Keystart Loans Ltd v The State of Western Australia
[2012] WASC 266
•25 JULY 2012
KEYSTART LOANS LTD -v- THE STATE OF WESTERN AUSTRALIA [2012] WASC 266
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 266 | |
| 25/07/2012 | |||
| Case No: | CPCA:85/2009 | 5 JULY 2012 | |
| Coram: | EM HEENAN J | 5/07/12 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | First plaintiff's objection dismissed Declaration of confiscation First and second plaintiffs to be paid the value of their interests in the land from the proceeds of sale | ||
| B | |||
| PDF Version |
| Parties: | KEYSTART LOANS LTD TAMMY LEE BROWN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal property confiscation Objections dismissed Declaration of confiscation of property First plaintiff's entitlement as mortgagee Second plaintiff's entitlement as joint tenant |
Legislation: | Criminal Property Confiscation Act 2000 (WA) |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
TAMMY LEE BROWN
Second Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - Objections dismissed - Declaration of confiscation of property - First plaintiff's entitlement as mortgagee - Second plaintiff's entitlement as joint tenant
Legislation:
Criminal Property Confiscation Act 2000 (WA)
(Page 2)
Result:
First plaintiff's objection dismissed
Declaration of confiscation
First and second plaintiffs to be paid the value of their interests in the land from the proceeds of sale
Category: B
Representation:
Counsel:
First Plaintiff : No appearance
Second Plaintiff : Mr N D Anderson
Defendant : Ms F A Humphries
Solicitors:
First Plaintiff : No appearance
Second Plaintiff : Aboriginal Legal Service (WA)
Defendant : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 EM HEENAN J: This is an application brought by the Director of Public Prosecutions (the DPP) pursuant to the Criminal Property Confiscation Act 2000 (WA) seeking orders to dismiss the plaintiff's objection, the plaintiff being Keystart Loans Ltd; secondly, for a declaration that the property the subject of freezing notice number WAPFM09152 has been confiscated, pursuant to s 7(2) of the Criminal Property Confiscation Act, which I will now refer to as the CPCA, and thirdly, for orders under s 82(5) of that Act that the first and second plaintiffs, namely, Keystart Loans and Ms Tammy Lee Brown, be paid the value of their interests in the property when the property is sold after confiscation.
2 The facts and background are these: on 11 August 2009, pursuant to s 34 of the Act, the freezing notice already mentioned was issued on the basis that there were reasonable grounds to suspect that the specified property was crime-used. The evidence in support of that fact is contained in the affidavit of Ms Peters sworn 15 March 2012.
3 Under s 82(4) of the Act, if there is crime-used property the court may set aside a freezing notice if an objector is able to establish certain criteria. In this case the DPP accepts that Keystart Loans Ltd, as mortgagee, and Tammy Lee Brown, as co-owner of the property, are able to establish that they are innocent parties in relation to the property under s 82(4)(c) of the Act. However, neither plaintiff can satisfy the final criterion for the release of the property under s 82(4)(d), namely, that each other owner, if there is more than one, is an innocent party in relation to the property. This is because the other co-owner, Mr Skinner, the other joint tenant, has been convicted of the offences in question. In these circumstances, the Act provides that, after confiscation and when the property has been sold, a mortgagee is to be paid for the value of its share in the property, which in this case is established by its rights under the mortgage, and for the second plaintiff, as co-owner, to be paid the value of her share in the property as appearing from the certificate of title after satisfaction of the mortgagee.
4 Consequently, the orders being sought will ensure that the plaintiffs as innocent parties are not disadvantaged by operation of the Act. The necessary orders allowing this to be done under s 82 of the Act can be made once the first and second plaintiffs' objections are dismissed. Under s 36(1) of the Act, as soon as practicable after a freezing notice is issued, a copy of it must be served personally on the person from whom the property was taken, if any, and on any other person who at the time the freezing notice was issued the applicant for the freezing notice is aware of, who is or may be or who claims to be, an interested party.
(Page 4)
5 Section 36(4) of the Act provides that a copy of a freezing notice must also be served on any person who, as a result of information contained in a statutory declaration provided pursuant to s 37, the applicant becomes aware is or may be or claims to be an interested party. That same section, s 37, provides that a person served with a copy of the freezing notice under s 36 must make a statutory declaration to a particular police officer stating, among other things, whether he or she is aware if there is any other person who is or may be or claims to be an interested person and, if so, to provide certain specified details.
6 An interested party within the meaning of the Act is defined as being 'a person who has an interest in the property that would enable the person to succeed on an objection to the confiscation of the property'. In the present case, the freezing notice was served on all the persons known to the DPP who were or might be interested parties, they being Mr Skinner, Ms Brown, Keystart Loans Ltd and Ms Sandra Boder.
