruling)
MEDIUM NEUTRAL CITATION:	[2025] VCC 1178

RULING
---

Subject:PROCEEDS OF CRIME

Catchwords:              Application for civil forfeiture order – application opposed – evidence by former solicitor regarding instructions given to her by client – evidence disputed by client – conclusions available on the sworn evidence given

Legislation Cited:      Confiscation Act 1997, s37, s36M, s36U, s36V, s36P(1); Drugs, Poisons and Controlled Substances Act 1981, s72A

Judgment:Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr I Roytberg	Solicitor for the Office of Public Prosecutions
For the Respondents	The First Respondent appeared in person There was no appearance for the Second Respondent	-

HER HONOUR:

Introduction

1This is an application by the Director of Public Prosecutions for a Civil Forfeiture Order (“CFO”) pursuant to s37 of the Confiscation Act 1997 (“the Act”).

2The relevant history of the matter is as follows:

(a) on 16 July 2024, his Honour Judge Fraatz made a Civil Forfeiture Restraining Order (“CFRO”) pursuant to s36M of the Act, in respect of the real property situated at 3 Briar Lane, Portland in the State of Victoria, more particularly described in Certificate of Title Volume 09055 Folio 540 (“the property”);[1]

[1]Affidavit of Mr Illia Roytberg sworn 14 July 2025 (“Affidavit of Mr Roytberg”), paragraph [4]

(b)   in the CFRO, his Honour declared that the property was “restrained property” for the purpose of satisfying any CFO that may be made under Division 2 of Part 4 of the Act;[2]

[2]Affidavit of Mr Roytberg, paragraph [5]

(c)   the basis for making the CFRO was that the Court was satisfied that there were reasonable grounds to support a police member’s suspicion that the property was “tainted property” in relation to the Schedule 2 offence of cultivation of a narcotic plant, namely cannabis, in a quantity not less than a commercial quantity contrary to s72A of the Drugs, Poisons and Controlled Substances Act 1981;[3]

[3]Affidavit of Mr Roytberg, paragraph [6]

(d) on 12 August 2022, Mr Binh Tran (“Binh Tran”) returned a completed Notice Requiring Declaration of Property Interests as required by s36P(1) of the Act. That declaration noted the interests of Mr Hai Tran (“Hai Tran”) and the Westpac Banking Corporation in the property;[4]

[4]Affidavit of Mr Roytberg, paragraph [7]

(e) also on 12 August 2022, Hai Tran returned a completed Notice Requiring Declaration of Property Interests as required by s36P(1) of the Act. That declaration noted the interests of Binh Tran and the Westpac Banking Corporation in the property;[5]

[5]Affidavit of Mr Roytberg, paragraph [8]

(f) on 19 August 2024, the Director applied, pursuant to s37(1) of the Act, for a CFO in respect of the property;[6]

[6]Affidavit of Mr Roytberg, paragraph [9]

(g) on 20 August 2024, in accordance with s37(2) of the Act, a copy of the sealed application for a CFO was sent to both Binh Tran and Hai Tran by their legal representative, Ms Jennifer Grey (“Ms Grey”) of Grey Legal Pty Ltd (“Grey Legal”);[7]

[7]Affidavit of Mr Roytberg, paragraph [10]

(h) on 13 August 2024, both Binh Tran and Hai Tran filed applications under s36U of the Act, for exclusion orders under s36V of the Act (“the applications for exclusion orders”), in respect of the property;[8]

[8]Affidavit of Mr Roytberg, paragraph [12]

(i)    on 22 August 2024, the Director’s application for a CFO was stayed until the respondents’ applications for exclusion orders, were determined or withdrawn;[9]

(j)    on 2 April 2025, the applications for exclusion orders were withdrawn by order of the County Court of Victoria (“the Court”), with the consent of all parties;[10]

(k) at approximately 11.50am on 9 July 2025, Mr Roytberg made enquiries with the Registry of the Court, to ascertain whether the Court had received any further applications for an exclusion order pursuant to s36U of the Act, in respect of the property;[11]

