Page & Page v Director of Prosecutions

[1992] QCA 342

IN THE COURT OF APPEAL [1992] QCA 342

SUPREME COURT OF QUEENSLAND

Appeal No. 72 of 1992

Before the Court of Appeal

The President

Mr Justice Davies

Mr Justice Lee

BETWEEN:

TERENCE-ANTHONY PAGE and

LYNN MAREE PAGEAppellants

- and -

THE DIRECTOR OF PROSECUTIONS

Respondent

Appeal No. 73 of 1992

LYNN MAREE PAGE
Appellant

- and -

THE DIRECTOR OF PROSECUTIONS

First Respondent

- and -

TERENCE ANTHONY PAGE

Second Respondent

Appeal No. 149 of 1992

BETWEEN:

LYNN MAREE PAGE

Appellant

- and -

THE DIRECTOR OF PROSECUTIONS

Respondent

JUDGMENT OF THE COURT

Delivered the 30th day of September, 1992

MINUTE OF ORDER:  Appeals dismissed with costs.

CATCHWORDS:Criminal law. Confiscation of property. Appeal from

refusal to authorise sale of land upon refusal
of DP to consent - whether any basis for
concluding orders didnot give effect to the
legislation or that discretion miscarried.

Counsel:Mr E. Lennon Q.C. with him Mr D. Savage for the appellant

Ms. S. Kiefel Q.C. with her Mr P. Ambrose for the respondent

Solicitors:Robertson O'Gorman t/a for Fitz-Walter Cull & Walker for

the appellants.

Director of Prosecutions for the Respondent

Hearing dates: 28 and 29 July 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 72 of 1992

BETWEEN:

TERENCE-ANTHONY PAGE and

LYNN MAREE PAGEAppellants

- and -

THE DIRECTOR OF PROSECUTIONS

Respondent

Appeal No. 73 of 1992

BETWEEN:

LYNN MAREE PAGE

Appellants

- and-

THE DIRECTOR OF PROSECUTIONS

First Respondent

- and -

TERENCE ANTHONY PAGE

Second Respondent

Appeal No. 149 of 1992

BETWEEN:

LYNN MAREE PAGE

Appellant

- and -

THE DIRECTOR OF PROSECUTIONS

Respondent

JUDGMENT OF THE COURT

Delivered the 30th day of September, 1992

On 20 August 1991, Mr Terence Anthony Page was charged with two offences. Briefly stated, one charge was that he carried on unlawful bookmaking at the Gold Coast between 1 May 1989 and 11

August 1991. The other charge was that, between 29 March 1990 and
21 August 1991, he and another person engaged in money laundering
by concealing money and cheques which were known to have been
derived directly from unlawful activity. Since that time, a number
of orders have been made by different judges in the Trial Division
under the Crimes (Confiscation of Profits) Act 1989 ("the Act").
The proceedings before this Court involve three appeals in respect
of some of those orders. The Director of Prosecutions is the
respondent to all appeals, one of which was instituted by Mr Page
and his wife, Lynn Maree Page, and the other two of which were
instituted by Mrs Page. Mr Page is an additional respondent to one
of the appeals instituted by Mrs Page, although Mr and Mrs Page
were both represented before this Court by the same counsel and

solicitors.

In all appeals, the orders which are attacked relevantly

concerned real property of which Mr Page was then the registered
proprietor, which had been the subject of transactions, or
purported transactions, between Mr Page and his wife.

On 19 September, 1991, Mr and Mrs Page executed a Deed of Loan

by which Mr Page acknowledged that he had received loans from Mrs
Page which he was obliged to repay on demand and that he was also
obliged to pay interest and to secure his indebtedness to her. On
the same day, he provided a Bill of Mortgage over land at Hedges
Avenue, Mermaid Beach by way of security. The Mermaid Beach land
was then subject to other securities in favour of Farrow Mortgage
Services Pty. Ltd. to secure a large debt owed by Mr Page and an
associated company. The debt to Farrow Mortgage Services Pty. Ltd.
was satisfied shortly afterwards when a Sydney hotel was sold and
the security in favour of Farrow Mortgage Services Pty. Ltd. over
the Mermaid Beach land was released on 8 October 1991. The Bill of
Mortgage from Mr Page to Mrs Page over that land was registered a
week later, on 15 October 1991.

At that time, although a number of restraining orders under

the Act had been made with respect to property of Mr Page, none
related to the Mermaid Beach land. However, orders which did so
were made by Mackenzie J. on 18 October 1991 and Ambrose J. on 22nd
November 1991. Subsequent applications by the Director of
Prosecutions and by Mrs Page led to further orders by Helman AJ. on
16 April 1992 which are the subject of two of the present appeals,
in one of which Mr and Mrs Page are appellants and in the other of
which Mrs Page is the appellant and Mr Page is a respondent.

