In the matter of an application by the Commissioner of the Australian Federal Police

[2017] NSWSC 1206

Supreme Court

New South Wales

Medium Neutral Citation:

In the matter of an application by the Commissioner of the Australian Federal Police [2017] NSWSC 1206

Hearing dates:

30 August 2017; 1 September 2017

Date of orders:

01 September 2017

Decision date:

01 September 2017

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Forfeiture orders made in respect of the property specified in schedules 2 to 5 in accordance with orders 2, 3, 4 and 5 of the short minutes of order;

 

(2) Pursuant to s 69(2) Proceeds of Crime Act 2002 (Cth), order made in accordance with paragraph 6 of the short minutes of order to be entered forthwith;

 (3) Direct that the seal of the Court be affixed by the short minute of order signed by me and dated today.

Legislation Cited:

Proceeds of Crimes Act 2002 (Cth)

Category:

Principal judgment

Parties:

The Commissioner of the Australian Federal Police (Plaintiff)

Representation:

Counsel:

 

M Short (Plaintiff)
W Chan (Defendant)

  Solicitors:

File Number(s):

2017/62310

EX TEMPORE Judgment (REVISED)

1. These proceedings are brought under the provisions of the Proceeds of Crimes Act 2002 (Cth).

2. On 27 February 2017, Justice Natalie Adams made restraining orders in respect of five items of property described in Schedules 1 to 5 of the summons then before her under the provisions of section 19 of the Act. The Commissioner is now moving for forfeiture orders under section 49 of the Act.

3. Under the proceeds legislation, the Court must make an order that property specified in the order is forfeited to the Commonwealth if certain conditions set out in the succeeding provisions of section 49 are satisfied.

4. I am satisfied in accordance with section 49(1)(a) that the Commissioner of the Australian Federal Police is a responsible authority for the restraining orders that were made under section 19 and that those orders cover the property contained in Schedules 2 to 5 of the amended summons filed in Court on 10 May 2017. I am also satisfied in accordance with section 49(1)(b) that the restraining order has been in force for a period of at least six months. As I have said, it was made on 27 February 2017.

5. Section 49(1)(c) does not apply because no application has been made by any of the interested persons under Division 3, Part 2-1 of the Act for the property to be excluded from the restraining order.

6. I am satisfied from having read the affidavits of Catherine Terese Horan sworn on 29 August 2017 and Mieke Whitford of 30 August 2017 that the possible persons who may be interested in the property have been identified and are the persons named in the schedule handed up by Mr Short today which I will initial, date today and place with the papers.

7. Four of those persons have been represented before me by Mr Chan of Counsel and there clearly can be no issue in relation to those persons about notice. Of the other persons, Ms Longqin Chen has also filed an appearance in the proceedings and her legal representative has been notified of the application and of the hearing today. And Mr Yunhui Xue is also represented and notice has been given to him of this application through his solicitor. I am satisfied that from the affidavit evidence the steps taken to identify the interested persons are reasonable and appropriate.

8. Schedule 2 is real property at Campsie of which Westpac is a mortgagee. Schedule 3 is the bank account with Westpac. Schedule 4 is real property at Telopea of which the ANZ Bank is the mortgagee and schedule 5 is the bank account with ANZ bank. I am satisfied from the evidence to which I have referred that the banks, both Westpac and ANZ, have received notice of this application to the extent to which they may be interested persons.

9. The restraining order was made on the basis that the property was either the proceeds of an offence or the instrument of a serious offence. There is no suggestion of any involvement of any terrorism offence. I am not persuaded that s 49(4) has any application to the application made before me today but in any event, no argument has been put as to why it is not in the public interest that the orders be made.

10. Having made those findings, I am satisfied that I am required to make the order sought. I will make forfeiture orders in respect of the property specified in Schedules 2 to 5 in accordance with orders 2, 3, 4 and 5 of the short minutes of order handed up by Mr Short.

11. Pursuant to section 69(2) of the Act I make an order in accordance with paragraph 6 of the short minutes of order and I direct that these orders may be entered forthwith.

12. By reference to the short minutes of order, in my orders there is a reference to the short minutes of order signed by me, dated today.

13. I direct that the seal of the Court be affixed to the short minute of order.

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Decision last updated: 07 September 2017