New South Wales Crime Commission v Pettersen

[2023] NSWSC 406

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Pettersen [2023] NSWSC 406

Hearing dates:

29 March 2023

Date of orders:

29 March 2023

Decision date:

29 March 2023

Jurisdiction:

Common Law

Before:

Walton J

Decision:

(1) 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 Neil Andrew Pettersen (also known as Neil Andrew Petterson), including the interest in property in the property specified in Schedule One, Schedule Two, Schedule Three and Schedule Four hereto.

(2) Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Neil Andrew Pettersen (also known as Neil Andrew Petterson) 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 section 12(1)(b1) of the Criminal Assets Recovery Act 1990 Stacey Jolly shall be examined on oath before a Registrar of the Court concerning the affairs of Stacey Jolly, including the nature and location of any property in which Stacey Jolly or Neil Andrew Pettersen (also known as Neil Andrew Petterson) has an interest.

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

(5) Pursuant to section 10B(2) of the Criminal Assets Recovery Act 1990 the New South Wales Trustee and Guardian shall take control of all the interest of Neil Andrew Pettersen (also known as Neil Andrew Petterson) in the property specified in Schedule Two, Schedule Three and Schedule Four hereto.

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

(7) Liberty is granted to the Plaintiff and Neil Andrew Pettersen (also known as Neil Andrew Petterson) to apply on three (3) days’ notice.

(8) The costs of obtaining these orders shall be costs in the cause

(9) These proceedings be listed for mention before the Common Law Registrar at 9:00am on 10 July 2023.

(10) 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) 2009 Holden Ute with New South Wales registration number D0D0SH and registered in the name of Neil Andrew Pettersen.

(2) 100 of 100 fully paid and beneficially held ordinary shews in Exclusive Services Pty Ltd A.C.N. 647 126 234 and held in the name of Neil Andrew Pettersen.

SCHEDULE TWO

2017 Holden Commodore with expired New South Wales registration number EQO31Z and previously registered in the name of West Three Pty Ltd, seized by the NSW Police Force on 17 November 2022 and currently in the possession of the NSW Police Force.

SCHEDULE THREE

(1) Cash in the approximate amount of $26,750 seized by members of the NSW Police Force on 17 November 2022 during the execution of a search warrant at 4/2 Burt Street, Rozelle NSW 2039, being the residential address of Neil Andrew Pettersen (also known as Neil Andrew Petterson).

(2) Cash in the approximate amount of $464,950 seized by members of the NSW Police Force on 17 November 2022 during the execution of a search warrant at 3/1 Baker Street, Enfield NSW 2136.

SCHEDULE FOUR

Miscellaneous jewellery and luxury watches seized by members of the NSW Police Force on 17 November 2022 during the execution of a search warrant at 4/2 Burt Street, Rozelle NSW 2039, being the residential address of Neil Andrew Pettersen (also known as Neil Andrew Petterson), including:

a)   Omega Constellation watch;

b)   2x Tag Heuer Link watch;

c)   2x 18 carat white gold bracelet with diamonds

d)   Breitling watch

e)   Tiffany and Co diamond ring

f)   Tag Heuer Senna watch

g)   Tag Heuer Carrera watch

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 PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime – ex parte – orders made

Legislation Cited:

Criminal Assets Recovery Act 1990 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW), s 24(2)

Uniform Civil Procedure Rules 2005 (NSW), r 1.26

Category:

Principal judgment

Parties:

New South Wales Crime Commission (Plaintiff)
Neil Andrew Pettersen (Defendant)

Representation:

Counsel:
S Askew (Plaintiff)

Solicitors:
New South Wales Crimes Commission (Plaintiff)

File Number(s):

2023/101996

JUDGMENT

1. By a Summons filed in court today, the New South Wales Crime Commission sought various classes of order available under the Criminal Assets Recovery Act 1990 (NSW). However, in the application in the court's duty list today, the Commission confined the relief sought to an application under s 10A of that Act for a restraining order and some related orders which are set out in the Short Minutes of Order provided to the Court.

2. I note at the outset that the Commission has provided a statement of facts and circumstances which were relied upon in respect to the application for the restraining order, pursuant to r 1.26 of the Uniform Civil Procedure Rules 2005 (NSW) and read the affidavit of Jiansong Wen of 29 March 2023 which will be taken as read in support of the application pressed today.

3. By that affidavit, Mr Wen deposed that, in the absence of proceeding in instanter and ex parte, that there may be the opportunity to dispose of assets before the application is made ((see paras 13 and 14 of the affidavit). That, in my view, is sufficient basis for the Court to proceed as it has for the present application to proceed ex parte.

4. The facts and circumstances which were relied upon by the Commissioner are summarised within the document produced pursuant to r 1.26 of the Uniform Civil Procedure Rules 2005 (NSW).

5. Those facts and circumstances for the purpose of the present application include:

1. That Mr Wen suspects Mr Pettersen of having engaged in a serious crime related activity, namely, the offences which are described in the para 3 of the r 1.26 document such as drug related offences, including manufacture a prohibited drug (methylamphetamine) not less than a large commercial quantity contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985, and supply of prohibited drug, (amphetamine), not less than a commercial quantity contrary to s 25(2) of that Act;

2. Mr Wen was provided with and accepted a police facts sheet that describes the suspected serious criminal activity which Mr Wen suspects Mr Pettersen to have engaged;

3. Mr Wen has ascertained that Mr Pettersen has been charged with the offences described in the facts sheet; and

4. There are reasonable grounds for Mr Wen’s suspicion that Mr Pettersen has engaged in serious criminal related activity, namely, the offences to which I have referred.

6. The facts and circumstances relied upon by the Commissioner in respect of the restraining orders are thereby stated.

7. Those circumstances having been deposed in the affidavit of Mr Wen, there does appear to be a proper basis, in my view, to make the orders proposed to be made in the present matter.

8. The NSW Crime Commission gave the usual undertaking as to damages, which is contained in a note in the form of the order proposed.

9. The Court makes the order proposed to be made with respect to Mr Pettersen under ss 10A, 12(1)(b)(i), and 10B(2), and 12(1)(c1) of the Act, with respect to property described in the five schedules appearing in the order which have, of course, a counterpart in the Summons.

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Decision last updated: 19 April 2023