New South Wales Crime Commission v Daneshyar

[2023] NSWSC 1173

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Daneshyar [2023] NSWSC 1173

Hearing dates:

13 September 2023

Date of orders:

13 September 2023

Decision date:

13 September 2023

Jurisdiction:

Common Law

Before:

Walton J

Decision:

(1) Pursuant to s 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 s 7 of the Criminal Assets Recovery Act 1990) of Abbas Daneshyar, including the interest in property in the property specified in Schedule One, Schedule Two and Schedule Three hereto.

(2) Pursuant to s 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Abbas Daneshyar shall 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.

(3) Pursuant to s 12(1)(b)(ii) of the Criminal Assets Recovery Act 1990 that Torek Ayoub be examined on oath before a Registrar of the Court concerning the affairs of Abbas Daneshyar, including the nature and location of any property in which Abbas Daneshyar has an interest.

(4) Pursuant to s 12(1)(b1) of the Criminal Assets Recovery Act 1990 Mariam Abbas shall be examined on oath before a Registrar of the Court concerning the affairs of Mariam Abbas, including the nature and location of any property in which Mariam Abbas or Abbas Daneshyar has an interest.

(5) Leave is granted to the Plaintiff to obtain from the Registry dates for the examinations ordered in Orders 2, 3 and 4 above.

(6) Pursuant to s 12(1)(e) of the Criminal Assets Recovery Act 1990 that Members of the New South Wales Police Force are authorised to seize and take possession of the property specified in Items 1, 2, 3, 4, 5, 9, 10, 11 and 12 of Schedule One hereto and the property specified in Items 1, 3 and 4 of Schedule Three hereto.

(7) Pursuant to s 10B(2) of the Criminal Assets Recovery Act 1990 the New South Wales Trustee and Guardian shall take control of all the interest of Abbas Daneshyar in the property specified in Items 1, 2, 3, 4, 5, 9, 10, 11 and 12 of Schedule One hereto and the property specified in Items 1, 3 and 4 of Schedule Three hereto.

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

(9) Liberty is granted to the Plaintiff and Abbas Daneshyar to apply on three (3) days’ notice.

(10) Pursuant to s 101 of the Civil Procedure Act 2005 an order for interest.

(11) These proceedings be listed for mention before the Common Law Registrar at 9:00am on Monday 4 December 2023.

(12) 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) 1971 Mazda RX2 with New South Wales registration number FBI17K (and relevant vehicle keys) and registered in the name of Abbas Daneshyar.

(2) 1983 Holden Gemini with New South Wales registration number EVS75C (and relevant vehicle keys) and registered in the name of Abbas Daneshyar.

(3) 2021 Lamborghini Aventador with New South Wales registration number NCG09T (and relevant vehicle keys) and registered in the name of Abbas Daneshyar.

(4) 1970 Ford Falcon with New South Wales registration number DF12SD (and relevant vehicle keys) and registered in the name of Abbas Daneshyar.

(5) 2021 BMW S1000R motorcycle with New South Wales registration number DRKN8 (and relevant vehicle keys) and registered in the name of Abbas Daneshyar.

(6) 2022 Trailer Park PWC boat trailer with New South Wales registration number TJ98ZH and registered in the name of Abbas Daneshyar.

(7) 2018 Ausmarine PWC13 boat trailer with New South Wales registration number TJ90TW and registered in the name of Abbas Daneshyar.

(8) 2017 Toyota Hiace with New South Wales registration number DB15VM and registered in the name of Abbas Daneshyar.

(9) 2002 Mazda RX-7 with New South Wales registration number FBT14Y (and relevant vehicle keys) and registered in the name of Abbas Daneshyar.

(10) 2018 3.35m red Yamaha PWC vessel with New South Wales registration number AJX595N (and relevant vehicle keys) and registered in the name of Abbas Daneshyar.

(11) 2022 3.35m blue Yamaha PWC vessel with New South Wales registration number ALO508N (and relevant vehicle keys) and registered in the name of Abbas Daneshyar.

(12) 2001 9.5m white Bayliner fibreglass motor cruiser vessel with New South Wales registration number AEG112N and registered in the name of Abbas Daneshyar.

(13) 1994 Nissan Pulsar LX with New South Wales registration number FBN23E (and relevant vehicle keys) and registered in the name of Abbas Daneshyar.

(14) 1 of 1 fully paid and beneficially held ordinary shares in Daneshyar Enterprise Pty Ltd A.C.N. 633 971 089 held in the name of Abbas Daneshyar.

