Guo v Commissioner of Australian Federal Police
[2017] VSC 269
•15 June 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
CONFISCATION AND PROCEEDS OF CRIME LIST
S CI 2013 02407
| GUO ZHIMIN | Applicant |
| v | |
| COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE | Respondent |
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JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers (submissions filed 28 March 2017 and |
DATE OF JUDGMENT: | 15 June 2017 |
CASE MAY BE CITED AS: | Guo v Commissioner of Australian Federal Police |
MEDIUM NEUTRAL CITATION: | [2017] VSC 269 |
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PROCEEDS OF CRIME — Application for variation of examination order in relation to restrained property — Whether current order invalid — Identification of subject matter — Section 180 of Proceeds of Crime Act 2002 (Cth) — Definition of ‘affairs’ pursuant to section 338 of Proceeds of Crime Act 2002 (Cth) — Scope and purpose of examination orders — Discretionary considerations.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A Moses SC with Ms R Burton | Criminal Assets Litigation, Australian Federal Police |
| For the Respondent | Mr T Mitchell | Madison Branson Lawyers |
HIS HONOUR:
Introduction
On 5 December 2016, I ordered that Mr Guo Zhimin (‘Mr Guo’) be the subject of an examination pursuant to s 180 of the Proceeds of Crime Act 2002 (Cth) (‘the Act’).
The order was broad and to the following effect:
Pursuant to section 180 of the Proceeds of Crime Act 2002, Guo Zhimin be examined. [1]
[1]Order of J Forrest J made on 5 December 2016.
Mr Guo now seeks clarification on the scope of that order and a determination as to whether the terms of the order exceeds the Court’s power under s 180 of the Act. He argues that the order made is invalid as it does not clearly identify the relevant subject matter. Mr Guo’s submissions also seek that the Court intervene in the manner in which the examination will be conducted.
On 6 March 2017 I required that Mr Guo and the Commissioner of the Australian Federal Police (‘the Commissioner’), provide written submissions in regard to the definition of ‘affairs’ and the scope of s 180 of the Act.[2]
[2]Order of J Forrest J made on 6 March 2017.
The short point to be determined is whether the order made for Mr Guo’s examination is too wide and should be amended to identify the parameters of the examination and, particularly, the relevant ‘affairs’ which can be investigated by the Australian Federal Police (‘AFP’). Mr Guo’s submissions as to the examiner’s role and the production of documents go well beyond the scope of this determination and amount to an unreasonable interference with the examiner’s statutory function. No order will be made in relation to this question.
I now explain my conclusions.
Background
Restraining orders were made on 14 May 2013, 31 May 2013 and 28 June 2013 in relation to the following property alleged to be owned by Mr Heng Jie Zhang (‘Zhang’) and Ms Ting Shen (‘Shen’):
(a) a property situated at 10 Monomeath Avenue, Canterbury, Victoria and described in Victorian Certificate of Title Volume 09089 Folio 020 (‘Canterbury property’);
(b) a 2009 Mercedes Benz ML350 motor vehicle with registration JIE666 (‘the Mercedes’);
(c) a property situated at 11 Teck Street, Ashwood, Victoria and described in Victorian Certificate of Title Volume 11299 Folio 120 (‘Ashwood property’).
Mr Zhang and Ms Shen are husband and wife, and to date have not been charged with, or convicted of, any criminal offence. An AFP officer, Detective Senior Constable Amanda Glover, suspects that the property has been obtained as a result of the proceeds of indictable offences.[3]
[3]As is required under ss 400.9(1) and 135.1 of the Criminal Code Act 1995 (Cth).
On 12 September 2016 the Commissioner filed an application for examination orders in relation to the following persons:
· Mr Zhang;
· Ms Shen;
· Mr Zhang’s father, Mr Pei Liang Zhang (‘Pei’);
· Changrong Zhu (‘Zhu’);
· Clive Richard Bayliss; and
· Mr Guo
The application in respect of Mr Guo sought that he be examined:
about the Property including the circumstances surrounding the acquisition of the Property, the nature (if any), of Heng Jie Zhang’s and Ying Shen’s interest in the Property and the origin of the monies used to purchase the Property.[4]
[4]Application for an Examination Order pursuant to s 180 of the Proceeds of Crime Act 2002 (Cth) filed by the Commissioner of the Australian Federal Police on 12 September 2016.
