New South Wales Crime Commission v Tindle
[2014] NSWSC 879
•30 June 2014
Supreme Court
New South Wales
Medium Neutral Citation: New South Wales Crime Commission v Tindle [2014] NSWSC 879 Hearing dates: 30 June 2014 Decision date: 30 June 2014 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 Jonathan Lee Spark sworn 27 June 2014, 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 (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 Edward Allan Tindle, including the interest in property in the property specified in Schedule One hereto.
2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Edward Allan Tindle 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 Karen Durkin be examined on oath before a Registrar of the Court concerning the affairs of Karen Durkin or Edward Allen Tindle, including the nature and location of any property in which Karen Durkin or Edward Allen Tindle has an interest.
4. Leave is granted to the Plaintiff to obtain from the Registry dates for the examinations ordered in Orders 2 and 3 above.
5. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Edward Allan Tindle shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Edward Allan Tindle, a statement verified by oath of Edward Allan Tindle setting out the particulars sought in Schedule Two hereto.
6. Liberty is granted to the Plaintiff, Edward Allan Tindle and Karen Durkin to apply on three (3) days' notice.
7. The costs of obtaining these orders shall be costs in the cause.
8. 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. The whole of the property described as Lot 1 in Deposited Plan 1034705 at Jindera, Parish of Jindera, County of Goulbum also known as 164 Drumwood Road, Jindera, NSW 2642 and registered in the name of Edward Allan Tindle.
2. The whole of the property described as Lot 1 in Deposited Plan 1134105 at Jindera, Parish of Jindera, County of Goulbourn also known as Lot 1, Drumwood Road, Jindera, NSW and registered in the name of Edward Allan Tindle.
3. Funds in Bendigo and Adelaide Bank account 143562866 held in the names of Edward Allan Tindle and Karen Durkin.
4. Funds in Bendigo and Adelaide Bank account 136322393 held in the names of Edward Allan Tindle and Karen Durkin.
5. Funds in Bendigo and Adelaide Bank account 5668413/2503 held in the name of Edward Allan Tindle.
6. Funds in Australia and New Zealand Bank account 01 2505 9868-93481 held in the names of Edward Allan Tindle and Karen Durkin.
7. Funds in Australia and New Zealand Bank account 01 2505 9051-81475 held in the name of Edward Allan Tindle.
8. Funds held in St George Bank account 410 264 412 held in the name of Edward Allan Tindle.
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 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.
3. Orders to be entered forthwith.
Catchwords: CRIMINAL LAW - proceeds of crime - restraining orders - unexplained wealth order Legislation Cited: Criminal Assets Recovery Act 1990 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Category: Interlocutory applications Parties: New South Wales Crime Commission (Plaintiff)
Edward Allan Tindle (Defendant)Representation: Counsel:
E Goh (Plaintiff)
No appearance (Defendant)
Solicitors:
New South Wales Crime Commission (Plaintiff)
No appearance (Defendants)
File Number(s): 2014/193401
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 there is an application pending for an unexplained wealth order.
The application is supported by an affidavit of Jonathan Lee Spark sworn 27 June 2014. In that affidavit, Mr Spark deposes to his suspicion that the defendant has engaged in a serious crime related activity, namely, the supply of prohibited drugs being cannabis contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. That is a serious criminal offence as defined in s 6(2)(b) of the Criminal Assets Recovery Act.
The grounds on which Mr Spark holds his suspicion are set out in paragraph four of his affidavit. Mr Spark deposes to having read a statement of facts prepared by Detective Senior Constable Hubert Schwarz of the New South Wales police force. Mr Spark forwarded an email to Senior Constable Schwarz asking him if he drafted the facts sheet, if to the best of his knowledge and belief the facts were true, and if the facts sheets was prepared based on information obtained by police as a result of the investigation set out in the facts sheet. Senior Constable Schwarz answered in an email in the affirmative to all of those questions.
I am satisfied from having read the facts sheet that the suspicion that Mr Spark holds is reasonably held by him. Section 10(5) of the Act requires an order to be made if the court is satisfied that there are reasonable grounds for Mr Spark's suspicion.
I am satisfied also that the defendant is domiciled in New South Wales, and that the property in respect of which the order is sought is situated in New South Wales.
Section 10A(4) enables notice to be given to the defendant of this application if the court thinks fit. In the light of Mr Spark's evidence, based on his long experience in the area, concerning the speed with which property can be transferred and disposed of, I do not consider that it is appropriate to give the Defendant notice of this application in advance.
The Defendant has rights of review under s 10C of the ability.
On the plaintiff through its solicitor giving the usual undertaking as to damages, and I note that it has been given by Ms Goh, and having regard to the matters in Mr Spark's affidavit, I make the orders in paragraphs one, two, three, five, seven, and eight of the draft order, and I grant the leave and liberty contained in paras four and six.
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Decision last updated: 03 July 2014
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