New South Wales Crime Commission v Mogy - [2016] NSWSC 1667

Supreme Court

New South Wales

Medium Neutral Citation: New South Wales Crime Commission v Mogy [2016] NSWSC 1667
Hearing dates: 23 November 2016
Date of orders: 23 November 2016
Decision date: 23 November 2016
Jurisdiction: Common Law
Before: Davies J
Decision:
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 Katie Elaine Bourne sworn 22 November 2016, there are reasonable grounds for the suspicions stated therein

The Court orders:

1. Pursuant to section 10A of the Criminal Assets Recovery Act 1990 (except as provided in Orders 2, 3 and 4 below) 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 section 7 of the Criminal Assets Recovery Act 1990) of Roni Mogy, including the interest in property in the property specified in Schedule One hereto ("the first restraining order").

2. Pursuant to section 12(1) of the Criminal Assets Recovery Act 1990 the restraining order be varied to allow Roni Mogy or any other person ("the vendor") to deal with the interest of Roni Mogy in the property specified in Item 2 of Schedule One hereto ("the Cowan Road property") for the purpose either of completing the sale of the Cowan Road property or of selling the Cowan Road property at a price agreed in writing by the Plaintiff ("the sale of the Cowan property").

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

(a)   the amount necessary to discharge any registered mortgage secured over the Cowan Road property;

(b)   reasonable legal and conveyancing costs on the sale of the Cowan Road property;

(c)   any reasonable agent's commission on the sale of the Cowan Road property;

(d)   any fee payable to a registered valuer for a valuation of the Cowan Road 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 Cowan Road 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 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 section 7 of the Criminal Assets Recovery Act 1990) of Uri Mogilevsky, including the interest in property in the property specified in Schedule Two hereto.

6. 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) 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 Halina Gilla Sher, including the interest in property in the property specified in Schedule Three and Schedule Four hereto.

7. Pursuant to section 12(1)(b) of the Criminal Assets Recovery Act 1990 the following persons shall be examined on oath before a Registrar of the Court concerning their affairs, including the nature and location of any property in which any of them has an interest:

(a)   Roni Mogy;
(b)   Uri Mogilevsky; and
(c)   Halina Gilla Sher.

8.   Leave is granted to the Plaintiff to obtain from the Registry dates for the examinations ordered in Order 7 above.

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

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

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

12.   Liberty is granted to the Plaintiff, Roni Mogy, Uri Mogilevksy and Halina Gilla Sher to apply on three (3) days' notice.

13.   The costs of obtaining these orders shall be costs in the cause.

14. 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.

15.   The balance of the Summons be listed before the Common Law Registrar on 27 February 2017.

SCHEDULE ONE

1.   The whole of the property described as Lot A in Deposited Plan 443103, Local Government Area Waverly, Parish of Alexandria, County Cumberland, also known as 4 Bondi Road, Bondi Junction, New South Wales and registered in the name of Roni Mogy.

2.   The whole of the property described as Lot 2 in Deposited Plan 15689, at St Ives, Local Government Area Ku-Ring-Gai, Parish of Gordon, County of Cumberland, also known as 37 Cowan Road, St Ives, New South Wales and registered in the name of Aitan Benjamin Mogy and Roni Mogy as joint tenants.

SCHEDULE TWO

1.   The whole of the property described as Lot 10 in Deposited Plan 258378 at Moree, Local Government Area Moree Plains, Parish of Moree, County of Courallie, also known as 86 Jones Avenue, Moree, New South Wales and registered in the name of Uri Mogilevsky.

2.   The whole of the property described as Lot 10 in Deposited Plan 15689 at St Ives, Local Government Area Ku-Ring-Gai, Parish of Gordon, County of Cumberland, also known as 80 Killeaton Street, St Ives, New South Wales and registered in the name of Uri David Mogilevsky.

SCHEDULE THREE

10 fully paid ordinary shares in U & G Properties Pty Ltd held by Halina Gilla Sher.

SCHEDULE FOUR

The following interests in property of U & G Properties Pty Ltd:

1.   The whole of the property described as Lot 51 in Deposited Plan 261979 at Moree, Local Government Area Moree Plains, Parish of Moree, County of Courallie, also known as 94 Jones Avenue, Moree, New South Wales and registered in the name of U & G Properties Pty Ltd.

2.   The whole of the property described as Lot B in Deposited Plan 443103 at Bondi, Local Government Area Waverley, Parish of Alexandria, County of Cumberland also known as 6 Bondi Road, Bondi Junction, New South Wales and registered in the name of U & G Properties Pty Ltd.

