New South Wales Crime Commission v Karim
[2015] NSWSC 1873
•09 December 2015
Supreme Court
New South Wales
Medium Neutral Citation: New South Wales Crime Commission v Karim [2015] NSWSC 1873 Hearing dates: In Chambers Date of orders: 09 December 2015 Decision date: 09 December 2015 Jurisdiction: Common Law Before: Schmidt J Decision: Orders made in terms sought.
Catchwords: CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made Legislation Cited: Crimes Act 1900 (NSW)
Criminal Assets Recovery Act 1990 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Category: Procedural and other rulings Parties: New South Wales Crime Commission (Plaintiff)
Rose Abdul Karim (Defendant)Representation: Solicitors:
New South Wales Crime Commission (Plaintiff)
File Number(s): 2015/361853 Publication restriction: None
Judgment
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By summons which I grant leave to file today, the New South Wales Crime Commission applied ex parte, seeking restraining orders under s 10A of the Criminal Assets Recovery Act1990 (NSW) in relation to the interest in certain property of the defendant, Rose Abdul Karim. Other orders under s 12(1) and s 28A of the Act were also sought, as well as other consequential orders.
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The application was supported by an affidavit sworn on 4 December 2015 by Jonathan Lee Spark, the Commission’s Director (Financial Investigations) and an authorised officer under the Act, as well as by a statement of facts and circumstances provided in accordance with Rule 1.26 of the Uniform Civil Procedure Rules 2005 (NSW).
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For the reasons which follow, I am satisfied that the orders sought should be made.
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The property sought to be restrained is identified in a schedule to the summons as real property located at Auburn, registered in Ms Karim’s name.
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Mr Spark deposed that he suspected that Ms Karim had engaged in a serious crime related activity within the definition of a “serious criminal offence” in s 6 of the Act, namely, obtain financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act1900 (NSW), by obtaining a loan from the ANZ Bank, having made false statements and provided false documents in support of the loan application.
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Mr Spark provided a detailed explanation of the basis upon which he came to hold this suspicion. It rested on a consideration of documents produced to the Commission by various entities under notices given under s 29 of the Act. The documents produced included:
the ANZ file relating to the loan application for Ms Karim's purchase of the Auburn property, which included documents stating her yearly gross income and claiming that she was to receive an inheritance of approximately $280,000 which would be used to purchase the property, as well as supporting documents stating her employment, salary superannuation and taxable income, as well as Bank and legal documents, contractual documents in relation to the purchase of the property and receipts for cheques provided by various banks.
Email information from Colonial showing that Ms Karim was not recorded as having a superannuation account with it, as he had stated in her application;
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Mr Spark had also had regard to Information provided by the Australian Tax Office which showed that she had not been employed or earned the income which she had stated in her application. He had also considered information provided by Centrelink which disclosed that Ms Karim had been in receipt of carer payments at relevant times.
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It was on the basis of this information that Mr Sparks came to suspect that the advice she had provided for the purpose of the loan application to the ANZ was false.
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Mr Spark deposed to his experience that in the absence of a restraining order, it is possible for people to enter into unregistered mortgages in relation to real estate very quickly in order to defeat the operation of the Act. He also deposed to his view that, given the serious fraudulent nature of the criminal activity in which Mr Karim is apparently involved, that she should not be given notice of this application. That is a course available under the Act, although s 10A(4) permits a different course to be taken, if the Court thinks fit.
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Section 10A(5) requires the making of the orders sought under the Act, if the Court considers that there are reasonable grounds for the suspicions to which Mr Spark has deposed.
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I am satisfied that the material which is relied on well establishes that there are reasonable grounds for the suspicions to which Mr Spark has deposed and that the requirements of s 10A(5) of the Act have been addressed. In that situation, the Act requires that the orders sought in relation to the property in question be made. In the circumstances, I concluded that it was also appropriate to make the other orders sought.
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On the evidence, I am also satisfied that the Commission ought not to be required to give notice of this application and that it should be dealt with ex parte. In coming to that view, I had regard to the provisions of s 10C of the Act, which permits an affected person to apply to have a restraining order set aside, as well as the liberty granted in the order to the parties to apply to the Court on three days’ notice.
Orders
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I accordingly make orders in the terms sought, as well as ordering that the Commission serve a copy of this judgment on Ms Karim. Those orders are:
“Upon the Plaintiff giving the usual undertaking as to damages (the giving of which by its solicitor is noted) and
Considering that, having had regard to the matters contained in the affidavit of Jonathan Lee Spark sworn 4 December 2015, there are reasonable grounds for the suspicions stated therein
The Court orders:
1. Pursuant to section 10A of the Criminal Assets Recovery Act 1990, no person is to dispose of, or attempt to dispose of, or otherwise deal with or attempt otherwise to deal with the interest in property (within the meaning of “interest in property” as defined in section 7 of the Criminal Assets Recovery Act 1990) of Rose Abdul Karim, in the property specified in Schedule One hereto.
2. Pursuant to subparagraph 12 (1) (b) (i) of the Criminal Assets Recovery Act 1990 Rose Abdul Karim 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.
3. Leave is granted to the Plaintiff to obtain from the Registry dates for the examination ordered in Order 2 above.
4. Pursuant to paragraph 12 (1) (c1) of the Criminal Assets Recovery Act 1990 Rose Abdul Karim shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Rose Abdul Karim, a statement verified by oath or affirmation of Rose Abdul Karim setting out the particulars sought in Schedule Two hereto.
5. Liberty is granted to the Plaintiff and Rose Abdul Karim to apply on three (3) days’ notice.
6. The costs of obtaining these orders shall be costs in the cause.
7. 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
The whole of the property described as Lot XXX in Community Plan DPXXXXX X at XXXXX XX XXXX, Local Government Area, Auburn, Parish of Liberty Plains, County of Cumberland, also known as X XXXXX Street, XXXXX X New South Wales 2144 and registered in the name of Rose Abdul Karim.
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 date or approximate date of acquisition of the interest; and
(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 whom or to which the liability is owed.”
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Decision last updated: 01 February 2016
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