In support of this application, an affidavit was sworn by Ms Glover[5] (an authorised officer of an enforcement agency within the meaning s 338 of the Act) who said as follows as to the relationship and involvement of the examinees (and in particular Mr Zhang and Ms Shen) in acquiring the property:
[5]Sworn 19 September 2016.
I believe that the information that the Respondents could give in examination proceedings and the issues that they can address in the course of such examinations are relevant to the determination of Zhang and Shen’s applications for exclusion from the restraining orders. Furthermore, the information that the Respondents could provide in relation to Zhang’s business, financial and banking affairs, which affairs directly relate to Zhang’s acquisition of the Restrained Property, is of a kind which is within the knowledge of the Respondents and not available from other sources.
Zhang is the sole registered proprietor of the Restrained Property and is the person who has the most detailed knowledge concerning its acquisition and the source of the funds employed to purchase the Restrained Property.
Shen, as Zhang’s wife and as an applicant for exclusion asserting her own interest in the Restrained Property, is a significant and relevant potential examinee.
Pei Liang Zhang is Zhang’s father and evidently has knowledge of his son’s relevant financial affairs. In addition, he is suspected by the AFP to be a potential source of the funds used to acquire the Restrained Property and he would appear, upon the basis of the evidence filed to date, to have had a direct involvement in some of the transactions connected to the purchase of the Restrained Assets.
Changrong Zhu deposes in his affidavit that during July 2012 he caused cash and bank cheque deposits in large amounts to have been made into the CBA account of Hengjie Investments Pty Ltd, company controlled by Zhang. These deposits comprised partial payment of the deposit for the purchase of the Canterbury Property and partial payment of the balance of purchase price.
Guo Zhimin has deposed in his affidavit filed in support of Zhang’s exclusion application that he provided a loan for $2,000,000 AUD that was applied towards the purchase price of the Canterbury Property and that the $2,000,000 AUD came from gambling winning at Crown Casino in Melbourne.
Clive Richards Bayliss deposes in his affidavit to his working in the Australian wine export business and to specific transactions undertaken with Zhang and with corporate entities apparently under Zhang’s control. His evidence supports Zhang’s explanations for the source of some of the purchase monies for the Canterbury Property.[6]
[6]Affidavit of Amanda Glover sworn 19 September 2016, [14]-[21]. The reference to the respondents is to each of the persons identified in [8].
I heard the applications for examination of Mr Zhang, Ms Shen and Mr Pei on 7 November 2016 and ordered that each:
be examined about the Restrained Property including the circumstances surrounding the acquisition of the Property, the nature (if any) of Heng Jie Zhang’s and Ying Shen’s interest in the Restrained Property and the origin of the monies used to purchase the Restrained Property.[7]
[7]Order of J Forrest J made on 7 November 2016.
The application for examination of Mr Guo did not proceed on that date as he had been served with the notice of the application on 5 November 2016. It was adjourned to 5 December 2016 and I made orders that Mr Guo inform the Commissioner on or before 20 November 2016 as to whether or not he intended to oppose the application.[8]
[8]Orders of J Forrest J made on 7 November 2016.
The Commissioner subsequently sent Mr Guo letters on 10 November 2016 and 30 November 2016 concerning the hearing of the application.
Mr Guo did not respond to the notice of the application or to any of the Commissioner’s correspondence.
Application for examination order, made by the Commissioner on 5 December 2016
On 5 December 2016, at the return of the application, counsel appeared for the Commissioner. There was no appearance for Mr Guo.
The application was supported by the affidavit of Ms Glover (set out above), who deposed to the bases for her suspicion that the property was acquired with the proceeds of one or more indictable Commonwealth offences under ss 400.9(1) and 135.1 of the Criminal Code Act 1995 (Cth).[9]
[9]ss 400.9(1) and 135.1 address dealing with proceeds of crime worth over $100,000 or more and dishonesty causing a loss to the Commonwealth respectively.
Counsel for the Commissioner said at the hearing that orders were being sought in respect of Mr Guo in the same terms as the other examinees.[10] Draft orders were handed up to the Court.
[10]Transcript of hearing on 5 December 2016, T4.
Following the hearing, the Commissioner submitted to the Court by email a draft form of order (that was ultimately made), providing that:
Pursuant to section 180 of the Proceeds of Crime Act 2002 (Cth), Guo Zhimin be examined.
Those terms of the order are now under challenge.
