NWC Finance Pty Ltd v The State of Western Australia - [2019] WASC 485

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   NWC FINANCE PTY LTD -v- THE STATE OF WESTERN AUSTRALIA [2019] WASC 485
CORAM:   HILL J
HEARD:   20 SEPTEMBER 2019
DELIVERED          :   20 SEPTEMBER 2019
PUBLISHED           :   23 JANUARY 2020
FILE NO/S:   CPCA 7 of 2019
CPCA 45 of 2017

BETWEEN: NWC FINANCE PTY LTD
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
First Defendant
DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Second Defendant
ANTHONY MARK CARDILE
Third Defendant

Catchwords:

Criminal property confiscation - Property frozen under a freezing notice - Application to sell property by mortgagee - Extent of interests restrained - Whether mortgagee’s rights are frozen - Whether a power of sale can be ordered and on what terms

Legislation:

Criminal Property Confiscation Act 2000 (WA), s 84(3), s 91(2)
Interpretation Act 1984 (WA), s 50
Misuse of Drugs Act 1981 (WA), s 7(1)(a)

Result:

Application allowed

Category: B

Representation:

Counsel:

Plaintiff	:	P R Edgar
First Defendant	:	I S Jones
Second Defendant	:	I S Jones
Third Defendant	:	No appearance

Solicitors:

Plaintiff	:	Mendelawitz Morton Commercial Lawyers
First Defendant	:	Director of Public Prosecutions (WA)
Second Defendant	:	Director of Public Prosecutions (WA)
Third Defendant	:	No appearance

Case(s) referred to in decision(s):

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (CMFEU) [2018] HCA 3; (2018) 262 CLR 157
Director of Public Prosecutions (WA) v Musarri [2002] WASC 16
Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1019; (2014) 227 FCR 1
Musarriv Director of Public Prosecutions (WA) [2002] WASCA 28
Permanent Custodians Ltd v The State of Western Australia [2006] WASC 225
Permanent Trustee Co Ltd v The State of Western Australia [2002] WASC 22; (2002) 26 WAR 1
Re Westpac Banking Corporation [2001] WASC 365
Ward v Commissioner of Police of the Metropolis [2006] 1 AC 23

HILL J:

This application concerned whether a mortgagee of a property can and should be appointed pursuant to the Criminal Property Confiscation Act2000 (WA) (CPCA) to control, manage and sell a property the subject of a freezing notice and if so, the orders that should be made in respect of the sale.
On 16 April 2019, NWC Finance Pty Ltd filed an originating summons seeking orders that, pursuant to s 91(2) of the CPCA, it be entitled to control, manage and sell the property situated at Volume 1941, Folio 267 being Lot 249 on Plan 18491, commonly known as 65 Lorian Road, Gnangara (Property). The registered owner of the Property is Anthony Mark Cardile, the third defendant.[1] On 30 May 2019, the originating summons was amended to include, as alternative relief, an order pursuant to s 84(3) of the CPCA that the plaintiff be entitled to control, manage and sell the Property.[2]
[1] Affidavit of Alison Margaret Gibson filed 5 June 2019 'AMG1'.
[2] Order of Archer J dated 30 May 2019.
This matter initially came before me for hearing on 15 August 2019. At that time, there was no evidence on which I could be satisfied that the third defendant had been served with the application. Accordingly, on that date, I made orders for service of the papers on the third defendant. On 30 August 2019, I made orders for substituted service on the third defendant by post to the Property as well as by email and post to the third defendant's former solicitors. Affidavits of service were filed on 17 September 2019.[3]
[3] Affidavit of Sharis Jordan Cooper filed 17 September 2017; Affidavit of James Baskerville Waterman filed 17 September 2019.
The matter came back before me for hearing on 20 September 2019. On that date, orders for the sale of the Property had been agreed as between the plaintiff and the first and second defendants. I was satisfied that it was appropriate to make the orders sought by the plaintiff (as amended during the course of the hearing) and indicated that I would subsequently publish my reasons for making those orders. These are those reasons.

