New South Wales Crime Commission v Chau

[2018] NSWSC 1527

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Chau [2018] NSWSC 1527

Hearing dates:

10 October 2018

Date of orders:

10 October 2018

Decision date:

10 October 2018

Jurisdiction:

Common Law

Before:

Davies J

Decision:

NON-PUBLICATION ORDERS:

 

Pursuant to s 7 and upon the ground set out in s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act), there shall be a non-publication order over the judgment and orders made today. The non-publication order is to expire on 7 November 2018.

 

ORDERS:

 

Upon the Plaintiff giving the usual undertaking as to damages (the giving of which by its solicitor being noted) and

 

Considering that, having had regard to the matters contained in the affidavit of Jonathan Lee Spark sworn 5 October 2018, there are reasonable grounds for the suspicion stated therein.

 

The Court orders:

 

1. 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 and as provided by Orders 2, 3 and 4 below) 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 Chau Thai Chau, including the interest in property in the property specified in Schedule One hereto.

 

2. Pursuant to section 12(1) of the Criminal Assets Recovery Act 1990 the restraining order be varied to allow Chau Thai Chau or any other person (“the vendor”) to deal with the interest of Chau Thai Chau in the property specified in item 2 of Schedule One hereto (“the Kemps Creek property”) for the purpose either of completing the sale of the Kemps Creek property or of selling the Kemps Creek property at a price agreed in writing by the Plaintiff (“the sale of the Kemps Creek property”).

 

3. Pursuant to section 12(1) of the Criminal Assets Recovery Act 1990 the proceeds received from the sale of the Kemps Creek property may be applied to pay the following:

 

(a)   the amount necessary to discharge any registered mortgage secured over the Kemps Creek property;

 

(b)   reasonable legal and conveyancing costs on the sale of the Kemps Creek property;

 

(c)   any reasonable agent’s commission on the sale of the Kemps Creek property;

 

(d)   any fee payable to a registered valuer for a valuation of the Kemps Creek property;

 

(e)   any rates or other adjustments or monies reasonably payable under any Agreement for Sale; and

 

(f)   any other expenses incurred with the consent in writing of the Plaintiff, the giving of such consent to be in the absolute discretion of the Plaintiff.

 

4. Pursuant to section 10B(2) of the Criminal Assets Recovery Act 1990, the net proceeds of the sale of the Kemps Creek property (after the payment of monies mentioned in order 3 above) shall be paid, by bank cheque, to the NSW Trustee and Guardian, to be held by it until further order.

 

5. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Chau Thai Chau be examined on oath before a Registrar of the Court concerning his affairs, including the nature and location of any property in which he has an interest.

 

6.   Leave is granted to the Plaintiff to obtain from the Registry dates for the examination ordered in Order 5 above.

 

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

 

8.   Liberty is granted to the Plaintiff and Chau Thai Chau to apply on three (3) days’ notice.

 

9.   This matter be listed for directions before the Common Law Registrar at 9am on Monday 18 February 2019.

 

10.   The costs of obtaining these orders be costs in the cause.

 

11. 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.

 

SCHEDULE ONE

 

1.   The whole of the property described as Auto Consol 8451-104, Lots 11-12, section 24 in DP489 in the Schedule of Parcels, Local Government Area Fairfield, Parish of St Luke, County of Cumberland Title Diagram DP 489, also known as 78A Ligar Street, Fairfield Heights, New South Wales 2165 and registered in the name of Chau Thai Chau as sole owner.

 

2.   The whole of the property described as Lot 11 in Deposited Plan 25759 Local Government Area Liverpool, Parish of Cabramatta, County of Cumberland, also known as 110 Overett Avenue, Kemps Creek, New South Wales 2178 and registered in the name of Chau Thai Chau as sole owner.

 

SCHEDULE TWO
1. Provide full particulars of the nature and extent of all your interests in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990), including in relation to each item of property:

 

(a)   a full description of your interest in the property, including the nature of that interest and, where possible, the estimated value, or in the case of bank accounts or deposits - the estimated balance, of that interest;

 

(b)   the location of the interest;

 

(c)   the name of the person or institution in whose custody title documents in respect of the interest are believed to be;

 

(d)   the approximate date of acquisition of the interest;

 

(e)   the source of funds used to acquire the interest.