3.   The whole of the property described as Lot 5 in Deposited Plan 840155 at Bondi Junction, Local Government Area Waverley, Parish of Alexandria, County of Cumberland, also known as 2 Bondi Road, Bondi Junction, New South Wales and registered in the name of U & G Properties Pty Ltd.

SCHEDULE FIVE

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: CRIMINAL LAW – proceeds of crime – restraining order
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Assets Recovery Act 1990 (NSW)
Category: Procedural and other rulings
Parties: New South Wales Crime Commission (Plaintiff)
Roni Mogy (First Defendant)
Uri Mogilevsky (Second Defendant)
Halina Gilla Sher (Third Defendant)
Representation:
Counsel:
R Katrib (Plaintiff)
Ex parte
Solicitors:
NSW Crime Commission (Plaintiff)
Ex parte

File Number(s): 2016/350773

Judgment

This is an application for orders under the Criminal Assets Recovery Act 1990 (NSW). Section 10A enables an application to be made ex-parte for a restraining order which remains in force whilst, as here, there is an application pending for an unexplained wealth order under s 28A of the Act.
The application is supported by an affidavit of Katie Elaine Bourne sworn 22 November 2016. In that affidavit Ms Bourne, who is an authorised officer as defined in s 4(1) of the Act, deposes to her suspicion that the three Defendants have engaged in serious crime related activity or activities.
In relation to the First Defendant, Ronnie Mogy, that serious crime related activity is knowingly dealing with the proceeds of crime contrary to s 193B(1) of the Crimes Act 1900 an offence involving money laundering. In relation to the second defendant, Uri Mogilevsky, the serious crime related activity is knowingly deal with the proceeds of crime contrary to s 193B(1) of the Crimes Act. In relation to the third defendant, Halina Gilla Sher, the serious crime related activity is supplying not less than a large commercial quantity of a prohibited drug being methamphetamine and also knowingly dealing with the proceeds of crime contrary to section 193B(1) of the Crimes Act 1900 (NSW).
I note that Miss Bourne's suspicion is based on reading the factual material provided to her by the New South Wales Police. She sought information from Detective Senior Constable Charbel Azzi as to the source of the facts contained in the facts sheet, including whether he was the officer who drafted the facts sheet, whether he knew that the contents of the facts sheet were true and if they were prepared based on information obtained by the police as a result of the investigation described in the facts sheet. Detective Senior Constable Azzi answered all of those questions in the affirmative.
It is not necessary to detail all of the information contained in the facts sheet. It is sufficient to note that the material justifies the reasonable suspicion that there has been a knowing dealing with the proceeds of crime by all three Defendants and by the supply of a large commercial quantity of methamphetamine found in a motor vehicle being driven by the third defendant. I note that each of the Defendants has been charged with the offences to which I have made reference.
Section 10A(5) of the Act requires the Court to make a restraining order if the Court is satisfied that there are reasonable grounds for the authorised officer's suspicion. As I have indicated, there are such reasonable grounds.
Section 10A(4) enables notice to be given to a defendant before an order is made, if the Court thinks fit. In the light of the evidence contained in Ms Bourne's affidavit concerning the speed with which persons are able to alienate property in their possession, and noting the nature of the offences charged, I do not consider that the Defendants should be given notice of this application before the order is made. The Defendants in any event have the rights of review set out in section 10C of the Act.
I note the usual undertaking is given by the solicitor for the plaintiff. I make orders in terms of paragraphs 1 to 7, 9 to 11 and 13 and 14 of the form of order provided to me. I grant the leave and liberty contained in paragraphs 8 and 12. The balance of the summons is stood over before the Common Law Registrar on 27 February 2017.

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Decision last updated: 01 December 2016