(l) at approximately 9.46am on 10 July 2025, Mr Roytberg was informed by the Court that no further applications for exclusion orders pursuant to s36U of the Act, had been filed in respect of the property;[12]

(m)     Mr Roytberg deposed to the fact that in addition to making enquiries with registry staff at the Court, he also conducted a review of the file held by the Office of Public Prosecutions for Victoria in relation to this matter.  His search of that file did not reveal any other applications for exclusion orders that had been filed in respect of the property;[13]

(n)   on 12 June 2025 at 11.15am, Detective Senior Constable Rebekah Gunther effected personal service of the application for a CFO, together with the supporting documentation upon each of Binh Tran and Hai Tran;[14]

(o)   at a hearing held on 15 July 2025, Mr Roytberg appeared on behalf of the Director to make the application for a CFO.  That application was supported by documentation which had been filed with the Court and served upon both Binh Tran and Hai Tran.  Binh Tran attended at the hearing of the application to represent himself.  Hai Tran did not attend the hearing;

(p)   in response to the application, Binh Tran submitted that he had not instructed his previous solicitor, Ms Grey, to withdraw his application for exclusion orders and had not consented to the orders being made on 2 April 2025;

(q)   as a result of this communication, the Court determined that Ms Grey should be given an opportunity to file an affidavit outlining the circumstances in which the Consent Orders came to be made on 2 April 2025.  Ms Grey was also requested to appear as a friend of the Court on the date of the next hearing.  The matter was adjourned to 5 August 2025;

(r)   following the hearing on 15 July 2025, Ms Grey requested, and was provided with, a copy of the recording of that hearing, so that she could better understand the matters that had been raised by Binh Tran.  A copy of that recording was supplied to Ms Grey by the Court.

[9]Affidavit of Mr Roytberg, paragraph [11]

[10]Affidavit of Mr Roytberg, paragraph [13]

[11]Affidavit of Mr Roytberg, paragraph [14]

[12]Affidavit of Mr Roytberg, paragraph [15]

[13]Affidavit of Mr Roytberg, paragraph [16]

[14]See two separate Affidavits of Service of Detective Senior Constable Rebekah Gunther, each sworn on 12 June 2025.

The affidavit of Ms Grey

3On 29 July 2025, Ms Grey filed an affidavit sworn on the same date.  In that affidavit, Ms Grey deposed to the following matters:

(a)   on 27 June 2024, she had an initial conference with Binh Tran, who provided her with instructions to act on his behalf in relation to this confiscation matter.  He also requested that she act on behalf of his son, Hai Tran.  During the conference, she obtained the contact details of Hai Tran, including his address, phone number and email.  On 1 July 2024, she contacted Hai Tran by telephone to confirm his instructions for Ms Grey to act on his behalf in the proceeding.  Hai Tran instructed Ms Grey to liaise with his father and to copy him into email correspondence;[15]

[15]Affidavit of Ms Grey sworn on 29 July 2025 (“Affidavit of Ms Grey”), paragraph [6]

(b)   on 26 June 2024, Hai Tran provided Ms Grey with a signed authority to act;[16]

[16]Affidavit of Ms Grey, paragraph [7]

(c)   on 28 June 2024, a Costs Disclosure was sent to Binh Tran, which outlined the estimate of costs for the matter, including the estimated costs for a five-day trial.  Binh Tran signed and returned that Costs Disclosure and Costs Agreement on 16 July 2025;[17]

[17]Affidavit of Ms Grey, paragraph [8]. While the date referred to in the affidavit states that the authority was signed on 16 July 2025, a reading of the document, a copy of which was contained in the bundle exhibit JG-1 to Ms Grey’s affidavit, discloses the date of the signature to be “16-7-24”

(d)   on 28 January 2025, Ms Lia Hunter (“Ms Hunter”), a solicitor employed by Grey Legal, emailed Binh Tran requesting further documentation.  She also requested that the sum of $20,000 to be deposited into the Grey Legal law practice trust account (“the trust account”).  This sum was in respect of costs and disbursements to complete “stage one” of the proceeding, as that term was defined in the Costs Disclosure signed on 16 July 2024;[18]