Relevant Factual Background

On 7 April 2017, the third defendant entered into a loan agreement with the plaintiff for the provision of funds of $500,000 to Mark Jaxon Developments Pty Ltd.[4] Under the terms of the loan agreement, the loan was required to be repaid on or about 26 July 2017.[5]
[4] Affidavit of Richard Albarran filed 17 April 2019 [5], 'RA1'.
[5] Affidavit of Richard Albarran filed 17 April 2019 [7].
It was a term of the agreement that the third defendant enter into a registrable mortgage over the Property.[6] For that reason, on or about 7 April 2017 the plaintiff and third defendant entered into a mortgage over the Property which was registered against the certificate of title for the Property.[7]
[6] Affidavit of Richard Albarran filed 17 April 2019 [6].
[7] Affidavit of Richard Albarran filed 17 April 2019 [6], 'RA2'.
Pursuant to the express terms of the loan agreement, the third defendant was required to ensure that all expenses in relation to the Property were paid, including all rates and utilities.[8]
[8] Affidavit of Richard Albarran filed 17 April 2019 'RA1', Loan Agreement, cl 33.3, p 29.
On 25 April 2017, following the execution of a search warrant at the Property,[9] the third defendant was charged with one count of cultivating a prohibited plant, namely cannabis, with intent to sell or supply contrary to the Misuse of Drugs Act 1981 (WA), s 7(1)(a).[10]
[9] Affidavit of Alison Margaret Gibson filed 5 June 2019 'AMG2', p 10.
[10] Affidavit of Alison Margaret Gibson filed 5 June 2019 'AMG3', 'AMG4'.
On 27 June 2017, a freezing notice was issued pursuant to the CPCA in respect of the Property on two grounds: first on the basis that the third defendant could be declared a drug trafficker and second on the basis that the Property was crime‑used property.[11] Two memorials were lodged on the same date: the first, Memorial N658268 MF, froze the land on crime-used grounds;[12] and the second, Memorial N658279 MF, froze the third defendant's interest in the Property on the basis that the third defendant could be declared a drug trafficker. [13]
[11] Affidavit of Richard Albarran filed 17 April 2019 'RA5'.
[12] Affidavit of Alison Margaret Gibson filed 5 June 2019 'AMG1', p 11 ‑ 12.
[13] Affidavit of Alison Margaret Gibson filed 5 June 2019 'AMG1', p 9 ‑ 10.
On 25 July 2017, the plaintiff filed an objection to the confiscation of the frozen Property being proceedings CPCA 45 of 2017.[14] Those proceedings have been consolidated with these proceedings with these proceedings being the lead proceedings.[15]
[14] Plaintiff's Submissions [10] - [11].
[15] Order of Archer J made 30 May 2019 in CPCA 45 of 2017.
On 30 June 2017, the plaintiff issued a notice of default to, inter alia, the third defendant on the basis that the third defendant had failed to pay outstanding water charges in respect of the Property.[16] The notice of default demanded repayment of the loan together with outstanding costs and required compliance by 4 August 2017.[17] The third defendant did not comply with the notice of default by that date.[18]
[16] Affidavit of Richard Albarran filed 17 April 2019 [8], 'RA4'.
[17] Affidavit of Richard Albarran filed 17 April 2019 'RA4'.
[18] Affidavit of Richard Albarran filed 17 April 2019 [9].
On 7 June 2018, the third defendant pleaded guilty to the charge. He received a conditionally suspended sentence of imprisonment and was declared to be a drug trafficker.[19]
[19] Affidavit of Alison Margaret Gibson filed 5 June 2019 [13], 'AMG2'.
On 27 November 2018, the plaintiff appointed Richard Albarran, Richard Lawrence and Cameron Shaw of Hall Chadwick to be the agents of the plaintiff pursuant to the terms of the mortgage.[20]
[20] Affidavit of Richard Albarran filed 17 April 2019 'RA6'.
As at June 2019:
(a)the Property was valued at between $800,000 and $1.1 million;[21]
(b)the Property had decreased in value by approximately $200,000 since entry into the Loan Agreement;[22] and
(c)the outstanding balance of the loan sum (together with enforcement costs) is more than $1.2 million.[23]
[21] Affidavit of Cameron Shaw filed 21 June 2019 [6].
[22] Affidavit of Cameron Shaw filed 21 June 2019 [32].
[23] Affidavit of Cameron Shaw filed 21 June 2019 [21].
As at the date of the hearing before me, no declaration of confiscation has yet been made in respect of the Property pursuant to the CPCA, s 30.[24]
[24] Affidavit of Alison Margaret Gibson filed 5 June 2019 [16].

