New South Wales Crime Commission v Milad El Araiji
[2014] NSWSC 1372
•09 October 2014
Supreme Court
New South Wales
Medium Neutral Citation: New South Wales Crime Commission v Milad El Araiji [2014] NSWSC 1372 Hearing dates: 24 September 2014 Decision date: 09 October 2014 Jurisdiction: Common Law Before: Schmidt J Decision: (1) Pursuant to section 14 of the Civil Procedure Act 2005, the requirement for service on the defendant, Milad El Araiji (also known as Tony Pasterio) of any documents filed by the plaintiff in these proceedings and the giving of notice of the hearing, to be dispensed with.
(2) Pursuant to section 10B(4) of the Criminal Assets Recovery Act 1990, the interest in the property of the Defendant in the property specified in the Schedule hereto be applied in partial satisfaction of the proceeds assessment order
Schedule
The net proceeds of sale of the property described as Lot XX in Strata Plan XXXXX at Redfern, Local Government Area Sydney, also known as Unit XX, X XXXXX XX Street, Redfern, New South Wales, currently held by the New South Wales Trustee and Guardian pursuant to an order made on 26 June 2008 in these proceedings.
Catchwords: CRIMINAL LAW - application for orders under s 10B of the Criminal Assets Recovery Act 1990 (NSW) - orders made Legislation Cited: Aviation Transport Security Regulation 2005 (Cth)
Crimes Act 1990 (NSW)
Criminal Assets Recovery Act 1990 (NSW)
Criminal Assets Recovery Regulation 2001 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Category: Procedural and other rulings Parties: New South Wales Crime Commission (Plaintiff)
Milad El Araiji (Defendant)Representation: Counsel:
Mr I Temby QC (Plaintiff)
Solicitors:
New South Wales Crime Commission (Plaintiff)
File Number(s): 2008/285524 Publication restriction: None
Judgment
By motion filed on 24 September 2014 the New South Wales Crime Commission sought orders under s 10B of the Criminal Assets Recovery Act 1990 (NSW), as well as orders dispensing with service.
The proceedings were commenced by summons in 2008. On 26 June 2008 orders were made under s 10 of the Act in relation to specified assets belonging to Mr El Araiji. In September 2011, the Court made orders dispensing with service of the summons.
The Crime Commission's case is that the defendant was engaged in serious crime related activity, involving an offence under s 178BB of the Crimes Act 1900 (NSW), of publishing false and misleading statements in making a loan application to the Commonwealth Bank.
The application was supported by affidavits sworn on 22 September by Mr Spark, the Commission's Director (Financial Investigations) and an authorised officer under the Act; on 16 September by Mr Manassa, formerly a joint director of the Mann Group; on 10 September by Mr Borg, the Commonwealth Bank of Australia's Quality Assurance & Liaison Manager; and on 18 September by Detective Sergeant Fairclough. The Crime Commission also relied on a statement of facts and circumstances of 19 September 2014 which was filed in accordance with r 1.26 and Sch 10 of the Uniform Civil Procedure Rules 2005 (NSW).
Mr Spark deposed that since 28 April 2011, the NSW Trustee and Guardian has held $161,767.70 of the proceeds of the sale, of one of the properties the subject of the 2008 orders. Mr Spark also deposed that his enquiries had established that in 2004, Mr El Araiji was charged with two sets of fraud offences and that two warrants for his arrest were issued. On arrest he was discovered to be an unlawful non-citizen of Australia. He was granted bail and his migration status required that he be held at the Villawood Detention Centre. He left Australia pursuant to a supervised departure under the Aviation Transport Security Regulation 2005 (Cth) to Lebanon in August 2004 and has not returned since. His whereabouts are now unknown.
On 18 September 2014, the Commission made a determination under cl 5(2) of the Criminal Assets Recovery Regulation 2001 (NSW) that reasonable efforts to serve documents it had filed in the proceedings on Mr El Araiji would be unsuccessful.
Mr Fairclough deposed to the circumstances of Mr El Araiji's arrest; admissions which he then made and his departure from Australia. Further arrest warrants remain current, he also having been charged with offences under s 300(2) of the Crimes Act for using false instruments.
Mr Borg annexed documents to his affidavit on which the case against Mr El Araiji rested. They showed that the Bank made loan drawings in his favour in December 2003 of some $490,000; that the loan related to the property at Potts Point; that he had signed an application for the loan in November 2003, supported by a letter which stated that he was employed for 3 years, 6 months by the Mann Group, earning $98,000 per annum, together with fortnightly pay slips showing earnings of some $3,746.
Mr Manassa deposed that the contents of the letter from the Mann Group were incorrect, even though written on its letterhead and purportedly signed by one of its staff. Mr El Araiji had only done about six months work for the company and was not earning the sums claimed in the letter or pay slips.
On the evidence I am satisfied that the Crime Commission's case that the orders sought under the Criminal Assets Recovery Act must be made. Section 27 of the Act provides that the Commission may apply to the Court for a proceeds assessment order requiring a person to pay to the Treasurer an amount assessed by the Court as the value of the proceeds derived by the person from an illegal activity that took place not more than six years before the making of the application. In the circumstances outlined, that requirement has been met.
The Court must make a proceeds assessment order if it finds it to be more probable than not that the person against whom the order is sought was, at any time, not more than six years before the making of the application for the order, engaged in a serious crime related activity involving an offence punishable by imprisonment for five years or more. That has also been established on the evidence relied on, which establishes that the statements Mr El Araiji made in his loan application were knowingly false and made in order to obtain a loan which the Bank would not have made, but for those false statements.
It is evident that Mr El Araiji obtained $490,000 from the Bank as the result of his illegal activity. As the consequence of orders made in these proceedings, his Potts Point property has been sold and the Trustee holds the balance of the proceeds of the sale. The evidence well establishes that Mr El Araiji, whose whereabouts since he left Australia for Lebanon are unknown, is unlikely to return to Australia willingly, given the charges which he faces and the outstanding warrants for his arrest.
In all of those circumstances the orders sought must be made. That it is also appropriate to make the order sought dispensing with service of the present application and supporting affidavits relied on, was also well made out on the evidence.
Orders
For all of those reasons I order:
(1) Pursuant to section 14 of the Civil Procedure Act 2005, the requirement for service on the defendant, Milad El Araiji (also known as Tony Pasterio) of any documents filed by the plaintiff in these proceedings and the giving of notice of the hearing, to be dispensed with.
(2) Pursuant to section 10B(4) of the Criminal Assets Recovery Act 1990, the interest in the property of the Defendant in the property specified in the Schedule hereto be applied in partial satisfaction of the proceeds assessment order
Schedule
The net proceeds of sale of the property described as Lot XX in Strata Plan XXXXX at Redfern, Local Government Area Sydney, also known as Unit XX, X XXXXX X Street, Redfern, New South Wales, currently held by the New South Wales Trustee and Guardian pursuant to an order made on 26 June 2008 in these proceedings.
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Decision last updated: 09 October 2014
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