[18]Affidavit of Ms Grey, paragraph [9]

(e)   on 4 February 2025 and 9 February 2025, both Ms Grey and Ms Hunter emailed Binh Tran requesting the deposit of funds into the trust account, together with the provision of further documentation;[19]

[19]Affidavit of Ms Grey, paragraph [11]

(f)    on 19 February 2025 at 9.10am, Ms Grey received a telephone call from Binh Tran, during which he instructed her that he had decided not to proceed with his exclusion application as it was not commercially viable to do so.  He further instructed Ms Grey that he wanted to withdraw his exclusion application.  A file note of this conversation was annexed to Ms Grey’s affidavit at page 20 of the bundle exhibit labelled JG-1 (“the bundle exhibit”);[20]

[20]Affidavit of Ms Grey, paragraph [12] and page 20 of the bundle exhibit

(g)   on 12 March 2025 at 3.42pm, Ms Hunter sent to both Binh Tran and Hai Tran, an email confirming that Binh Tran had recently instructed Grey Legal that he no longer wanted to proceed with his exclusion application, as the cost of continuing did not seem worthwhile based on the funds that he may be likely to recoup if the matter was able to be resolved by way of a negotiated settlement with the Director.  In that correspondence, Ms Hunter requested confirmation by return email of Binh Tran’s instructions and also requested that Hai Tran provide his instructions as to this matter;[21]

[21]Affidavit of Ms Grey, paragraph [13]

(h)   on 17 March 2025 at 3.16pm, Hai Tran responded to Ms Hunter’s email dated 12 March 2025, instructing her that he “will no longer proceed with the matter further”;[22]

[22]Affidavit of Ms Grey, paragraph [14] and page 51 of the bundle exhibit

(i)    on 18 March 2025 at 10.17am, Ms Hunter sent an email to both Binh Tran and Hai Tran, enclosing the draft Form of Order which would effect the withdrawal of the applications for exclusion orders.  The email also contained an explanation of the effect of those orders and requested confirmation of Binh Tran and Hai Tran’s instructions in writing.  In particular, the email set out the following matters:

“Dear Binh and Hai,

Please see attached proposed draft orders finalising your matter.

If these proposed orders are filed with the Court as drafted:

1.Withdrawal of Exclusion Applications:

Your exclusion applications will be withdrawn. This means that you will no longer be pursuing an order to exclude the property from forfeiture.

2.Property Forfeiture:

The restrained property will be forfeited.

3.Setting Aside the Restraining Order:

The existing civil forfeiture restraining order issued on 16 July 2024 will be set aside.

4.Proceeding to Finalisation:

The directions hearing scheduled for 8 April 2025 will be vacated, and this will effectively conclude the matter concerning the exclusion applications.

5.Costs:

Each party will bear its own legal costs; there will be no order for costs against or in favour of you.

Request for Your Confirmation

Before proceeding, we need your confirmation of the following:

1.That you understand the implications of filing the proposed orders, including the withdrawal of your exclusion applications and the forfeiture of the restrained property to the State.

2.That you wish to proceed with these orders being filed.

Please review this carefully and confirm whether you are satisfied to proceed on this basis. I cannot file these orders until you have both provided me with written instructions to do so.”[23]

[23]Affidavit of Ms Grey, paragraph [15] and pages 22 to 24 of the bundle exhibit

[emphasis in original.]

(j)    on 18 March 2025 at 12.54pm, Binh Tran emailed Ms Hunter in response to the email set out above, inter alia, confirming his instructions that he wished to “just let it go, and stop the proceedings, as there are (sic) nothing left at the end of the negotiation”;[24]

[24]Affidavit of Ms Grey, paragraph [16] and pages 25-26 of the bundle exhibit

(k)   on 18 March 2025 at 3.46pm, Ms Hunter sent a further email to Binh Tran addressing concerns he had raised in his email relating to costs and confirming the effect of withdrawing his exclusion application;[25]

[25]Affidavit of Ms Grey, paragraph [17] and page 27 of the bundle exhibit

(l)    on 24 March 2025 at 8.27am, Ms Hunter sent an email to Binh Tran requesting a response to her email dated 18 March 2025;[26]