Procedural background post 5 December 2016
By an examination notice (‘the notice’) dated 16 January 2017, Mr Guo was directed to be examined before Senior Member Poljak of the Commonwealth Administrative Appeals Tribunal on 6 February 2017.[11]
[11]Notice to attend examination, dated 16 January 2017.
On 3 February 2017, a directions hearing was conducted via telephone before the Senior Member in order to seek directions on whether Mr Guo could be examined about his own affairs insofar as they did not relate to the affairs of Mr Zhang and Ms Shen.[12] Mr Guo was, by then, represented by Madison Branson lawyers.
[12]Guo also sought questions of law to be referred to the Supreme Court pursuant to s 192 of the Act. Senior Member Poljak has advised that the referral issue will be dealt with at Guo’s examination.
That examination was adjourned pending the current determination.
Mr Guo’s lawyers subsequently filed an appearance on his behalf with an affidavit or his solicitor, Mr Simon Tsapepas[13]; and then appeared at a hearing on 6 March 2017. The parties made oral submissions concerning any further orders relating to the s 180 examination of Mr Guo.
[13]Affidavit of Simon Tsapepas, 5 March 2017.
At that hearing I made the following orders:
1)The trial date of 26 April 2017 and the associated directions are vacated.
2)Guo Zhimin file submissions in regard to the definition of "affairs" and the scope of section 180 of the Proceeds of Crime Act 2002 (Cth), and file a draft form of order sought by 22 March 2017.
3)The Commissioner file submissions in response in regard to the definition of "affairs" and the scope of section 180 of the Proceeds of Crime Act 2002 (Cth), file a draft form of order sought by 18 April 2017.
4)The matter is listed for further directions on 19 June 2017.
5)Costs are reserved.
6)There be liberty to apply.
Applicable Law: examination orders
Sections 180, 180A and 180B of the Act relevantly provide:
180 Examination orders relating to restraining orders
(1)If a restraining order is in force, the court that made the restraining order, or any other court that could have made the restraining order, may make an order (an examination order) for the examination of any person, including:
(a)a person whose property is, or a person who has or claims an interest in property that is, the subject of the restraining order[14]; or
[14]See Cini v The Commissioner of the Australian Federal Police (2016) 312 FLR 432 dealing with s 94(1) in terms of ‘interest’ of exclusion orders.
(b)a person who is a suspect in relation to the restraining order; or
(c)the spouse or de facto partner of a person referred to in paragraph (a) or (b); about the affairs of a person referred to in paragraph (a), (b) or (c).
(2)The examination order ceases to have effect if the restraining order to which it relates ceases to have effect.
180AExamination orders relating to applications for exclusion from forfeiture
(1)If an application for an order under section 73 or 94 for an interest in property to be excluded from forfeiture is made, the court to which the application is made may make an order (an examination order) for the examination of any person including:
(a) a person who has or claims an interest in the property; or
(b)the spouse or de facto partner of a person referred to in paragraph (a); about the affairs of a person referred to in paragraph (a) or (b).
(2) The examination order ceases to have effect when:
(a) the application is withdrawn; or
(b) the court makes a decision on the application.
180B Examination orders relating to applications for compensation
(1)If an application for an order under section 77 or 94A (which deal with compensation) is made in relation to an *interest in property that has been or may be forfeited, the court to which the application is made may make an order (an examination order) for the examination of any person including:
(a) a person who has or claims an interest in the property; or
(b)the spouse or defacto partner of a person referred to in paragraph(a);
about the affairs of a person referred to in paragraph(a) or (b).
(2) The examination order ceases to have effect when:
(a) the application is withdrawn; or
(b) the court makes a decision on the application.
Each of sections 180, 180A and 180B of the Act includes the expression ‘about the affairs of a person’. The word ‘affairs’ is defined in s 338 of the Act and provides a non-exhaustive list for establishing the affairs of a person, including as follows:
“affairs” of a person includes, but is not limited to:
(a)the nature and location of property of the person or property in which the person has an interest; and
(b)any activities of the person that are, or may be, relevant to whether or not the person has engaged in unlawful activity of a kind relevant to the making of an order under this Act.
