New South Wales Crime Commission v Brendon Phong Tran (No. 2)

[2013] NSWSC 1854

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Brendon Phong Tran (No. 2) [2013] NSWSC 1854

Hearing dates:

11 December 2013

Decision date:

11 December 2013

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Pursuant to Rule 6.24 of the Uniform Civil Procedure Rules 2005 Thi Phuoc Vo be joined as the Second Defendant to these proceedings.

2. Pursuant to Rule 6.24 of the Uniform Civil Procedure Rules 2005 Kim Christine Tran be joined as the Third Defendant to these proceedings

3. Pursuant to Rule 6.24 of the Uniform Civil Procedure Rules 2005 Donna Lee Tran be joined as the Fourth Defendant to these proceedings

4. Pursuant to section 10A of the Criminal Assets Recovery Act 1990 no person (other than any registered mortgagee dealing with its right to do so under the registered mortgage) is to dispose of, or attempt to dispose of, or otherwise deal with or attempt to otherwise deal with any interest in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990) of Thi Phuoc Vo, including the interest in property in the property specified in Schedule One hereto.

5. Pursuant to section 10A of the Criminal Assets Recovery Act 1990 no person (other than any registered mortgagee dealing with its right to do so under the registered mortgage) is to dispose of, or attempt to dispose of, or otherwise deal with or attempt to otherwise deal with any interest in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990) of Kim Christine Tran, including the interest in property in the property specified in Schedule Two hereto.

6. Pursuant to section 10A of the Criminal Assets Recovery Act 1990 no person (other than any registered mortgagee dealing with its right to do so under the registered mortgage) is to dispose of, or attempt to dispose of, or otherwise deal with or attempt to otherwise deal with any interest in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990) of Donna Lee Tran, including the interest in property in the property specified in Schedule Three hereto.

7. Pursuant to section 12(1) of the Criminal Assets Recovery Act 1990 Thi Phuoc Vo shall be examined on oath before a Registrar of the Court concerning her affairs, including the nature and location of any property in which she has an interest.

8. Pursuant to section 12(1) of the Criminal Assets Recovery Act 1990 Kim Christine Tran shall be examined on oath before a Registrar of the Court concerning her affairs, including the nature and location of any property in which she has an interest.

9. Pursuant to section 12(1) of the Criminal Assets Recovery Act 1990 Donna Lee Tran shall be examined on oath before a Registrar of the Court concerning her affairs, including the nature and location of any property in which she has an interest.

10. Leave is granted to the Plaintiff to obtain from the Registry dates for the examinations ordered in Orders 7, 8 and 9 above.

11. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Thi Phuoc Vo shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Thi Phuoc Vo, a statement verified by oath of Thi Phuoc Vo setting out the particulars sought in Schedule Four hereto.

12. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Kim Christine Tran shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Kim Christine Tran, a statement verified by oath of Kim Christine Tran setting out the particulars sought in Schedule Four hereto.

13. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Donna Lee Tran shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Donna Lee Tran, a statement verified by oath of Donna Lee Tran setting out the particulars sought in Schedule Four hereto.

14. Liberty is granted to the parties to apply on three (3) days' notice.

15. The costs of obtaining these orders shall be costs in the cause.

16. Pursuant to Rule 36.4(1)(a) of the Uniform Civil Procedure Rules 2005 these orders are to take effect as of the date hereof.

Catchwords:

CRIMINAL LAW - confiscation of proceeds of crime - restraining orders

Legislation Cited:

Crimes Act 1900
Criminal Assets Recovery Act 1990
Drug Misuse and Trafficking Act 1985
Uniform Civil Procedure Rules 2005

Category:

Interlocutory applications

Parties:

New South Wales Crime Commission (Plaintiff)
Brendon Phong Tran, Phi Phuoc Vo, Kim Christine Tran and Donna Lee Tran (Defendants)

Representation:

Counsel:
R Katrib (Plaintiff)
No appearance (Defendants)
Solicitors:
New South Wales Crime Commission (Plaintiff)
No appearance (Defendants)

File Number(s):

2011/293013

Judgment

1. This is a further application in the matter of the New South Wales Crime Commission v Brendon Tran. On 9 September 2013 Garling J made restraining orders in these proceedings in respect of the interests of Defendants in property specified in those orders.

1. The Plaintiff now seeks to amend the summons to make claims of unexplained wealth orders against three other persons associated with Mr Tran. Those persons are Phi Phuoc Vo, Kim Christine Tran and Donna Lee Tran. The amended summons would add those persons as Defendants in the proceedings.

1. On the present motion restraining orders under s 10A of the Act are sought against those persons.

1. The application is supported by an affidavit of Jonathan Lee Spark sworn 10 December 2013. Mr Spark suspects that Brendon Tran has engaged in serious crime related activity or serious crime related activities as defined in s 6 of the Act; such activities being the supply of a prohibited drug contrary to s 25 of the Drug Misuse and Trafficking Act 1985, obtaining a financial advantage by deception contrary to s 178BA of the Crimes Act 1900 and dishonestly obtaining a financial advantage by deception contrary to s 192B of the Crimes Act. All of these offences are serious criminal offences pursuant to s 6(2)D of the Act.

1. The suspicions of Mr Spark are based on the matters more particularly set out in paragraph 9 of his affidavit. Mr Spark also suspects that each of the three proposed further Defendants have acquired serious crime derived property within the meaning of s 9 of the Act because of the serious crime related activity of Brendon Tran.

1. In relation to Phi Vo, the suspicion is based on the grounds set out in paragraph 11 of Mr Spark's affidavit. In respect of Kim Tran, the suspicion is based on the matters set out in paragraph 15 of his affidavit and in respect of Donna Tran, the suspicion is based on the matters set out in paragraph 18 of the affidavit.

1. Section 10A(5) of the Act requires an order to be made if the Court is satisfied that there are reasonable grounds for Mr Spark's suspicion. I have read the material that Mr Spark refers to in his affidavit. The matters in the documents that he has annexed, if true, are sufficient to show that the offences he has identified have been committed. The documents and facts recorded plainly afford reasonable grounds for the suspicions deposed to by Mr Spark.

1. Section 10A(4) enables notice to be given to the proposed Defendants before the order is made if the Court thinks fit. Mr Spark has deposed to the speed at which it is possible for notified parties to dispose of or attempt to dispose of property to defeat orders under the Act. In particular, I note what Mr Spark says in paragraph 23 of his affidavit concerning the existing freezing orders under Western Australian comparable legislation and his notification that the Western Australian Office of the Director of Public Prosecutions considers it now appropriate to allow the present Plaintiff to lead the confiscation action against Mr Tran.

1. For all of those reasons, I am satisfied that it is appropriate not to give notice to the proposed Defendants before the order is made. They have their rights under s 10C of the Act.

1. I am satisfied that it is appropriate that the proposed Defendants should be added as Defendants in the proceedings and that the summons should be amended accordingly.

1. I have already indicated that the suspicions held by Mr Spark have been held on a reasonable basis and that the restraining orders must therefore be made.

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Decision last updated: 05 February 2014