(m)     on 26 March 2025 at 4.30pm, Ms Hunter sent a further email to Binh Tran requesting a response to her earlier emails and noting that if no response was received, Grey Legal would file a notice of solicitor ceasing to act;[27]

(n)   on 31 March 2025 at 9.20am, Ms Grey spoke by telephone to Binh Tran.  A file note of that conversation records that he confirmed his instructions to withdraw his application for exclusion orders.  In her affidavit, Mr Grey deposed to the fact that during this conversation, she advised Binh Tran that the restrained property would be forfeited to the State if he withdrew his application for exclusion orders, meaning the property would be sold and the sale proceeds would go to the State.  The file note confirms her version of this conversation.  She also deposed to the fact she believed that during this conversation, Binh Tran understood her advice and the consequences of withdrawing his application for exclusion orders, because he expressed to her that he did not see any commercial value in continuing the proceeding.  The file note further records that during the telephone conversation, Ms Grey requested that Binh Tran confirm his instructions to her, in writing.  Ms Grey noted and the file note records that Binh Tran advised her that he had already confirmed his instructions in writing to Ms Hunter.  Nevertheless, Ms Grey deposed to the fact that she requested that Binh Tran confirm those instructions to her in writing once again.  The file note records this matter;[28]

(o)   on 31 March 2025 at 9.23am, following her conversation with Binh Tran, Ms Grey sent him a further email, confirming the instructions she had received from him via telephone and requesting once more that he confirm his instructions in writing;[29]

(p)   on 1 April 2025 at 10.34am, Binh Tran sent an email to Ms Grey which forwarded the email that he had previously sent to Ms Hunter on 18 March 2025.  As set out above, that email contained, inter alia, his written instructions to withdraw his application for exclusion orders;[30]

(q)   on 1 April 2025 at 10.39am, Ms Grey sent Binh Tran an email acknowledging his instructions as per their telephone conversation and his later email.  In the email, she again explained the consequences of withdrawing the application for exclusion orders;[31]

(r)   on 3 April 2025, Ms Hunter sent both Binh Tran and Hai Tran a copy of the sealed orders that had been made by the Court by consent on 2 April 2025, withdrawing their respective applications for exclusion orders;[32]

(s)   on 15 April 2025, Ms Hunter sent both Binh Tran and Hai Tran an email, seeking their instructions in relation to their position concerning the Director’s application for a CFO;[33]

(t)    having received no response to the email dated 15 May 2025, Ms Hunter, on Ms Grey’s instructions, filed a “Notice of Solicitor Ceasing to Act” with the Court.  On 15 May 2025, Ms Hunter sent to Binh Tran and Hai Tran an email attaching a copy of the Director’s application for a CFO dated 19 August 2024, together with a copy of the Notice of Solicitor Ceasing to Act dated 15 May 2025;[34]

(u)   on 27 May 2025, Binh Tran attended at the office of Grey Legal to collect his documents.  Ms Hunter provided Binh Tran with his documents as requested.  He had no conversation with Ms Hunter about any matter on that date. 

[26]Affidavit of Ms Grey, paragraph [18] and page 28 of the bundle exhibit

[27]Affidavit of Ms Grey, paragraph [19] and page 29 of the bundle exhibit

[28]Affidavit of Ms Grey, paragraph [20] and page 30 of the bundle exhibit

[29]Affidavit of Ms Grey, paragraph [21] and page 31 of the bundle exhibit

[30]Affidavit of Ms Grey, paragraph [22] and page 32 of the bundle exhibit

[31]Affidavit of Ms Grey, paragraphs [26]-[27] and page 37-42 of the bundle exhibit

[32]Affidavit of Ms Grey, paragraph [34] and pages 34-35 of the bundle exhibit

[33]Affidavit of Ms Grey, paragraph [25] and page 36 of the bundle exhibit

[34]Affidavit of Ms Grey, paragraph [20] and page 30 of the bundle exhibit

The hearing on 5 August 2025

4At the hearing on 5 August 2025, Mr Roytberg appeared to represent the Director in his application for a CFO.  Binh Tran appeared to represent himself.  Hai Tran did not attend the hearing.  Ms Grey appeared as a friend of the Court.