 

2.   Provide full particulars of your liabilities on both a capital and recurring basis, including, in relation to each liability:

 

(a)   a full description of the liability including the nature of that liability and the amount of that liability;

 

(b)   the name of the person or institution to which the liability is owed.

 Orders to be entered forthwith.

Catchwords:

CRIMINAL LAW – proceeds of crime – restraining orders

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)
Crime Commission Act 2012 (NSW)
Crimes Act 1900 (NSW)
Criminal Assets Recovery Act 1990 (NSW)
Uniform Civil Procedure Rules 2005

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural and other rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Chau Thai Chau (Defendant)

Representation:

Counsel:
R Katrib (Plaintiff) – Ex parte

  Solicitors:
Legal Unit, New South Wales Crime Commission (Plaintiff)

File Number(s):

2018/309923

Judgment

1. The plaintiff seeks a restraining order under section 10A of the Criminal Assets Recovery Act 1990 (NSW) pending the making of an unexplained wealth order under section 28A of the Act. The summons is supported by an affidavit of Jonathan Lee Spark sworn 5 October 2018. Mr Spark is an authorised officer of the plaintiff.

2. Section 10A(5) of the Act requires the Court to make an order if the application is supported by an affidavit of an authorised officer setting out the matters contained in that subsection and stating the grounds on which the suspicion referred therein to is based, and the Court considers there are reasonable grounds for the suspicion.

3. Mr Spark deposes to a suspicion and belief that the defendant has engaged in serious crime related activity being the obtaining of financial advantage by deception contrary to section 192E(1)(b) of the Crimes Act 1900 (NSW). That is a serious criminal offence as defined in paragraph 6(2)(d) of the Criminal Asset Recovery Act.

4. The nature of the obtaining financial advantage by deception arises from the alleged making of false statements and providing false documents by the defendant in support of two loan applications to RAMS.

5. Mr Spark bases his suspicion on the basis of a number of documents that have been provided to the plaintiff pursuant to notices issued pursuant to section 29 of the Crime Commission Act2012 (NSW). Those documents include a statement by a real estate agent, Mr Thuan Tran, who has inspected invoices purportedly from the company of which he is a director. Those invoices were provided by the defendant to RAMS to evidence income from a rental property. Whilst there is no doubt that the defendant owns the property, the effect of Mr Tran's statement is that his company does not know the defendant and has never managed that particular property.

6. The documents also include a statement from an officer of a company called Metal Manufactures Limited. Some of the documents produced by the defendant to RAMS were purported pay slips from Metal Manufactures disclosing the weekly pay of the defendant. The officer from that company says that the defendant has never been employed by the company and has never been paid any wages by them.

7. I am satisfied from my own perusal of the documents exhibited by Mr Spark to his affidavit that the suspicion that Mr Spark’s suspicion that the defendant has engaged in serious crime related activity is reasonably held.

8. The plaintiff asks that the orders be made without prior notice to the defendant. That is on the basis of Mr Spark's long experience which attests to the speed with which persons are able to dispose of interests in property very quickly in order to defeat the operation of the Act. That matter is particularly emphasised in the present case when the documents disclose prima facie serious fraudulent activity by the defendant.

9. I am satisfied in the circumstances that it is appropriate that orders should be made without prior notice to the defendant. The defendant has his rights under section 10C of the Act to review these orders.

10. The plaintiff has sought and will be granted a search warrant in aid of the restraining orders that are sought. That search warrant is for property tracking documents which might be at the premises of one of the properties owned by the defendant. The time for execution of the warrant expires on 7 November 2018. In those circumstances, the plaintiff seeks a non-publication order in respect of the orders that I have made until that time.

11. I consider in the circumstances that it is appropriate such an order should be made against the possibility that if the orders are served prior to the warrant being executed there may be destruction or removal of the property tracking documents which are now believed to be at the premises.

12. In those circumstances, I will make an order under section 7 on the ground contained in section 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW).

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Decision last updated: 08 November 2018