The Explanatory Memorandum of the Proceeds of Crime Bill in 2002 (Cth) describes the intention of parliament in relation to Part 3-1 of the Act as follows:
PART 3-1 EXAMINATIONS
DIVISION 1 - EXAMINATION ORDERS
Clause 180 Examination orders relating to restraining orders
This clause provides that where a restraining order is in force, a court may make an order for the examination of any person. That includes a person who owns the property, or who claims an interest in property that is the subject of the restraining order, and a person named in a restraining order as a suspect; further, it includes the spouses of those persons. Those persons and their spouses can be examined about the “affairs” (for example the interests, transactions, and ventures) including the nature and location of any property of any of the persons referred to in paragraphs 180(1)(a)-(c). The person to be examined may also include lawyers, accountants, bankers and other advisers of the any of the persons referred to in paragraphs 180(1)(a)-(c).
Upon the cessation of the restraining order, the examination order also ceases to have effect.
Clause 181 Examination orders relating to applications for confirmation of forfeiture
This clause applies where an application has been made to quash a person’s conviction (refer: clauses 81, 107, 146 and 173). The court may make an order for the examination of a person, including the person whose conviction is quashed, and a person whose property, or interest in the property is the subject of a forfeiture, pecuniary penalty order or literary proceeds order. Those persons and their spouses can be examined about the “affairs” (for example the interests, transactions, and ventures) including the nature and location of any property of any of the persons referred to in paragraphs 181(1)(a)-(c). The person to be examined could also include lawyers, accountants, bankers and other advisers of any of the persons referred to in paragraphs 181(1)(a)-(c). The examination order ceases if the application to quash is withdrawn or when the court makes a decision on the application.[15]
[15]The Parliament of the Commonwealth of Australia, House of Representatives, Proceeds of Crime Bill 2002, Explanatory Memorandum, 66.
The parliamentary intention for the Act, as a whole, is to prevent ‘criminals from being able to enjoy the fruits of their crimes, by depriving them of the proceeds and benefits gained from criminal conduct, and to prevent the re-investment of those proceeds and benefits in further criminal activities’.[16]
[16]Ibid, [1].
In Sak Cheung Duncan Lam v The Commissioner of the Australian Federal Police,[17] Tate, Beach, Ferguson JJA said of the provisions:
Sections 180, 180A and 180B of the Act permit examination orders to be made in relation to restraining orders, exclusion applications and applications for compensation. Section 180 deals with examination orders relating to restraining orders, s 180A deals with orders relating to applications for exclusion and s 180B deals with examination orders relating to applications for compensation. In each case, the relevant section provides for the examination of any person ‘about the affairs of a person’ who claims an interest in relevant property. In relation to restraining orders, an examination order may be made for the examination of any person about the affairs of a person who is ‘a suspect in relation to the restraining order.[18]
The scope of s 180 of the Act
[17][2017] VSCA 9 (8 February 2017) (“Lam”).
[18]Ibid, [11].
An applicant for an examination order under ss 180, 180A and 180B must demonstrate adequate grounds for the order to be granted.[19] It is incumbent upon the Commissioner seeking an order to establish the adequacy of these grounds by sworn evidence. The purpose for establishing adequate grounds was considered in Director of Public Prosecutions v Nestor Chi-Yeung Chan and Paul Chan[20] by Crispin J:
The provisions governing an examination…enable the person to be asked questions to which he or she may not be entitled to decline to answer on the ground of self-incrimination, and that such an investigation may therefore place that person in a position of considerable prejudice.[21]
[19]Ibid, [38].
[20][2004] ACTSC 101 (3 September 2004).
[21]Ibid, [27].
The application must show that there are real questions as to the true position of the source and ownership of property subject to a restraining order[22] and more broadly, that it may relate to other property which might be the proceeds of crime.[23]
[22]Lee v Director of Public Prosecutions (Cth) (2009) 75 NSWLR 581, 594.
[23]Ibid; Lam, [38].
The limits on s 180 were considered in Lam, in which the Court observed that:
…The position might have been different had the applicant at first instance mounted an argument that, on the evidence, while an order might have been made in respect of the affairs of Nguyen [the accused], nothing supported an order in respect of the affairs of one or some of her other family members. If such an argument had been put to the judge, it may have been open to counsel who appeared for the applicant at first instance to contend at some time between the delivery of reasons and the making of the order, either that the reasons did not support the making of an order in the terms submitted by the Commissioner, or that the judge had not dealt with all of the issues that were in fact argued — and in particular the individual cases concerning the affairs of Tran, Michael Nguyen, Michael Jnr, Brandon and Dunstan [family members]. However, the applicant at first instance chose to resist the application to be examined with respect to the affairs of all six individuals primarily by denying the existence of a de facto relationship with Nguyen. Nguyen was clearly the point of connection between the applicant and the others. Tran, Michael Nguyen, Michael Jnr, Brandon and Dunstan all bore a direct familial connection with Nguyen and the applicant’s relationship with her, if it existed, was, in the circumstances, clearly a foundation for his knowledge of the affairs of the others... In our view…the judge had before him adequate grounds for the making of an examination order.[24]
[24]Lam, [41].