5The Court confirmed with Binh Tran that he had received a copy of Ms Grey’s affidavit sworn on 29 July 2025, together with the bundle exhibit attached thereto.  Binh Tran confirmed that he had received that document.  The Court enquired of Binh Tran whether or not he had read Ms Grey’s affidavit.  Initially, Binh Tran stated that he had “looked at [the affidavit] briefly”.[35]  However, when pressed, he agreed that he had in fact read the affidavit.[36]  In the end, the substance of the submission made by Binh Tran in relation to the content of Ms Grey’s affidavit, was that he had never given instructions to withdraw his application for exclusion orders, rather he had instructed Ms Grey that he did not wish for her to act for him any longer, due to the high level of fees that her office requested that he pay into her trust account.

[35]        Transcript of hearing on 5 August 2025 (“T”) 2-3

[36]        T4

6As a result of the factual dispute that arose in relation to the matters contained in Ms Grey’s affidavit, the Court enquired of Ms Grey whether she would be willing to enter the witness box, take an affirmation, give evidence in relation to the matters contained within her affidavit and accede to cross-examination if necessary.  Ms Grey said that she was willing to do so.

7As a result, at the hearing on 5 August 2025, Ms Grey was affirmed, gave evidence and submitted herself to cross-examination by Binh Tran.  During her evidence, Ms Grey confirmed each of the matters that were contained in her affidavit.  She referred the Court to key documents contained within the bundle exhibit.  She confirmed on numerous occasions that she was not mistaken about the nature of the instructions she had received from Binh Tran and was firm in her evidence to the Court that on a number of occasions, she had received specific instructions from Binh Tran to withdraw the applications for exclusion orders.  She placed particular reliance on the content of the email from Binh Tran dated 18 March 2025.  She gave evidence that when she asked for Binh Tran to confirm his instructions to her to withdraw his application for exclusion orders on 31 March 2025, in response to her request that these instructions be put in writing, Binh Tran forwarded this email to her office a second time. 

8Binh Tran cross-examined Ms Grey at the conclusion of her evidence-in-chief.  The substance of his questioning was to assert to her that she had misunderstood what he had instructed her to do.  In particular, Binh Tran suggested to Ms Grey that she had been mistaken in her understanding of the instructions she had been given by him, in relation to the application for exclusion orders.  Ms Grey denied this was the case and confirmed once again the substance of the instructions that had been given by Binh Tran to Ms Hunter and herself, orally on 19 February 2025, by email on 18 March 2025, orally on 31 March 2025 and by email on 1 April 2025.

Submissions

9Following the receipt of viva voce evidence given by Ms Grey, Mr Roytberg, on behalf of the Director, pressed his application for a CFO.  He submitted that his application was supported by the affidavit that had been filed in support of the application, together with the affidavits of service that had been filed evidencing delivery of the relevant materials to Binh Tran and Hai Tran.  He also placed reliance on the evidence given by Ms Grey, both in her affidavit sworn on 29 July 2025 and her oral evidence given to the Court.  On the basis of all of these materials, Mr Roytberg submitted the Court should be satisfied that, in the circumstances, it was appropriate to make a CFO.

10In his submission, Binh Tran submitted that Ms Grey had been mistaken in her belief she had been instructed to withdraw the application for exclusion orders on his behalf.  He asked, rhetorically, why, if he had agreed to withdraw his application for exclusion orders, he would have continued to perform work on the property?  He could not offer any explanation for the wording of the last paragraph of the email dated 18 March 2025 sent from him to Ms Hunter, where he stated that because of the costs implications, he wanted to “just let it go, and stop the proceedings …”.  It is notable that this email was sent in response to the detailed email from Ms Hunter to Binh Tran and Hai Tran dated 18 March 2025, which clearly set out the effect which the proposed orders would have, namely:

(a)     to withdraw the exclusion applications;  and

(b)     to forfeit the restrained property to the State.