Summary and structure of CPCA

As has been noted by judges of this court previously, the CPCA is a complex and draconian piece of legislation which makes the task of statutory construction a difficult one. It is, for that reason, not surprising that single judges have reached different conclusions on the meaning of s 91 of the CPCA.
Under the CPCA, there are five circumstances in which property can be confiscated by the State: unexplained wealth, criminal benefits, crime-used property, crime-derived property and where the person is a declared drug trafficker.[25]
[25] Criminal Property Confiscation Act s 4.
Where property has been frozen under the CPCA, any dealing in the frozen property 'in any way' is prohibited[26] unless the person is acting in accordance with an order under s 45(c), s 91(2) or s 93(2) of the CPCA.[27]
[26] Criminal Property Confiscation Act s 50(1).
[27] Criminal Property Confiscation Act s 50(2)(a).
Property which is frozen under a freezing notice as being crime-used or crime-derived property is confiscated if an objection to the confiscation of the property is not filed within 28 days after service of the freezing notice.[28] Where an objection is filed, the property is not confiscated until the objection has been determined and, in the interim, the freezing notice has not been set aside.[29] Until the objection in determined, the property is under the control and management of the DPP,[30] unless the DPP appoints the Public Trustee or the owner to control and manage the property[31] or the court appoints the owner to control and manage the property.[32]
[28] Criminal Property Confiscation Act s 7(1).
[29] Criminal Property Confiscation Act s 7(2).
[30] Criminal Property Confiscation Act s 89.
[31] Criminal Property Confiscation Act s 89(3).
[32] Criminal Property Confiscation Act s 91(2)(a).
A freezing notice comes into force when a memorial of the making of the order is registered by the Registrar of Titles[33] and stops being in force when a further memorial is registered.[34]
[33] Criminal Property Confiscation Act s 48(1) and s 113(1).
[34] Criminal Property Confiscation Act s 38(2).
Pursuant to s 8(1)(a) of the CPCA, where a person is declared to be a drug trafficker, all the property owned or controlled by the person at that date is confiscated.
Section 9 of the CPCA deals with the time at which registrable real property vests absolutely in the State. This occurs when a declaration is made by the court that the property has been confiscated and a memorial is registered with the Office of Land Titles.[35] If registrable real property has been confiscated but not vested in the State, s 50 and s 51 and pt 7 of the CPCA continue to apply to the property as if it were still subject to a freezing order.[36]
[35] Criminal Property Confiscation Act s 9(1).
[36] Criminal Property Confiscation Act s 9(3).
When the property vests absolutely in the State, the property vests free from all registered and other interests in the property, including mortgages.[37]
[37] Criminal Property Confiscation Act s 9(2)(a).
Part 6 of the CPCA deals with objections to confiscation. A party may file an objection within 28 days after service of the freezing notice.[38] On the hearing of an objection, the court may set aside the freezing notice under s 82 (crime-used property), s 83 (crime-derived property) or s 84 (other frozen property) of the CPCA.[39]
[38] Criminal Property Confiscation Act s 79(2).
[39] Criminal Property Confiscation Act s 81(1).
If an objection has not been filed, a person can apply to the court for the release of property that has been confiscated under s 6 or s 7 of the CPCA.[40] The grounds on which an application can be made are set out in s 87 of the CPCA including on the basis that the applicant is an innocent party.[41]
[40] Criminal Property Confiscation Act s 85(1).
[41] Criminal Property Confiscation Act s 87(1)(d).
Section 91 is in div 1 of pt 7 of the CPCA. Part 7 of the CPCA deals with the management of seized, frozen and confiscated property. Division 1 concerns the control and management of property, div 2 concerns the disposal of deteriorating or undesirable property, and div 3 concerns management of property by the Public Trustee.
Section 91 of the CPCA provides that:
91. Control etc. of frozen property by owner, court may order
(1)An owner of frozen property may apply to the court for an order under subsection (2) in relation to the property.
(2)On hearing an application, the court may, if it thinks fit, by order appoint the person —
(a)to control and manage the property while the freezing notice or freezing order is in force; or
(b)to sell or destroy the property.
Each of the terms 'owner', 'frozen' and 'property' are expressly defined in the Glossary to the CPCA.
'Property' is defined as meaning:
(a) Real or personal property of any description, wherever situated, whether tangible or intangible; or
(b) A legal or equitable interest in any property referred to in paragraph (a).
'Owner' is defined to mean 'a person who has a legal or equitable interest in the property'.
'Frozen', in relation to property, is defined to mean 'subject to [a] freezing notice or freezing order'.
An order for sale of frozen property can also be made under s 94 of the CPCA. This section provides that:
94. Deteriorating frozen property, sale of
(1)A person who has responsibility for the control or management of frozen property may apply to the court for an order under subsection (2).
(2)The court may order that the property is to be sold if it is more likely than not that -
(a)the property is or will be subject to substantial waste or loss of value if it is retained until it is dealt with under another provision of this Act; or
(b)the cost of managing or protecting the property will exceed the value of the property if it is retained until it is dealt with under another provision of this Act.
(3)If the Public Trustee has the control or management of frozen property under this Act, the Public Trustee may sell the property in the circumstances referred to in subsection (2), without obtaining an order under that subsection, if -
(a)the Public Trustee gives adequate notice of the proposed sale to the owner of the property; and
(b)the owner does not file an objection to the sale in the court that made the freezing order.
(4)When frozen property is sold under an order under subsection (1), or under subsection (2), the net proceeds of the sale are taken to be frozen property that is subject to the freezing notice or freezing order made in respect of the sold property.
Having set out the relevant legislative provisions, I now turn to consider the specific application made by the plaintiff.

