NSW Crime Commission v Spooner

[2019] NSWSC 1386

Supreme Court

New South Wales

Medium Neutral Citation:	NSW Crime Commission v Spooner [2019] NSWSC 1386
Hearing dates:	3 October 2019
Date of orders:	03 October 2019
Decision date:	03 October 2019
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	See paragraph [5]
Catchwords:	PROCEEDS OF CRIME – variation of order by consent to allow sale of real property and order that net proceeds be paid to NSW Trustee and Guardian – orders made
Legislation Cited:	Criminal Assets Recovery Act 1990 (NSW), ss 10A, 10B, 12, 22, 27 28A
Category:	Principal judgment
Parties:	NSW Crime Commission (Plaintiff) Jason Spooner (Defendant)
Representation:	Counsel: P Donnelly (Plaintiff, mentioned for the Defendant)   Solicitors: NSW Crime Commission (Plaintiff)
File Number(s):	2019/255564

Judgment – ex tempore

1. The NSW Crime Commission (the plaintiff) for whom Ms Donnelly appears, and Jason Spooner (the defendant) seek that I make orders by consent under the Criminal Assets Recovery Act 1990 (NSW) (the Act). Ms Donnelly mentions the appearance of Mr Ayache, the solicitor for the defendant. The background to the application is that, on 16 August 2019, the Court made a restraining order pursuant to s 10A of the Act in respect of all of the property of the defendant, including his interest in a property known as the Raceview property.

2. On 16 August the plaintiff also sought an order forfeiting the property under s 22 of the Act, a proceeds assessment order under s 27 of the Act, and an unexplained wealth order pursuant to s 28A of the Act. The restraining order which was made on 16 August 2019 remains in force.

3. The order sought is that the restraining order be varied to allow the defendant or any other person to deal with the defendant's interest in the Raceview property by selling the property at a price agreed to in writing by the plaintiff. The orders also provide for the vendor, being the defendant, or any other person, to apply the moneys received from the sale of the property in the way set out in the consent order which include an amount necessary to discharge any registered mortgage, reasonable legal and conveyancing costs and other costs associated with the sale.

4. An order pursuant to s 10B(2) of the Act is also sought which would have the net proceeds of sale of the property, after payment of the moneys referred to in terms of paragraph 5, paid to the NSW Trustee and Guardian.

Orders

5. Having regard to the terms of s 62 of the Act which provide for this Court to make orders under the Act by consent, I am satisfied that it is appropriate to, and that I am obliged to, make orders in terms of the minute provided by Ms Donnelly. Accordingly, I note the matters in paragraphs 1, 2 and 3 of the document entitled "consent order" and I make orders in terms of paragraphs 4, 5 and 6 of the draft order. I will sign and date that order and have a copy provided to Ms Donnelly.

THE COURT NOTES that:

1. On 16 August 2019 the Court made an Order (“the restraining order”) pursuant to section 10A of the Criminal Assets Recovery Act 1990 (“the Act”) in respect of all of the interests in property of Jason Christopher Spooner (“the Defendant”) including his interest in the property specified in the Schedule hereto (“the Raceview property”).

2.   On 16 August 2019 the Plaintiff applied to the Court for orders pursuant to:

(1) section 22 of the Act for an order forfeiting to, and vesting in, the Crown specific interests in property of the Defendant;

(2) section 27 of the Act for a proceeds assessment order in respect of the illegal activities of the Defendant; and

(3) section 28A of the Act for an unexplained wealth order in respect of the Defendant.

3.   The restraining order remains in force.

BY CONSENT AND WITHOUT ADMISSIONS EXCEPT FOR THE PURPOSE OF THESE ORDERS THE COURT ORDERS that:

4. Pursuant to section 12(1) of the Act the restraining order be varied to allow the Defendant or any other person (“the vendor”) to deal with the interest in property of the Defendant in the Raceview property (“the property”) for the purpose of selling the property at a price agreed to in writing by the Plaintiff (“the sale of the property”).

5.   The vendor apply the monies received from the sale of the property to pay the following:

(a)   the amount necessary to discharge any registered mortgage secured over the property;

(b)   reasonable legal and conveyancing costs on the sale of the property;

(c)   any reasonable agent’s commission on the sale of the property;

(d)   the fee payable to a Registered Valuer for a valuation of the property;

(e)   any rates or other adjustments or monies reasonably payable under any Agreement for Sale; and

(f)   any other expenses incurred with consent in writing of the Plaintiff such consent to be in the absolute discretion of the Plaintiff.

6. Pursuant to section 10B(2) of the Act the net proceeds of the sale of the property (after the payment of monies referred to in Order 5 above) be paid to the NSW Trustee and Guardian by Bank Cheque or Electronic Funds Transfer to an account nominated by the Plaintiff, to be held by the NSW Trustee and Guardian until further order.

SCHEDULE

The whole of the property described as Lot 6 in Survey Plan 148905 (Title Reference 50568354) in Local Government Area of Ipswich in the State of Queensland, also known as 23 Scottsdale Street, Raceview, Queensland 4305 registered in the name of Jason Christopher Spooner as sole owner.

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Decision last updated: 11 October 2019