New South Wales Crime Commission v Driftgold
[2014] NSWSC 1309
•24 September 2014
Supreme Court
New South Wales
Medium Neutral Citation: New South Wales Crime Commission v Driftgold [2014] NSWSC 1309 Hearing dates: 22 September 2014 Decision date: 24 September 2014 Jurisdiction: Common Law Before: Schmidt J Decision: Adjournment of hearing refused.
Variation to consent orders made.
Catchwords: PROCEDURE - application by plaintiff under section 12 of the Criminal Assets Recovery Act 1990 (NSW) for variation of orders previously made by Supreme Court - order seeking to appoint receiver to property - application by defendant for adjournment of hearing - adjournment application refused - consent variation approved Legislation Cited: Criminal Assets Recovery Act 1990 (NSW) Category: Procedural and other rulings Parties: Commonwealth Bank of Australia trading as Bankwest ABN 48 123 123 124 (Applicant on the Motion)
New South Wales Crime Commission (Plaintiff)
Driftgold Pty Ltd (Defendant)Representation: Solicitors:
Herbert Smith Freehills (Applicant on the Motion)
New South Wales Crime Commission (Plaintiff)
File Number(s): 2009/296487 Publication restriction: None
Judgment
On 8 October 2009 James J made orders under s 10 of the Criminal Assets Recovery Act1990 (NSW) against the defendant company, Driftgold Pty Ltd, being satisfied on the basis of an affidavit sworn by Mr Spark, an officer of the New South Wales Crime Commission, that he had reasonable grounds for a suspicion that a Mr Anthony John Perish had engaged in serious crime related activity and that Driftgold's interests in identified property was serious crime deprived property.
The orders prohibited persons other than any registered mortgagee from dealing with property the subject of the orders, located at Millmerran Queensland.
By notice of motion filed on 25 August 2014, the Commonwealth Bank of Australia sought a variation to the orders made, permitting the registered mortgagee, the Commonwealth Bank of Australia, to appoint a receiver to the property, in terms agreed with the Bank.
Driftgold sought an adjournment of the hearing, in order that it might seek advice as to its rights against the Bank. The application was supported by an affidavit sworn by its solicitor, Mr Bracks, who deposed that he had been instructed that Driftgold had been enticed and pressured into accepting the loan; that facts and figures supplied by Bank officers had been inaccurate, misleading and known to have caused it substantial losses; that it had reached an agreement with the Bank in relation to the dispute over the loan and that by issuing the motion, the Bank had breached the agreement.
I refused the adjournment in circumstances where Driftgold had never challenged the order made in these proceedings in 2009; that it has not brought any proceedings to pursue the matters it has given Mr Bracks instructions about; and where it emerged that there was no dispute that in May 2014, the Bank had advised Mr Brundell, who gave Mr Bracks instructions on Driftgold's behalf, that repayments of the loan not having been made for some two years and a proposed sale of the property not having proceeded, that it reserved its right to pursue its rights under its mortgage, if no sale contract was in place by 30 June 2014.
The adjournment having been refused, Driftgold did not oppose the making of the consent variation to the orders, permitting the appointment of a receiver to the property and accordingly, orders were made in the terms agreed.
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Decision last updated: 26 September 2014
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