Standing of the plaintiff to apply under s 91 of the CPCA

On the evidence before me, I am satisfied that the Property has been confiscated but has not yet vested absolutely in the State. For this reason, s 50 and s 51 and pt 7 of the CPCA continue to apply to the Property.
Section 91 of the CPCA is within pt 7 of the CPCA. Accordingly, if the plaintiff's interest in the Property has been frozen, the plaintiff will have standing to bring an application for orders in relation to the Property, including an order that the plaintiff be appointed to sell the Property.
As noted above, in this case, the Property has been frozen on two grounds: first, on the basis that the Property is crime-used property and second, on the basis that the third defendant could be declared a drug trafficker. The first ground freezes the property.[42] Accordingly, this has the effect that all legal and equitable interests in the Property are frozen, including the interests of the plaintiff.
[42] Criminal Property Confiscation Act s 34(2).
The first defendant conceded, quite properly in my view, that the plaintiff, as mortgagee, has a legal interest in the Property and accordingly, in respect of the first ground, is an 'owner of frozen property' for the purposes of the CPCA, s 91.[43]
[43] See Permanent Trustee Co Ltd v The State of Western Australia [2002] WASC 22; (2002) 26 WAR 1 [69]; Re Westpac Banking Corporation [2001] WASC 365 [37].
In contrast, the second ground only freezes property that is owned or effectively controlled by the third defendant and which has not been given away.[44] I agree with McKechnie J's observations in Permanent Custodians Ltd v The State of Western Australia,[45] which I discuss below, that this ground freezes only the third defendant's interest in the Property and not the plaintiff's interest. For this reason, if the freezing notice only froze the Property on the basis that the third defendant could be declared a drug trafficker, I would not consider that the applicant was an 'owner' for the purposes of an application pursuant to s 91 of the CPCA.
[44] Criminal Property Confiscation Act s 34(3).
[45] Permanent Custodians Ltd v The State of Western Australia [2006] WASC 225.
Having found that the plaintiff is an 'owner' for the purposes of s 91 of the CPCA, the question then arises as to the ambit of the court's power under this section and whether the court can make orders for a mortgagee to sell real property that is the subject of a freezing notice under the CPCA.