(15) 100 of 100 fully paid and beneficially held ordinary shares in Mr-OCD Group Services Pty Ltd A.C.N. 667 615 152 held in the name of Abbas Daneshyar.

(16) 100 of 100 fully paid and beneficially held ordinary shares in I-Protection Consultancy Pty Ltd A.C.N. 667 615 581 held in the name of Abbas Daneshyar.

(17) 100 of 100 fully paid and beneficially held ordinary shares in Ample Recovery Agency Pty Ltd A.C.N. 667 615 876 held in the name of Abbas Daneshyar.

SCHEDULE TWO

All the interests in property of Daneshyar Enterprise Pty Ltd A.C.N. 633 971 089, including:

(1) The whole property described as Lot A in Deposited Plan 385769, Local Government Area Canterbury-Bankstown, Parish of Bankstown, County of Cumberland, also known as 154 Picnic Point Road, Picnic Point NSW 2213 and registered in the name of Daneshyar Enterprise Pty Ltd as sole owner.

(2) The whole property described as Lot 36 in Strata Plan 103910 at Condell Park, Local Government Area Canterbury-Bankstown, also known as 406 Marion Street, Condell Park NSW 2200 and registered in the name of Daneshyar Enterprise Pty Ltd as sole owner.

(3) The whole property described as Lot 1 of Section 14 in Deposited Plan 11234 at Punchbowl, Local Government Area Canterbury-Bankstown, Parish of Bankstown, County of Cumberland, also known as 837 Punchbowl Road, Punchbowl NSW 2196 and registered in the name of Daneshyar Enterprise Pty Ltd as sole owner.

(4) The whole property described as Lot 9 of Section 14 in Deposited Plan 11234 at Punchbowl, Local Government Area Canterbury-Bankstown, Parish of Bankstown, County of Cumberland, also known as 851 Punchbowl Road, Punchbowl NSW 2196 and registered in the name of Daneshyar Enterprise Pty Ltd as sole owner.

SCHEDULE THREE

All the interests in property of Dark Haus Enterprise Pty Ltd A.C.N. 657 968 002, including:

(1) 2015 Bentley Continental with New South Wales registration number EPZ48P (and relevant vehicle keys) and registered in the name of Dark Haus Enterprise Pty Ltd.

(2) 2019 Toyota Hiace with New South Wales registration number DD93PM and registered in the name of Dark Haus Enterprise Pty Ltd.

(3) 2020 Mercedes-Benz M-AMG with New South Wales registration number ERW87J (and relevant vehicle keys) and registered in the name of Dark Haus Enterprises Pty Ltd.

(4) 2020 Land Rover Range Rover with New South Wales registration number DGF 81U (and relevant vehicle keys) and registered in the name of Dark Haus Enterprise Pty Ltd.

SCHEDULE FOUR

(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.

Catchwords:

PROCEDURE – ex parte proceedings - proceeds of crime – orders made pursuant to ss 10A, 10B, 12, Criminal Assets Recovery Act 1990 – orders made pursuant to s 101 of the Civil Procedure Act 2005 - an order for interest – orders made pursuant to r 36.4(1)(a) of the Uniform Civil Procedure Rules 2005 - these orders are to take effect as of the date hereof

Legislation Cited:

Criminal Assets Recovery Act 1990 (NSW) s 10A

Civil Procedure Act 2005 (NSW) s 101

Uniform Civil Procedure Rules 2005 (NSW) r 1.26

Crimes Act 1900 (NSW) s 86(3)

Category:

Principal judgment

Parties:

New South Wales Crime Commission (Plaintiff)
Abbas Daneshyar (Defendant)

Representation:

Counsel:
M Batchelor
No appearance (ex parte proceedings)

Solicitors:
New South Wales Crime Commission (Plaintiff)

File Number(s):

2023/291877

EX TEMPORE JUDGMENT

1. By a Summons filed in Court today, 13 September 2023, the New South Wales Crime Commission sought various forms of relief under the Criminal Assets Recovery Act 1990 (NSW) (“the Act”) and, in one respect, the Civil Procedure Act 2005 (NSW) against Abbas Daneshyar.

2. By the prayer for relief number 1 in the Summons, the plaintiff sought an order pursuant to s 10A of the Act that 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 s 7 of the Act of the defendant, including the interest in property in the property specified in Schedules 1, 2 and 3 of the Summons.

3. I interpose to note that in support of the Summons an affidavit of Jiansong Wen of 13 September 2023 was read in which it is deposed that the Commission sought the proceedings proceed ex parte and instanter because of, inter alia, concerns as to the disposal of the assets under consideration before any restraining order can be made effective to restrain the assets in question.

