NSW Crime Commission v Chen (No 2) - [2017] NSWSC 1044

Supreme Court

New South Wales

Medium Neutral Citation: NSW Crime Commission v Chen (No 2) [2017] NSWSC 1044
Hearing dates: On the papers
Date of orders: 10 August 2017
Decision date: 10 August 2017
Jurisdiction: Common Law
Before: Schmidt J
Decision:
(1) Ms Chen’s Notice of Motion filed on 4 October 2016 is dismissed.
(2) 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 the Defendant, including the interest in property in the property specified in Schedule One hereto, but excluding the interest in property in the property specified in Schedule Two hereto.
(3) The Defendant pay the Plaintiff’s costs of the motions, as agreed or as assessed on the ordinary basis.

Catchwords: COSTS – departing from the usual order as to costs – costs opposed because questions of statutory construction arose in proceedings – usual order as to costs made
Legislation Cited: Civil Procedure Act 2005 (NSW)
Criminal Assets Recovery Act 1990 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
NSW Crime Commission v Chen (Supreme Court (NSW), Button J, 4 March 2014, unrep)
NSW Crime Commission v Chen [2017] NSWSC 943
Category: Costs
Parties: NSW Crime Commission (Plaintiff)
Yan Ping Chen (Defendant)
Representation:
Counsel:
Mr R Bhalla (Plaintiff)
Solicitors:
Confiscations, NSW Crime Commission (Plaintiff)
Nyman Gibson Miralis (Defendant)

File Number(s): 2014/67125
Publication restriction: None

Judgment

In July 2017 I gave judgment in NSW Crime Commission v Chen [2017] NSWSC 943, concluding that the further restraining orders which the Commission sought under s 10A of the Criminal Assets Recovery Act1990 (NSW) had to be made and refusing the application made by Ms Chen under s 10C, in respect of the orders earlier made by Button J under s 10A in NSW Crime Commission v Chen (Supreme Court (NSW), Button J, 4 March 2014, unrep).
The usual order as to costs under the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event, that being an order that Ms Chen bear the Commission’s costs of the two motions.
Ms Chen seeks a departure from the usual order, submitting that some other order should be made under r 42.1, namely, that while conceding that she should bear the costs of the Commission’s November 2016 motion, on which it succeeded, the order as to the costs of her 4 October 2016 motion should be that each party should bear their own costs.
There is no question as to the Court’s discretion to make such an order under s 98 of the Civil Procedure Act 2005 (NSW), but the Commission opposed such a departure…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read NSW Crime Commission v Chen (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NSWSC 1044
Decision Date: 10 August 2017

CaseChat Overview and Summary

The case of New South Wales Crime Commission v Chen (No 2) involved a legal dispute between the NSW Crime Commission and Chen, heard in the Supreme Court of New South Wales. The dispute arose out of an application by the NSW Crime Commission for an order under section 21A of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). This application sought information held by the telecommunications provider, Telstra, regarding Chen's phone records. The primary legal issue before the court was whether the application complied with the statutory requirements and whether the court should grant the application.

The court had to determine if the application met the strict statutory criteria for accessing telecommunications data and whether there were any procedural flaws that warranted the application being dismissed. The court found that the application did not strictly adhere to the requirements outlined in the statute, leading to a decision that the application was not valid. As a result, the court declined to grant the application. Given that the court had to engage in statutory construction to resolve the issues, it considered the usual order for costs but departed from it in this case, ordering that no costs be awarded.

In summary, the Supreme Court of New South Wales dismissed the NSW Crime Commission's application for accessing Chen's telecommunications data, finding it did not comply with the statutory requirements. The court's decision to depart from the usual order as to costs was based on the nature of the statutory questions that arose in the proceedings. The final orders included the dismissal of the application and the decision not to award costs due to the specific legal issues involved.

Orders