7 I turn now to the question of confiscation. Under s 7(1) of the Act, property which is the subject of a freezing notice is automatically confiscated unless an objection to confiscation is filed on or before the 28th day after the service cut off date for the property. Keystart Loans Ltd, the mortgagee, filed an originating summons and a chamber summons on 20 August 2009 pursuant to s 79, s 81 and s 82 of the Act in these present proceedings. Ms Brown has been joined to the proceedings by order of the court. No other objections have been filed. That is significant because Mr Skinner as co-owner has not filed any objection and his time for filing an objection has expired and cannot be extended.
8 The result of all this is that the property is not automatically confiscated, pursuant to s 7(1) of the Act. Its destiny is controlled by s (7)(2), which provides:
If an objection to the confiscation of frozen property is filed on or before the 28th day after the service cut off date for the property, the property is confiscated if
(a) the objection of each objection, if there are more than one, is finally determined;
(b) where the property is subject to a freezing notice, the freezing notice is not cancelled or set aside, and
(c) where the property is subject to a freezing notice, the freezing order is not set aside.
(Page 5)
9 Section (7)(3) of the Act provides:
However, property frozen under a freezing notice is not confiscated under subsection (1) of (2) -
10 including the section I have just quoted -
until a freezing notice is filed in accordance with section 36(6)(a).
11 That section in turn provides that the applicant must ensure that the freezing notice is filed in the court specified in the notice. All this means that the court must make a declaration in respect of property described in the application if and when the court is satisfied of the following matters: first, that the objection or each objection is finally determined; secondly, that the freezing notice has not been cancelled or set aside and the court is satisfied that the freezing notice has been filed in accordance with s 36.
12 In this case, the freezing notice has not been set aside and it has not been cancelled in respect of the property which is sought to be confiscated, and it has been filed in accordance with s 36(6)(a). The evidence of facts supporting that conclusion are also contained in the affidavit of Ms Peters already mentioned.
13 I come now to the question of the determination of objections. As already stated, under s 7(2) the property will be automatically confiscated pursuant to that section when the objection proceedings filed by Keystart Loans and Ms Brown are dismissed, and if the court finds that the property has been confiscated under that subsection the court must, it having no discretion in the matter, make a declaration to that effect under s 30(2) of the Act.
14 I come now to the property in question and its ownership. Mr Graham Steven Skinner and Ms Tammy Lee Brown are the registered proprietors of the frozen property. Keystart Loans has an interest in the property as a registered mortgagee under mortgage number J212283. On 24 June 2011, Mr Skinner was sentenced in the District Court in Perth in relation to 50 separate offences and, in particular, in relation to one count of attempt to manufacture methylamphetamine and two counts of manufacturing methylamphetamine. The Judge dealing with that case determined that Mr Skinner was operating, in effect, a retail drug business; secondly, that the manufacture of the methylamphetamine at Skinner's house had been ongoing and frequent, and thirdly, that Mr Skinner was a principal in the manufacture of methylamphetamine and that he was fully involved in the process. That being the case, he has been
(Page 6)
- convicted of an offence which leads to the confiscation of the property after the completion of the procedures which I have described.
15 The objection by Keystart Loans Ltd has not been pursued and is dismissed. Ms Brown has indicated through her counsel today that she does not wish to proceed with her objection, and it too is now dismissed. That being the case, I am able to make the declaration sought as set out in the summons that the DPP filed in the court on 29 March 2012.
16 Accordingly, I make these orders:
1. The objection of the first plaintiff; that is, Keystart Loans Ltd, to the confiscation of frozen property made by notice of originating summons dated 20 August 2009 be dismissed.
2. The objection of the second plaintiff, Tammy Lee Brown, to the confiscation of frozen property made on 12 May 2011 be dismissed.
3. The land situated at and known as Lot 76 on plan 11713, being the whole of the land comprised on Certificate of Title Vol 2104, Folio 754, commonly known as 24 Kootingal Road, Armadale, hereinafter referred to as 'the Land', has been confiscated to the State of Western Australia.
4. Pursuant to s 82(4) and s 82(5) of the Criminal Property Confiscation Act 2000 (WA), when the Land is sold after confiscation
(a) the first plaintiff, Keystart Loans Ltd, is to be paid an amount due and owing to it as at the date of settlement, pursuant to the rights and entitlements under the registered mortgage already mentioned, J212283, and
(b) subject to the interests of the first plaintiff as mortgagee, the second plaintiff, Tammy Lee Brown, is to be paid an amount equal to her one half share as joint tenant in the Land.
5. There will be no order as to costs.
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