In the matter of Zhang

[2022] NSWSC 1384

Supreme Court

New South Wales

Medium Neutral Citation:

Application of Asset Confiscation Operations, Department of Justice and Community Safety (Vic); In the matter of Zhang [2022] NSWSC 1384

Hearing dates:

12 October 2022

Date of orders:

13 October 2022

Decision date:

13 October 2022

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) Pursuant to s 77 of the Confiscation of Proceeds of Crime Act 1989 (NSW), the exclusion order made pursuant to s 20 of the Confiscation Act 1997 (Vic) by Judge Hinchey on 26 August 2022 in the County Court of Victoria in Proceedings No. CI-20-05262 against the real property of Yi ZHANG situated at XXXXX XXXXX , Kingsford, New South Wales (as more particularly described in the Certificate of Title for Lot C in deposited plan XXXXX XX), is registered.

Catchwords:

CIVIL – proceeds of crime – registration of interstate order excluding certain property from Victorian restraining order made – whether an exclusion order is an “amendment” to a restraining order – application determined in the absence of the public and both parties – order registered in NSW

Legislation Cited:

Confiscation Act 1997 (Vic), ss 20, 21, 22, 22A

Confiscation of Proceeds of Crimes Act 1989 (NSW), ss 77, 80

Uniform Civil Procedure Rules 2005, Sch 10, Pt 1, r 7(3)

Category:

Principal judgment

Parties:

Asset Confiscation Operations, Department of Justice and Community Safety (Vic) (Plaintiff)
Yi Zhang (Defendant)

Representation:

Solicitors:
Solicitor for Public Prosecutions (Plaintiff)

File Number(s):

2020/350452

Publication restriction:

Unique personal identifiers have been redacted.

JUDGMENT

1. On 2 December 2020, the County Court of Victoria made a “Serious Drug Offence Restraining Order” under the Confiscation Act 1997 (Vic) (“the Victorian Act”). The order related to items of property in which the defendant, Yi Zhang, was said to have an interest. Relevantly, the order included real estate at XXXXX XXX, Kingsford, described at Lot C in deposited plan XXXXX XX. The order also included various sums of cash.

2. On 10 December 2020, Wright J, sitting as Duty Judge in this Court, made an order under s 77 of the Confiscation of Proceeds of Crimes Act 1989 (NSW) (“the NSW Act”) registering the Victorian restraining order insofar as it related to the Kingsford property.

3. On 26 August 2022, on the application of Li Hua You and with the consent of all parties, the Victorian County Court made an exclusion order pursuant to ss 20-22A of the Victorian Act. The preamble to the exclusion order acknowledged that Li Hua You had “full beneficial interest” in the Kingsford Property and the formal order was as follows:

“Pursuant to s 22A(1) of the Confiscation Act 1997 (Vic), the Applicant’s interest in the real property situated at XXXXX XX, Kingsford in the State of New South Wales more particularly described in Certificate of Title Lot C in deposited plan XXXXX X, is excluded from the operation of the Serious Drug Offence Restraining Order made by His Honour Judge Dyer on 2 December 2020.”

4. By summons filed on 29 September 2022, the plaintiff, represented by the NSW Director of Public Prosecutions (“the Director”), seeks registration of the exclusion order. The Director asked that the application be dealt with in the absence of the public and without the plaintiff’s attendance: see Uniform Civil Procedure Rules 2005, Sch 10, Pt 1, r 7(3). While I acceded to that request, I sought written submissions as to the application of s 77 of the NSW Act. That section provides:

77 Registration of interstate instruments

(1) If an interstate forfeiture order, interstate crime related property declaration or interstate restraining order expressly applies to property in New South Wales, the order or declaration may be registered under this Act.

(2) An interstate forfeiture order, interstate crime related property declaration or interstate restraining order is to be regarded as registered under this Act when a copy of the order or declaration (being a copy sealed by the court or person that made the order or declaration) is registered in accordance with the rules of the Supreme Court.

(2A) A sealed copy of an interstate forfeiture order, interstate crime related property declaration or interstate restraining order is not required for the purposes of registration if it is not the practice of the court or body that issued the order or declaration to seal copies of the order or declaration.

(3) Any amendments made to an interstate forfeiture order, interstate crime related property declaration or interstate restraining order (before or after registration) may be registered in the same way, and any such amendments do not, for the purposes of this Act, have effect until they are registered.

(4) An application for registration may be made by the person on whose application the order or declaration or amendments were made, by an appropriate officer or by a person affected by the order or declaration or amendments.

5. As can be seen the section does not, on its terms, provide for the registration of an exclusion order. The plaintiff acknowledges this. However, I do accept the Director’s submission that a “beneficial and practical interpretation” should be adopted in order “to allow an innocent third party with a legitimate claim to the property to be excluded from the order operation of the original Restraining Order”.

6. It is difficult to accept the submission that the exclusion order is an “amendment” pursuant to s 77(3) of the NSW Act. However, I do accept that s 77, read as a whole and with a purposive approach to its construction, must allow for the registration of an interstate exclusion order. The potential for injustice otherwise, and the kinds of absurd results that might follow, dictate that this must be so.

7. I accept the force of the Director’s submission that the order was made by consent and that there is an innocent third party involved.

8. The Director refers to the structure of the Victorian Act and submits that exclusion orders are not “standalone” orders and fall within that part of the statute that deals with and provides for restraining orders. In other words, once it was made the exclusion order became part of the restraining order and, accordingly, could be registered in New South Wales under s 77 of the NSW Act.

9. An alternative approach, given that the restraining order as registered in this state seemed only to relate to the Kingsford property, would have been to revoke the order: cf s 80 of the NSW Act.

10. In any event, I will make the following order in accordance with the first order sought in the summons:

1. Pursuant to s 77 of the Confiscation of Proceeds of Crime Act 1989 (NSW), the exclusion order made pursuant to s 20 of the Confiscation Act 1997 (Vic) by Judge Hinchey on 26 August 2022 in the County Court of Victoria in Proceedings No. CI-20-05262 against the real property of Yi ZHANG situated at XXXXX X, Kingsford, New South Wales (as more particularly described in the Certificate of Title for Lot C in deposited plan XXXXX X), is registered.

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Decision last updated: 14 October 2022