Medium Neutral Citation:	New South Wales Crime Commission v Mogy [2016] NSWSC 1667
Hearing dates:	23 November 2016
Date of orders:	23 November 2016
Decision date:	23 November 2016
Jurisdiction:	Common Law
Before:	Davies J
Decision:	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 Katie Elaine Bourne sworn 22 November 2016, there are reasonable grounds for the suspicions stated therein The Court orders: 1. Pursuant to section 10A of the Criminal Assets Recovery Act 1990 (except as provided in Orders 2, 3 and 4 below) 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 section 7 of the Criminal Assets Recovery Act 1990) of Roni Mogy, including the interest in property in the property specified in Schedule One hereto ("the first restraining order"). 2. Pursuant to section 12(1) of the Criminal Assets Recovery Act 1990 the restraining order be varied to allow Roni Mogy or any other person ("the vendor") to deal with the interest of Roni Mogy in the property specified in Item 2 of Schedule One hereto ("the Cowan Road property") for the purpose either of completing the sale of the Cowan Road property or of selling the Cowan Road property at a price agreed in writing by the Plaintiff ("the sale of the Cowan property"). 3. Pursuant to section 12(1) of the Criminal Assets Recovery Act 1990 the proceeds received from the sale of the Cowan Road property may be applied to pay the following: (a) the amount necessary to discharge any registered mortgage secured over the Cowan Road property; (b) reasonable legal and conveyancing costs on the sale of the Cowan Road property; (c) any reasonable agent's commission on the sale of the Cowan Road property; (d) any fee payable to a registered valuer for a valuation of the Cowan Road 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 Cowan Road 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 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 section 7 of the Criminal Assets Recovery Act 1990) of Uri Mogilevsky, including the interest in property in the property specified in Schedule Two hereto. 6. 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) 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 Halina Gilla Sher, including the interest in property in the property specified in Schedule Three and Schedule Four hereto. 7. Pursuant to section 12(1)(b) of the Criminal Assets Recovery Act 1990 the following persons shall be examined on oath before a Registrar of the Court concerning their affairs, including the nature and location of any property in which any of them has an interest: (a) Roni Mogy; (b) Uri Mogilevsky; and (c) Halina Gilla Sher. 8. Leave is granted to the Plaintiff to obtain from the Registry dates for the examinations ordered in Order 7 above. 9. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Roni Mogy shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Roni Mogy, a statement verified by oath of Roni Mogy setting out the particulars sought in Schedule Five hereto. 10. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Uri Mogilevsky shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Uri Mogilevsky, a statement verified by oath of Uri Mogilevsky setting out the particulars sought in Schedule Five hereto. 11. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Halina Gilla Sher shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Halina Gilla Sher, a statement verified by oath of Halina Gilla Sher setting out the particulars sought in Schedule Five hereto. 12. Liberty is granted to the Plaintiff, Roni Mogy, Uri Mogilevksy and Halina Gilla Sher to apply on three (3) days' notice. 13. The costs of obtaining these orders shall be costs in the cause. 14. 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. 15. The balance of the Summons be listed before the Common Law Registrar on 27 February 2017. SCHEDULE ONE 1. The whole of the property described as Lot A in Deposited Plan 443103, Local Government Area Waverly, Parish of Alexandria, County Cumberland, also known as 4 Bondi Road, Bondi Junction, New South Wales and registered in the name of Roni Mogy. 2. The whole of the property described as Lot 2 in Deposited Plan 15689, at St Ives, Local Government Area Ku-Ring-Gai, Parish of Gordon, County of Cumberland, also known as 37 Cowan Road, St Ives, New South Wales and registered in the name of Aitan Benjamin Mogy and Roni Mogy as joint tenants. SCHEDULE TWO 1. The whole of the property described as Lot 10 in Deposited Plan 258378 at Moree, Local Government Area Moree Plains, Parish of Moree, County of Courallie, also known as 86 Jones Avenue, Moree, New South Wales and registered in the name of Uri Mogilevsky. 2. The whole of the property described as Lot 10 in Deposited Plan 15689 at St Ives, Local Government Area Ku-Ring-Gai, Parish of Gordon, County of Cumberland, also known as 80 Killeaton Street, St Ives, New South Wales and registered in the name of Uri David Mogilevsky. SCHEDULE THREE 10 fully paid ordinary shares in U & G Properties Pty Ltd held by Halina Gilla Sher. SCHEDULE FOUR The following interests in property of U & G Properties Pty Ltd: 1. The whole of the property described as Lot 51 in Deposited Plan 261979 at Moree, Local Government Area Moree Plains, Parish of Moree, County of Courallie, also known as 94 Jones Avenue, Moree, New South Wales and registered in the name of U & G Properties Pty Ltd. 2. The whole of the property described as Lot B in Deposited Plan 443103 at Bondi, Local Government Area Waverley, Parish of Alexandria, County of Cumberland also known as 6 Bondi Road, Bondi Junction, New South Wales and registered in the name of U & G Properties Pty Ltd. 3. The whole of the property described as Lot 5 in Deposited Plan 840155 at Bondi Junction, Local Government Area Waverley, Parish of Alexandria, County of Cumberland, also known as 2 Bondi Road, Bondi Junction, New South Wales and registered in the name of U & G Properties Pty Ltd. SCHEDULE FIVE 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:	CRIMINAL LAW – proceeds of crime – restraining order
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Assets Recovery Act 1990 (NSW)
Category:	Procedural and other rulings
Parties:	New South Wales Crime Commission (Plaintiff) Roni Mogy (First Defendant) Uri Mogilevsky (Second Defendant) Halina Gilla Sher (Third Defendant)
Representation:	Counsel: R Katrib (Plaintiff) Ex parte Solicitors: NSW Crime Commission (Plaintiff) Ex parte
File Number(s):	2016/350773