Power of the court under s 91 of the CPCA

There are conflicting authorities of single judges of this court in relation to the proper construction of s 91 of the CPCA.
In Re Westpac Banking Corporation, an application was brought by two separate mortgagees for orders to sell mortgaged property. The property had been frozen as crime-used or crime‑derived property pending a trial of the accused on indictable offences under the Misuse of Drugs Act. At the time of the application, the trial had not occurred. The evidence before the court was that, as a consequence of the incarceration of the accused on these charges, the accused had been unable to service the mortgages and the loans had fallen into default.
Hasluck J found that there was power pursuant to s 91 of the CPCA to make orders allowing the mortgagees to sell certain frozen real property and for the proceeds of sale to be used to discharge the mortgages with the balance to be held by the Public Trustee pending the outcome of the confiscation action against the registered proprietor of the real property.[46] His Honour found that the orders proposed by the mortgagee were consistent with the scope of the power in s 91 of the CPCA and that the court had an 'incidental power' which allowed orders for the sale of the property and distribution of the proceeds of sale to be made.[47] In reaching this conclusion, Hasluck J took account of a number of sections of the CPCA where an applicant can apply to the court to vary the effect of a freezing notice.[48]
[46] Re Westpac Banking Corporation [35].
[47] Re Westpac Banking Corporation [65] - [66].
[48] Criminal Property Confiscation Act s 49, s 83 and s 84.
In considering whether to his exercise his discretion to make an order under s 91 of the CPCA, his Honour took into account the following matters:
(a)whether the application was opposed by the Director of Public Prosecutions and the registered proprietor of the mortgaged property;[49]
(b)the scheme of what was proposed for the sale of the property, namely that the mortgaged property would be sold subject to certain precautions to ensure the mortgagee proceeds 'in a timely and reasonable way';[50]
(c)at the time of the applications, the accused had not been convicted of any offence;[51] and
(d)the intention of the CPCA and the existing order freezing the property.[52]
[49] Re Westpac Banking Corporation [43], [51].
[50] Re Westpac Banking Corporation [49].
[51] Re Westpac Banking Corporation [59].
[52] Re Westpac Banking Corporation [62].

