New South Wales Crime Commission v Tolley
[2020] NSWSC 431
•15 April 2020
Supreme Court
New South Wales
Medium Neutral Citation: New South Wales Crime Commission v Tolley [2020] NSWSC 431 Hearing dates: 15 April 2020 Date of orders: 15 April 2020 Decision date: 15 April 2020 Jurisdiction: Common Law Before: Cavanagh J Decision: The Court makes orders 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 in the short minutes of order provided.
Catchwords: CRIME — confiscations — restraining orders Legislation Cited: Crimes Act 1900 (NSW), ss 192E, 193B
Criminal Assets Recovery Act 1990 (NSW), ss 4, 6, 7, 10A, 10C, 12
Unclaimed Money Act 1995 (NSW)Category: Procedural and other rulings Parties: New South Wales Crime Commission (Plaintiff)
Nigel Edmund Tolley (Defendant)Representation: Solicitor:
New South Wales Crime Commission (Plaintiff)
File Number(s): 2020/112882 Publication restriction: Nil
revised ex tempore Judgment
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By summons, which I granted leave to file, the New South Wales Crime Commission (“the Commission”) applies ex parte seeking restraining orders under s 10A of the Criminal Assets Recovery Act1990 (NSW) (“the Act”) in relation to any interests in property (within the meaning of interest in property as defined in s 7 of the Act) of Nigel Edmund Tolley, the defendant, including the interest in the property specified in Schedule One and Schedule Two to the summons.
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The Commission also seeks orders pursuant to s 12 of the Act that the restraining order be varied to allow the defendant or any other person to deal with the property specified in Schedule Two, (that is, the undistributed proceeds of sale, dividends or entitlements relating to the Coca Cola Hellenic Bottling Company SA (“CHB”)) for the purpose of paying those funds to entitle CHB Chess Depository Instruments (“CDI”) holders as authorised in writing by the Commission.
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The Commission seeks further orders that both defendant and his wife, Dorine Henriette Catherine Tolley, be examined on oath before a Registrar of the Court concerning their affairs, including the nature and location of any property in which they have an interest pursuant to ss 12(1)(b)(i) and 12(1)(b1) of the Act.
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Further, the Commission also seeks a number of other orders including an order pursuant to s 12(1)(c1) of the Act that the defendant furnish to the plaintiff, within 21 days after service of a copy of these orders, a statement verified on oath setting out the particulars sought in Schedule Three hereto.
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The application was supported by an affidavit of Jonathan Lee Spark, sworn 15 April 2020. Mr Spark is employed by the Commission as executive director, financial investigations, and is an authorised officer within the meaning of "authorised officer" as defined in s 4(1) of the Act. As such, he is a person authorised in writing by the Commission generally, to act as an authorised officer for the purposes of s 10A in Pt 2 of the Act.
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I am satisfied that the orders should be made for the following reasons.
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The property sought to be restrained as set out in Schedule One and Schedule Two of the summons includes land situated at East Killara, an Alpha Romeo, money held in bank accounts in the names of the defendant and Dorine Tolley and shares held by the defendant in Belputor Pty Ltd, Nigtol Pty Ltd and Sspeetham Pty Ltd.
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Mr Spark says that he suspects that the defendant has engaged in a serious crime-related activity or serious crime-related activities (within the meaning of “serious crime activities” as defined in s 6 of the Act), namely:
dishonestly obtaining financial advantage or causing disadvantage by deception contrary to s 192E(1)(b) of the Crimes Act1900 (NSW), an offence which is punishable by imprisonment for five years and an offence which involves fraud which thus falls within the definition of “serious criminal offence” pursuant to s 6(2)(d) of the Act; and
knowingly deal with the proceeds of crime intending to conceal contrary to s 193B(1) of the Crimes Act, which is again an offence punishable by imprisonment for five years and falls within the definition of a serious criminal offence.
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Mr Spark deposes to the basis on which he holds the suspicion including that:
He has inspected the records of the Commission and is aware that Katie Bourne, the Director of Assessments employed by the Commission, has obtained a copy of the NSWPF facts sheet in relation to the defendant and asked certain questions in relation to that facts sheet.
He refers to information being provided by Detective Senior Constable James Pantos, who he believes is the officer-in-charge of the investigation into the defendant. He has read the facts sheets and believes in the truth of its contents;
He has also inspected the records of the Commission and ascertained that on 6 April 2020 Sevda Ozer, a financial analyst employed by the Commission, conducted a search of the COPS database in relation to the defendant. Again, Mr Spark has reviewed the records of the COPS database.