As to the legitimacy of an examination order, in Lee v DPP (Cth),[25] the New South Wales Court of Appeal said:
Underlying the reasoning in Director of Public Prosecutions (Cth) v Jo there appears to have been a concern that an examination under Pt 3–1 of the Act could constitute an illegitimate attempt by the Director to obtain material sufficient to allow delaying of charges, or to bolster an existing charge. There are two difficulties with that approach. The first is the need to identify the limits of a legitimate examination under Pt 3–2; the second is to justify the grant of a stay without permitting the examination to go ahead in any form, or even permitting the court to consider whether to make an examination order. If there is a further assumption that an examination will always be an abuse of process where charges have not been laid, or possibly where they have been laid but have not been determined, such a view is inconsistent with the express purposes of the Proceeds of Crime Act (Cth). If some form of examination is thought to be legitimate, but there is a fear that the boundaries of legitimacy will be exceeded (again ignoring the fact that there are other mechanisms which would allow a person protection), a real risk of such an outcome, absent a stay of the forfeiture proceedings, must be demonstrated before a stay is appropriate.
It is sufficient for present purposes to accept that the reasoning in Director of Public Prosecutions (Cth) v Jo is not directly applicable to the present proceedings for the reasons noted above. It is not necessary, therefore, to consider whether the reasoning underlying the decision is “plainly wrong”. However, in part it appears to embrace a view of the statutory scheme which is inconsistent with that outlined above and may therefore be doubted.[26]
[25](2009) 75 NSWLR 581.
[26]Ibid, [598] – [599] (emphasis added).
Application of these principles to the orders made on 5 December
For present purposes, I accept that it is open on this application for Mr Guo to seek to revisit the orders I made on 5 December 2016, despite his election not to participate in the hearing.[27]
[27]See Newmont Yandle Operations Pty Ltd v J Aron Corp (‘Newmont’) (2007) 70 NSWLR 411; Hodgson v Amcor Ltd (No.8) [2012] VSC 162 (27 April 2012), [30].
In Mr Guo’s submissions filed on 28 March 2017 three contentions were put forward which would, it was submitted, ‘ensure that the Order made on 5 December 2016 satisfies the requirements of the Act, and so that the Examiner is given specific direction as to the bounds of the examination’, namely:[28]
[28]Written Submissions of Guo Zhimin filed 28 March 2017, [3].
(a) must the Court’s order specify that the examination relates to Mr Zhang’s affairs;
(b) does the current examination notice extend beyond the permissible ambit of Mr Zhang’s affairs – this complaint focuses on the requirement to provide documents; and
(c) if yes to (b), should the Court declare the notice to be an invalid exercise of power.
The terms of the examination order
I am satisfied that Mr Guo is a person who falls within s 180(1) of the Act. Mr Guo deposed that he obtained $2,000,000 AUD from winnings at Crown Casino Melbourne. He then says that he subsequently provided a loan of that sum to Mr Zhang that, in turn, was applied to the purchase price of the Canterbury Property which would be repaid without interest when the Canterbury Property is to be sold. That account, on its own, is sufficient to establish a basis for an examination concerning the acquisition of the property pursuant to s 180(1).
In my view, the submissions on behalf of Mr Guo (albeit made late) as to the breadth of the orders made on 5 December 2016 should be accepted, at least to the point of clarifying the scope of those orders. I acknowledge the force in the Commissioner’s contention that there could have been no real doubt as to what the orders were directed to (especially in the light of the orders relating to the other examinees and where evidence has already been filed). However, I think it preferable that the orders should, for the benefit of the examiner and the parties, identify with relative precision the affairs which are to be the subject of the examination. This is particularly so given the coercive nature of a s 180 examination.
It is therefore appropriate to make a further clarifying order in similar terms to those made in respect of the other examinees – Zhang, Pei, Zhu and Bayliss.
Accordingly I will make a further order as follows:
For the avoidance of doubt concerning the order of 5 December 2016, it is ordered that Mr Guo be examined about the restrained property including the circumstances surrounding the acquisition of the restrained property, the nature of any of Heng Jie Zhang’s and Ting Shen’s interest in the restrained property and the origin of the monies used to purchase the restrained property.
