New South Wales Crime Commission v Uppal

[2019] NSWSC 137

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Uppal [2019] NSWSC 137

Hearing dates:

21 February 2019

Date of orders:

21 February 2019

Decision date:

21 February 2019

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 19 February 2019, 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 Malini Uppal, 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 Malini Uppal shall be examined on oath before a Registrar of the Court concerning her affairs, including the nature and location of any property in which she has an interest.

 

3. Pursuant to section 12(1)(b1) of the Criminal Assets Recovery Act 1990 Ripan Uppal shall be examined on oath before a Registrar of the Court concerning the affairs of Ripan Uppal, including the nature and location of any property in which Ripan Uppal or Malini Uppal 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 Malini Uppal shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Malini Uppal, a statement verified by oath of Malini Uppal setting out the particulars sought in Schedule Two hereto.

 

6. Leave is granted to the Plaintiff to amend its Summons filed 2 October 2015 to seek an order pursuant to section 28A of the Criminal Assets Recovery Act 1990 that Malini Uppal pay to the Treasurer an amount assessed by the Court as the value of the unexplained wealth of Malini Uppal.

 

7. Leave is granted to the Plaintiff to amend its Summons filed 2 October 2015 to seek an a declaration that Malini Uppal has effective control (within the meaning of “effective control” as defined in section 8 and 7 (3) of the Criminal Assets Recovery Act 1990) of all of the interests in property (within the meaning of “interest in property” as defined in section 7 of the Criminal Assets Recovery Act 1990) of Safetrans Logistics Pty Limited, A.B.N 96 129 430 075.

 

8. Liberty is granted to the Plaintiff and Malini Uppal to apply on three (3) days’ notice.

 

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

 

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. The whole of the property described as Lot 1 in Deposited Plan 774224, at Hurstville, Local Government Area Georges River, Parish of St George, County of Cumberland, also known as 89B Donald Street, Hurstville New South Wales 2220 and registered in the name of Malini Uppal.

 

2. 100 Ordinary Shares in Safetrans Logistics Pty Limited, A.B.N 96 129 430 075.

 

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.

Catchwords:

CRIMINAL LAW – proceeds of crime – restraining orders – notice of motion to add second defendant – where added defendant was the wife of the defendant – separate criminality by added defendant – additional property in added defendant’s name

Legislation Cited:

Crimes Act 1900 (NSW)
Criminal Assets Recovery Act 1990 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural and other rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Ripan Uppal (First Defendant)

Representation:

Counsel:
A Bishop – Ex parte (Plaintiff)

  Solicitors:
Legal Unit, New South Wales Crime Commission (Plaintiff)

File Number(s):

2015/290765

Judgment

1. On 2 October 2015, Bellew J made orders including a restraining order pursuant to s10A of the Criminal Assets Recovery Act 1990 (NSW) against the property of the defendant Ripan Uppal. That restraining order remains in force.

2. The plaintiff now moves by motion to amend the summons to add, as a second defendant, the wife or partner of Ripan Uppal, that is, Malini Uppal, and to seek a restraining order against two items of property in her name, being real estate in Hurstville, and shares in a company Safe Trans Logistics Pty Ltd, formerly a company under the control of the existing defendant.

3. The application is supported by an affidavit of Jonathan Lee Spark sworn 19 February 2019. Mr Spark is an authorised officer of the plaintiff.

4. Section 10A(5) of the Act requires the Court to make an order, if the application is supported by an affidavit of an authorised officer setting out the matters contained in that subsection, and stating the grounds on which the suspicion referred to therein is based, and the Court considers there are reasonable grounds for the suspicion.

5. Mr Spark deposes to a suspicion that the proposed defendant has engaged in serious crime related activity, namely, dishonestly obtaining a financial advantage contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) being an offence punishable by imprisonment for five years and involving fraud. That offence falls within the definition of "serious criminal offence" pursuant to s6(2)(d) of the Criminal Assets Recovery Act.

6. The offence involved the proposed defendant obtaining a loan from Westpac in the amount of approximately $480,000 on the basis of having made false statements and providing false documents in support of the loan application.

7. Mr Spark sets out in his affidavit a large number of records which identify the loan application and the documents that were provided to Westpac to obtain the loan. What was said in the loan application and the supporting documents was then contrasted by Mr Spark with documents produced to the plaintiff by the Australian Tax Office.

8. Those tax records showed that the income declared by the proposed defendant was markedly lower than the income stated by her in the loan application and supporting documents. It also showed or tended to show that she was not employed by the company she claimed to have been employed by when she made the loan application to Westpac, and upon which employment she relied.

9. I have read the documents annexed to Mr Spark's affidavit, and I am satisfied that the suspicion Mr Spark has that the proposed defendant has committed the offence is reasonably held.

10. The present application is made as an amendment to the existing proceedings on the basis both of the personal relationship between the defendant and the proposed defendant, and also because the evidence tends to suggest that the assets now sought to be restrained are assets that are or have been enjoyed by both the existing defendant and the proposed defendant. It seems to me entirely appropriate that the application should be made in that way.

11. The plaintiff seeks that the application should be made without notice being given to the proposed defendant. The plaintiff relies, in that regard, on Mr Spark’s evidence that he has had regard to the serious nature of the criminal activity in which both the defendant and the proposed defendant have been involved, and in respect of which the existing defendant has already been convicted. He also has regard to the fact that this is an application by motion in existing proceedings, that the proposed defendant is likely to be aware of the nature of the plaintiff's proceedings, and may take steps to attempt to defeat the operation of the Act.

12. I am satisfied in all the circumstances that it is appropriate the application should be made without notice to the proposed defendant. The proposed defendant will have the rights in s 10C of the Act to seek a review of the existing orders.

**********

Decision last updated: 22 February 2019