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As set out in the police facts sheet and the Court Attendance Notice the defendant has been charged with a number of similar or related offences under s 192E(1)(b) of the Crimes Act as well as the offence of knowingly dealing with the proceeds of crime.
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The defendant was an accountant. On 2 June 2009, a foreign company, CHB, announced its intention to delist from the ASX. A trust deed, dated 30 October 2009, was entered into between CHB, CHESS Depositary Nominees Pty Ltd and the defendant’s trust fund, WW Nominees and Custodians Pty Ltd. The trust deed appointed the defendant as trustee for the unclaimed funds from the CHB share sale.
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The defendant created and operated WW Nominees and Custodians Pty Ltd in trust for CHB.
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On 2 November 2009, Computer Share sent letters to all shareholders regarding the compulsory acquisition of the shares. Although Computer Share received a number of replies from shareholders wishing to sell their shares, 4,218 shareholders were either not notified or did not reply to the Computer Share letter regarding the outstanding unclaimed money owing to them.
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On 3 May 2010, the defendant sent Computer Share a letter outlining its obligations to hand over any outstanding unclaimed dividend money to him as the registered agent and trustee. He made it clear to Computer Share that it was not entitled to retain the remaining unclaimed shareholder money. This money was then transferred from the accounts held by Computer Share to the defendant's CBA accounts in the name of WW Nominees and Custodians Pty Ltd.
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Between 9 November 2010 and 5 November 2011, the administrator of Computer Share Investment Services provided the defendant with $6,256,853.39 of unclaimed shareholder funds. The unclaimed funds were transferred into three CBA term deposited accounts. The defendant instructed the CBA that interest from each of the three term deposit accounts was to be directed to the CBA cash investment account he had set up.
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The interest from the three term deposits was thus automatically transferred to this account. However, as provided by part 4C of the trust deed, the defendant was required to deposit the unclaimed trust property in a non-interest bearing account. He was not authorised to claim and divert accrued credit interest earned on the unclaimed trust money. In doing this, he deprived the shareholders of any interest accrued to them and deprived the shareholders of any compounding effect on the interest earned causing a disadvantage to them.
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Further, on sale of his accounting practice, he kept the unclaimed shareholder money. Checks with NAB reveal that he currently retains the balance of the shareholder funds in his personal and NAB accounts. He has failed to transfer the money to Revenue NSW Consolidated Government Treasury account as unclaimed money under the Unclaimed Money Act1995 (NSW).
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In those circumstances, he has been charged with a series of offences relating to the diversion of accrued interest from the CBA term deposit interest into those other accounts.
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There is also reference to a false loan allegedly provided by the defendant to CHB using the trust money. The loan was created to satisfy a claim for return of funds from a beneficiary of the trust account.
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Mr Spark deposes to researching the records and obtaining information from NAB, as well as a search of the records of the ASIC database in relation to the defendant. He refers to his inquiries which reveal that the defendant or his wife, Dorine Henriette Catherine Tolley, hold the property referred to in the schedule.
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Mr Spark says that he has been informed that the defendant is applying for a bail condition, which will allow him to give effect to the trust deed and this will be consented to by the New South Wales Police Force. Order 2 sought in these proceedings gives effect to that proposed bail condition.
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Mr Spark also says that he is aware that, in the absence of a restraining order, it is possible for people to dispose of real estate or other assets very quickly thereby attempting to impede the operation of the Act. He thus says that in view of the serious nature of the criminal activity in which he suspects that the defendant is involved, the defendant should not be given notice of the Commission's application for a restraining pursuant to s 10A of the Act and the Commission has not done so.
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I accept the reasons identified by Mr Spark as a proper basis for the application being made ex parte. Under s 10A(4) of the Act, the Court may require the Commission to give notice of the application, but I do not consider it appropriate in the circumstances identified by Mr Spark.
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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. I am satisfied that there are reasonable grounds for the suspicions and the requirements of s 10A(5) of the Act have been addressed.
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I am thus required to make the orders sought in relation to the property and I consider that it is appropriate to make the orders sought.
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I am satisfied that the Commission ought not be required to give notice of the application to the defendant and that it should be dealt with ex parte. I have 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 to the parties to apply to have the matter relisted before the Court on three days' notice.
Orders
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I grant leave to the Commission to file in court the summons, statement of facts and circumstances relied on, the affidavit of Jonathon Lee Spark sworn 15 April 2020.
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On the plaintiff giving the usual undertaking as to damages, the giving of which by a solicitor is noted, the Court makes orders 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 in the short minutes of order provided.
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I direct that the Commission serve a copy of this judgment on the defendant.
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Decision last updated: 22 April 2020
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