The accused appealed against the decision of Hasluck J and brought an application for a stay. In Musarri v Director of Public Prosecutions (WA), McKechnie J dismissed the application for a stay and made orders requiring the registered proprietor to deliver up keys and, in default of compliance, for the mortgagee to take possession of the property.[53] In reaching his decision, McKechnie J noted that, in that case, it was common ground that the properties in question were mortgaged, the mortgagors were in default and that the properties should be sold. He went on to state:[54]
The banks had an entitlement to sell arising under the mortgages, not arising under the [CPCA]. The Criminal Property Confiscation Act, in its application to this case, does not give the court power to interfere with those arrangements. Once the court decided to exercise its discretion under s 91 to make an order, it was bound to make an order in favour of the banks, not the appellants.
[53] Musarri v Director of Public Prosecutions (WA) [2002] WASCA 28.
[54] Musarri v Director of Public Prosecutions (WA) [18].
Subsequently, further orders pursuant to s 91 of the Act were made by White AUJ in favour of the mortgagees.[55] These orders allowed one of the mortgagees to take possession of the real property and for the other mortgagee to take possession and exercise all the mortgagee's rights under the mortgage. In his reasons for decision, his Honour did not consider the scope of powers under s 91 of the CPCA.
[55] Director of Public Prosecutions (WA) v Musarri [2002] WASC 16.
In Permanent Trustee Co Ltd v The State of Western Australia,[56] an application was made by a mortgagee for the sale of a property that had been frozen pursuant to a notice issued on three grounds: that the property was crime-used, the property was crime-derived and that the accused could be declared to be a drug trafficker. The issue of the freezing notice was the default relied upon by the mortgagee and a notice of demand was issued.
[56] Permanent Trustee Co Ltd v The State of Western Australia.
McKechnie J held that s 91(2) of the Act did not give the court power to make the orders sought by the mortgagee. Specifically, he held that where an objection is lodged to confiscation of the property, the CPCA provides a complete mechanism for the release of crime-used property and crime‑derived property prior to trial, but did not provide any mechanism for the early release of the property of a drug trafficker prior to the conclusion of criminal proceedings, irrespective of whether the objector is innocent, as most mortgagees are likely to be.[57]
[57] Permanent Trustee Co Ltd v The State of Western Australia [77].
His Honour stated that:[58]
The appointment by the court of an owner to control and manage property is the only way in which an owner can exert control over property after it has been frozen. Having regard to the whole scheme of the CPCA, and in particular the earlier part dealing with objections, s 91(2) cannot be regarded as empowering a court to grant an unrestricted right of sale when such a sale would defeat the other provisions of the CPCA. The power to order destruction or sale must be an adjunct to and read in conjunction with s 93 and s 94. Section 91(2)(b) must be read in the light of s 94, that is, that the property may be sold if it is more likely than not that the property is, or will be subject to substantial waste or loss of value if it is retained, or the cost of managing or protecting the property will exceed the value of the property if it is retained until it is dealt with under another provision of the Act.
The fact that the property has deteriorated to the degree described in s 94(2) may not be immediately apparent at the time an appointment is made to control or manage the property. In that case, s 93 and s 94 gives the person appointed under s 91(2)(a) the right to apply subsequently for the destruction or sale of property. The need for destruction or sale might be immediately apparent so that the owner may not wish to control or manage the property but simply dispose of it by way of sale or destruction.
The DPP has no right to sell or destroy property but must apply under s 93 or s 94.
What cannot be done is use s 91(2)(b) as an artifice to overcome the specific provisions of the CPCA by allowing a sale on terms in a purported exercise of rights under the mortgage.
[58] Permanent Trustee Co Ltd v The State of Western Australia [82] - [85].
In support of this construction, his Honour noted that there was no specific provision in s 91 for the making of ancillary orders, which were required to permit the making of orders such as appointment of a valuer and allowing inspection of the property.[59] He went on to state:[60]
If the act of the State in obtaining a freezing notice triggers a default provision in a mortgage, and the property is sold under s 91, there is potential for irremediable injustice. If the State later fails to establish its criminal case in respect of a drug trafficker, or the person proves that the property was probably not crime‑related or crime‑derived, then an innocent person will have lost their property through no fault or act of their own. A construction of s 91 which achieves this result should be rejected unless it is compelling. In the present case, I consider there is a better alternative construction which fits within the overall purpose of the CPCA. As I have outlined, that construction is to read s 91 in conjunction with s 93 and s 94. To confirm this construction I conclude that there is no power under CPCA s 91 to make ancillary orders of the type contemplated in the Permanent Trustee Co Ltd chamber summons.
[59] Permanent Trustee Co Ltd v The State of Western Australia [89].
[60] Permanent Trustee Co Ltd v The State of Western Australia [92].
McKechnie J distinguished the decision of Hasluck J in Re Westpac Banking Corporation on two grounds; first, in that case, all parties wanted the properties to be sold; and second, there was evidence before the court of deterioration.[61]
[61] Permanent Trustee Co Ltd v The State of Western Australia [94].