There should be no order as to the costs of this application.
Should this Court, on this application, determine whether the examination notice is too wide?
The submissions filed by both Mr Guo and the Commissioner address the issue as to whether the examination notice exceeds the examiner’s power under s 183 of the Act.
The Act enables the Commissioner to require production of documents for the purpose of an examination under s 180; the documents required to be produced under the notice include:
a) A copy of the passport of Guo Zhimin covering the period 2010 to the present date;
b) All documents evidencing any loan between Heng Jie Zhang and Guo Zhimin for $2 million, used to purchase the Canterbury property;
c) All documents evidencing any repayments by or on behalf of Heng Jie Zhang of any $2 million loan to him from Guo Zhimin…;
d) All documents evidencing any alleged winnings of Guo Zhimin from any Casino from 1 July 2008 to the present date;
e) All tax returns filed by Guo Zhimin from 1 July 2010 to the present date;
f) All documents containing any communications between Pei Liang Zhang and Guo Zhimin relating to Guo Zhimin’s attending any casinos in Australia during the period 1 July 2010 to the present date;
g) Any documents evidencing any Australian real property owned by Guo Zhimin or owned by any company in which Guo Zhimin holds an interest;
h) All documents containing communication between Guo Zhimin and any of: Heng Jie Zhang, Ying Shen, Pei Liang Zhang, He Weidong, Ze Zhai Song, Changrong Zhu, Phoi Hang Tat, Zheng Fang Wu, and/or Feng Yi, during the period 1 January 2012 to the present date that relate to the acquisition of each or any of the Restrained properties;
i) All documents that relate to the requests from Tony Hargreaves Lawyers to you requesting that you swear or affirm the affidavit dated 1 November 2013 which was filed in the Supreme Court of Victoria in Proceeding number S CI 2013 02407; and
j) All documents that record when you held conferences with a solicitor from Tong Hargreaves Lawyers or counsel retained by Tony Hargreaves Lawyers in relation to the preparation of any draft affidavits by you or on your behalf.
Mr Guo submits that the contents of the notice are beyond Mr Zhang’s affairs and, further that a number of the documents required to be produced pursuant to the examination notice do not fall within the permissible scope of the notice as they relate only to his affairs and not those of Mr Zhang. He argues that the notice therefore exceeds the power contained under s 183 and is subsequently invalid.
I do not propose to outline the submissions in any further detail as in my opinion, this issue does not fall within the scope or the purpose of this ruling which was, essentially, to clarify the orders of 5 December 2016.
I think it inappropriate, on an application such as this (made on the papers and with the primary purpose of clarifying the scope of the earlier orders), to endeavour to interfere with the examiner carrying out her functions as provided by Part 3.1 of the Act. The order of the Court in relation to the scope of the examination has now been rectified. The examiner will, undoubtedly, consider the terms of the notice and the scope of the inquiry in light of these orders.
In any event (and in the hope that it may assist the parties and the examiner), I reject the proposition that the notice is to be read in the blinkered fashion suggested by Mr Guo. It is clear (having regard to both the documents sought and the notice itself) that the examination notice concerns:
(a) The circumstances surrounding the acquisition of the restrained property and particularly that of the Canterbury property;
(b) The nature of Mr Zhang and Ms Shen’s interest in the property; and
(c) The origin of the monies used to purchase the property – which may well have relevance to the legitimacy of the alleged interests of Mr Zhang and Ms Shen in the property.
Given that it is not in issue that Mr Guo provided the funds which were used to acquire the property and that he contends that the funds were obtained from winnings at the casino (and bearing in mind that on the Commissioner’s case he has insufficient declared taxable income to account for those funds), then the contents of the notice (including the request for the documents) is entirely comprehensible and, at least on preliminary examination, appears well within the scope of the s 180 inquiry.
It follows that for both these reasons there is no basis for the making of any orders sought by Mr Guo relating to the conduct of the examination (or the validity of the notice).
Conclusion
The Commissioner has established, on sworn evidence, adequate grounds for an order to be granted in relation to an examination. I am also satisfied that there are real questions as to the true position of the source and origin of monies used to purchase the property which is the subject of the restraining order.
To clarify the original order made on 5 December 2016, I propose to make the order I have set out at paragraph [40].
There should be no order as to the costs of this application.
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