4. In submissions advanced on behalf of the plaintiff, it was further advised that in fact the defendant has commenced with the disposal of some of those assets, thereby heightening the concerns expressed in the affidavit, together with the need for the matter to proceed urgently before the Court.

5. With those considerations in mind, the Court has proceeded ex parte and instanter before the Court in its duty list.

6. Turning to the Summons, there is sought, in addition to the restraining order to which I have referred, pursuant to s 10A of the Act, various other forms of relief, primarily consisting of orders under s 12(1) of the Act, an order under s 10B(2) of the Act and other orders for the purposes of ss 27, 28A, 8 and 7(3) of the Act. I note for completeness that an order is sought pursuant to s 101 of the Civil Procedure Act 2005 (NSW) for interest.

7. Two procedural orders are also sought by the plaintiff; firstly, an order that liberty be granted to the plaintiff and the defendant to apply on three days' notice and, secondly, an order that these proceedings be listed for mention before the Common Law Registrar at 9am on Monday 4 December 2023.

8. In addition to the affidavit of Mr Wen, the plaintiff has produced a statement of facts and circumstances relied on in the application for a restraining order and other forms of order pursuant to r 1.26 of the Uniform Civil Procedure Rules 2005 (NSW).

9. In reaching my decision, I have had regard to the matters deposed in the affidavit in question, together with the content of the statement of facts.

10. It is contended, correctly in my view, that the affidavit deposed by Mr Wen establishes that Mr Wen is an authorised officer for the purposes of the Act and that he suspects the defendant of having engaged in serious crime-related activity, namely, take and/or detain a person without the person's consent with the intention of holding the person to ransom, occasioning actual bodily harm contrary to s 86(3) of the Crimes Act 1900 (NSW).

11. It should be noted that in the affidavit and for the purposes of determining the relief sought in the Summons, the deponent of the affidavit gives grounds for the suspicions as I have just outlined them. The basis for those suspicions and the facts and circumstances on which the applicant relies in its application for the restraining order are set out in the r 1.26 statement and, in my view, adequately describe the basis for the suspicion. Those facts and circumstances upon which the plaintiff relies in its application for restraining order are as follows:

1. Mr Wen suspects the defendant of having engaged in serious crime-related activity, namely, the offence to which I have referred earlier in this judgment;

2. Mr Wen has been provided with and accepted a police facts statement that described the suspected serious criminal activity in which Mr Wen suspected the defendant to have engaged;

3. Mr Wen has been provided with and accepts an agreed facts on sentence in relation to the co-accused and a victim statement in relation to the victim of the alleged offence that both further describe the suspected serious criminal activity in which Mr Wen suspects the defendant to have engaged;

4. Mr Wen has ascertained that the defendant has been charged with the offence described in the aforementioned facts sheet;

5. Mr Wen has ascertained that the criminal proceedings of the defendant have been committed to the New South Wales District Court for trial; and,

6. There are reasonable grounds for Mr Wen's suspicion that the defendant has engaged in serious crime-related activity, namely, the aforementioned offence.

12. With respect to the last enumerated facts and circumstances relied upon by the Commission, I confirm my conclusion that there are reasonable grounds for Mr Wen's suspicion that the defendant has engaged in serious crime-related activity.

13. I have noted in my earlier summary of the relief sought in the Summons that a proceeds assessment order and an unexplained wealth order are sought. For the purposes of these proceedings, that is the proceedings presently before the Court, there appears to be ample basis to make those orders having regard to the facts and circumstances described in the facts sheet, the agreed facts and the victim statement to which I have referred earlier in this judgment.

14. I note, further, that there are the results of pending investigations by the Commission, as relied upon by the plaintiff, including a financial analysis of the affairs of the defendant, and that evidence obtained pursuant to any examination of the defendant, together with Tourek Ayoub and his spouse Mariam Abbas, pursuant to s 12 of the Act.

15. The plaintiff contends that the evidence obtained as a result of any statement of affairs provided by the defendant pursuant to s 12 of the Act will also be relevant as facts and circumstances for the making of a proceeds assessment order and an unexplained wealth order. All of those factors are, in my view, an appropriate foundation for the making of the proceeds assessment order and the unexplained wealth order which I propose to make as part of the relief sought by the Commissioner.

16. The other forms of relief contained within the Summons which I have summarised are, in my view, all appropriate in the circumstances of the alleged offending and the facts and circumstances as described in the affidavit of Mr Wen. I therefore propose to make the orders sought by the plaintiff in the Summons.

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Decision last updated: 28 September 2023