These grounds are, in my respectful view, not persuasive. In respect of the first matter, the question as to whether the other parties, particularly the DPP, consent to the application may be relevant to the exercise of discretion but it cannot convey jurisdiction on the court that it does not have. The power to make an order for sale must be contained in the CPCA; it is not for the parties to confer the power on the court. In respect of the second matter, there is no reference in the judgment of Hasluck J to any deterioration in the properties that are the subject of the application. This factor does not appear to have been material to his Honour's decision.
In Permanent Custodians Ltd v The State of Western Australia, a mortgagee brought an application under s 84(2) to set aside a freezing notice in respect of the mortgagee's interest in a property that had been frozen pursuant to a notice issued under the CPCA. The freezing notice was issued on the basis that the accused could be declared to be a drug trafficker. The default relied upon by the mortgagee arose prior to the issue of the freezing notice. At the time of the application, the accused had not been convicted of any offence. The application was opposed by the accused but supported by the DPP who conceded that the accused did not own or control the interest of the mortgagee in the property and had not given it away.
McKechnie J held that the mortgagee had an interest in the land arising from their registered mortgage but that this was not an interest that was the subject of the freezing notice. However, in his view, it was inappropriate to make an order for the sale of the land because such an action would constitute a 'dealing' with the property within the CPCA which was forbidden under the CPCA, s 50(1).[62]
[62] Permanent Custodians Ltd v The State of Western Australia [26].
In my view, for the following reasons, the decision of Hasluck J in respect of the scope of the court's powers under s 91 of the CPCA should be preferred. First, on a proper construction of s 91 of the CPCA, the court can make orders appointing a person to control and manage the property or separately, to sell or destroy the property. It is not a necessary condition for an order for sale that the person be appointed to control and manage the property. Apart from the requirement that the order should only be made if the court thinks fit, there is no other condition or restriction imposed on the court's exercise of discretion under this section.
Second, there is a separate provision in s 94 of the CPCA for a person who has the control or management of frozen property to apply to the court to sell frozen property. Where such an application is made, the court may order the sale of the property if satisfied that it is more likely than not that either the property is deteriorating[63] or the cost of managing the property will exceed the value of the property.[64] If the only circumstance in which the court could order the sale of the property is where the property was deteriorating, s 91(2)(b) would be unnecessary and would have no work to do.
[63] Criminal Property Confiscation Act s 94(2)(a).
[64] Criminal Property Confiscation Act s 94(2)(b).
Third, the risk of prejudice referred to by his Honour as supporting his construction of s 91 was the risk to a registered proprietor if the freezing notice triggers a default notice and a sale is permitted but the State does not succeed ultimately in its criminal case, or the person proves that the property is not crime‑related or crime‑derived. However, this is not the risk that arose in this case nor in Re Westpac Banking Co. In both these cases, the event of default which arose under the mortgage was not the issue of the freezing notice but an independent event of default. The risk of prejudice to an innocent mortgagee who is prevented from exercising its rights under a mortgage by reason of the freezing notice would support a broader construction of s 91 of the CPCA. This construction is consistent with other provisions of the CPCA which enable an innocent mortgagee to be paid out its interest in the property for crime-used property[65] and for crime‑derived property.[66] While I consider that the risk of prejudice referred to by his Honour is relevant, in my view, this is a matter that should be taken into account by the court in determining whether to exercise its discretion rather than a matter that is relevant to the scope of the power under s 91 of the CPCA.
[65] Criminal Property Confiscation Act ss 82(4) - (8).
[66] Criminal Property Confiscation Act s 83(2) - (7).
I also prefer the reasons of Hasluck J as to the extent of orders that can be made under s 91. In addition to the general principle of construction that the express conferral of power carries with it all that is reasonably necessary to ensure its effective exercise,[67] this principle is embodied in s 50 of the Interpretation Act 1984 (WA). It is not sufficient that the incidental power is desirable or convenient, the incidental power must be necessary. That is, it must be a matter that without it, the statutory function could not achieve its purpose.[68]
[67] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (CMFEU) [2018] HCA 3; (2018) 262 CLR 157 [53] (Gageler J).
[68] Ward v Commissioner of Police of the Metropolis [2006] 1 AC 23, 40; Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1019; (2014) 227 FCR 1 [277].
In selling a property, it is necessary to determine the value of the property and how the property will be sold, including the minimum price to be accepted, and the payment of costs associated with the sale. However, I do not consider that orders dealing with the distribution of proceeds of sale is an incidental power of the power of sale. For this reason, I consider that if an order is to be made in relation to the distribution of proceeds, it needs to be made under other sections of the CPCA.
The amended orders proposed by the plaintiff, and consented to by the first and second defendants, address each of the allowable matters. In my view, the court has the incidental power under s 91 of the CPCA to make orders specifying the proposed scheme for the sale of the property.
Having found that the court has power to make an order for sale of the Property under s 91 of the CPCA, I now turn to consider whether the court should exercise its discretion to the order sought.