11In response to questioning from the Court, Binh Tran confirmed that his email address is the email address which appears in the email sent to him by Ms Hunter on 18 March 2025 and the email sent by him to Ms Hunter on the same date.  He confirmed that he continues to use this email address at the present time and that he receives emails and any attached documents, on that address.[37]

[37]        TT18-19

12Despite the fact that the words in the email dated 18 March 2025 appear clear on their face, and were sent in response to the detailed email sent by Ms Hunter on the same date, Binh Tran continued to submit to the Court that what he meant by those words was that he wished for Grey Legal to cease acting for him and that he intended to pursue his application for exclusion orders, either by representing himself or by engaging another solicitor.[38]

[38]        TT14-17

13There were no other matters of relevance that were raised by Binh Tran in the hearing on 5 August 2025.

Analysis of the evidence

14Having considered all of the materials before the Court, including the detailed affidavit of Ms Grey and the content of her oral evidence, together with the submissions made and materials filed by each party, I find that Binh Tran gave instructions to Grey Legal to withdraw his application for exclusion orders on the following occasions: orally on 19 February 2025, by email on 18 March 2025, orally on 31 March 2025 and by email on 1 April 2025.

15This conclusion is supported by the content of the email of Hai Tran dated 17 March 2025, where, in response to the email from Ms Hunter dated 12 March 2025, requesting instructions in relation to the Binh Tran’s oral communication on 19 February 2025 that he did not wish to proceed with the application for exclusion orders, Hai Tran replied, “I will no longer proceed with the matter further”. 

16Furthermore, I note that, in response to an email from Mr Roytberg to both Binh Tran and Hai Tran, in which they were each notified of the Director’s application for a CFO, and asked what their attitude was in relation to the application, Hai Tran replied to Mr Roytberg, “I will not be attending tomorrow, and I believe attendance was not necessary.  Is that correct?”[39]

[39]Affidavit of Ms Grey, paragraph [29] and page 43 of the bundle exhibit labelled JG-1

17Further, having considered the relevant evidence, I find that the explanation given by Binh Tran for the words, “[I want to] just let it go, and stop the proceedings …”, namely that those words were intended to convey to Ms Grey that he did not wish for her to act for him any longer, are incompatible with the words used by him in that email, which clearly refer to stopping the “proceedings”.

18In addition to this, the evidence indicates, and I find, that at no stage following receipt of the sealed order which clearly set out the fact that the applicants’ applications for exclusion orders had been withdrawn, an order that was expressed to be “By Consent”, did Binh Tran question either Ms Grey or Ms Hunter about any aspect of this matter, including, importantly, why the order had been made.  That is despite the fact that on 27 May 2025, Binh Tran attended at the office of Grey Legal to collect his papers, but made no attempt to have any communication with Ms Grey, Ms Hunter or any other person at Grey Legal in relation to this matter.  This attendance was on a date more than six weeks after Binh Tran received notification that the Court had made orders withdrawing the applications for exclusion orders.  No suggestion was made by Binh Tran that he had not received a copy of this order.  I find that the order was sent to him on the email address that he agrees is his current email, on which he receives correspondence.

19Lastly, by reason of my observations of Binh Tran in Court, I find that while his English is not perfect, in his interactions with the Court, and each of the solicitors in this matter, both orally and in writing, he did not have any difficulty understanding the words that were being communicated to him, nor their effect.  In particular, I find and the transcript records, that during the hearing on 5 August 2025, Binh Tran actively interacted with the Court in relation to all of the matters which were raised with him during the hearing.[40]

[40]        TT13-22

Conclusion and Orders

20On the basis of the foregoing, I am satisfied, and find, that both Binh Tran and Hai Tran instructed Grey Legal to withdraw their applications for exclusion orders, in the circumstances to which Ms Grey deposed in her affidavit. 

21Given this, and taking into account the matters set out in the affidavit supporting this application and the submissions made by Mr Roytberg, I am satisfied that it is appropriate to grant the Director’s application and make a CFO.

22I will hear the parties as to the form of the Order that should be made.

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