Whether an order for sale should be made and, if so, on what terms

In considering whether an order for sale should be made, it is my view that the following matters should be taken into account:
(a)the time at which the application is made, namely, whether the registered proprietor has been charged with an offence or convicted of any offence;
(b)the event of default relied upon by the mortgagee and whether this arose independently of the freezing notice or is reliant upon the freezing notice;
(c)whether the application is opposed by the Director of Public Prosecutions and the registered proprietor of the mortgaged property;
(d)how the sale is proposed to occur; and
(e)the terms of the order freezing the property.
This is a non‑exhaustive list.
In this case, on 7 June 2018, the registered proprietor was convicted of the offence of cultivating a prohibited plant with intent to sell or supply contrary to s 7(1)(a) of the Misuse of Drugs Act and a declaration made that he is a drug trafficker. The offence occurred at the Property.
The application by the mortgagee to sell the Property was made on 16 April 2019. The event of default relied upon by the mortgagee is not related to the freezing notice; it arose as a consequence of the failure by the third defendant to pay water charges in respect of the Property.
The mortgagee relies upon the terms of the mortgage for its right to sell the Property. If the Freezing Notice was not in place, there is no question that the mortgagee would be entitled to exercise its rights under the mortgage to sell the Property.
The application was supported by the Director of Public Prosecutions. The registered proprietor of the Property, the third defendant, did not appear at the hearing despite being served with the application. As the third defendant has been declared a drug trafficker, his interests in the Property have been confiscated and he has no remaining interest in the Property.
The scheme of what is proposed by the plaintiff is that the Property be sold subject to certain precautions to ensure the sale proceeds in a timely and reasonable way. Importantly, apart from payment of the costs and expenses incurred in the sale of the Property, the proceedings are to be paid into a trust account and there will be no further payment or distribution until further order of the court. In my view, this order is required.
Taking all of these matters into account, it was and is my view that the application by the plaintiff should be allowed and that orders should be made in terms of the memorandum of consent orders dated 20 September 2019 as amended at the hearing.

Conclusion

In my view, the court has power under s 91 of the CPCA to order the sale of the Property. In all of the circumstances, I consider that it is appropriate for an order for the sale of the Property to be made and that the proceeds of sale (after the deduction of the costs and expenses incurred in the sale) to be paid into a trust account pending further order of the court.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ME
Associate to the Honourable Justice Hill
23 JANUARY 2020