At the time of the proceedings before Helman AJ, the Mermaid

Beach land was the subject of a contract of sale entered into in February this year between Mr Page as vendor and purchasers named Ross and Vicki-Anne Graham. The price was $500,000.00, and the contract was expressed to be subject to the consent of the Director of Prosecutions. That consent was given on 12 March 1992, subject to a reservation by the Director in relation to the disposition of the proceeds of the sale.

It is unnecessary for present purposes to spell out in detail
the nature of the respective applications made to Helman AJ by the
Director of Prosecutions and Mrs Page. In effect, the Director's
application was for an order which would permit the contract of
sale of the Mermaid Beach land from Mr Page to the Grahams to
proceed on condition that all funds realised by the sale, with the
exception of legal and statutory fees, be retained in Mr Page's
solicitors' trust account until it was determined whether, having
regard to the mortgage in favour of Mrs Page, those funds were
available to meet any pecuniary penalty order which might be made
under the Crimes (Confiscation of Profits) Act. Mrs Page sought the
dissolution of the then existing restraints in respect of the
Mermaid Beach land and a determination that the proceeds of sale
should be accounted for to her as mortgagee with any surplus paid
to Mr Page's solicitors to be held by them in trust to abide the
further order of the Court. Plainly, there would be no surplus,
since the principal secured by the mortgage is said to be
$700,000.00, which is well in excess of the sale price.

Apart from an undertaking by the Director of Prosecutions to

"pay to any person adversely affected by the making or operation of
this order such damages, if any, and costs, if any, as may have
been incurred by the making or operation of this order as the court
deems appropriate", the material orders made by Helman AJ on 16
April 1992 "until further order" were as follows:
"5. In relation to real property at 51-53 Hedges Avenue, Mermaid

Beach and being Lot 2 on Registered Plan 41193, County of
Ward, Parish of Gilston, being described as Volume 1636, folio
154, that the Respondent, Terence Anthony Page, be permitted
to sell his land pursuant to the contract with Mr and Mrs
Graham dated Twenty-sixth day of February 1992 (consent in
writing having been provided by the Director of Prosecutions
on the Sixth day of April 1992) on condition that all funds
realised by this sale (with the exception of legal and
statutory fees relating to this sale) are to be retained in
the trust account of Fitz-Walter, Cull and Walker, until the
issue as to whether those funds are available to meet any
pecuniary penalties or forfeiture orders which may be made and
having regard to the mortgage in favour of Lynn Maree Page,
has been determined. The funds will remain there "without
prejudice" to her right to establish her claim to the monies.

...

9.    ... in the cases of mortgages held by the Respondent's wife Lynn Maree Page, her exercise of any rights as such mortgagee shall be subject to the consent in writing of the Director of Prosecutions (which shall not be unreasonably withheld)."

The orders made by Helman AJ and the appeals brought from them

have, to some extent at least, been overtaken by events. The sale
by Mr Page to Mr and Mrs Graham did not proceed. This Court was
informed of a further sale of the Mermaid Beach land by Mrs Page as
mortgagee. By an exchange of correspondence, it was agreed between
the Director of Prosecutions and Mr and Mrs Page that that sale
could proceed provided that the proceeds are held in a trust
account in the name of the Director and one or both of the partners
in the firm of solicitors acting for Mr and Mrs Page and are not
utilised for any purpose until:
"(a) the determination of any pecuniary penalty order in the event

of conviction (if no conviction they will of course be
released) or

(b)  a finding by the Court of Appeal that the Order of Helman AJ was invalid in this respect and special leave is not sought by me or, if sought, is refused."

Two of the letters exchanged were placed before the court.

One, written by the Director of Prosecutions and dated 15 July 1992
which contained the paragraphs (a) and (b) quoted above, also
included the following paragraphs,which were apparently accepted by
Mr and Mrs Page in the response from their solicitors dated 22nd
July which Mr and Mrs Page also signed:

"... my consent is not to be taken as an acceptance of Mrs Page's

rights under the `mortgage', nor that she has a present
entitlement to the funds. It is intended, as you are aware,
to argue that, mortgage or not, the property and now the
funds, are under Mr Page's effective control; and that the
mortgage came into existence in an attempt to avoid predicted
Orders.

By the same token I accept Mrs Page's right to argue her contrary

position on the hearing of the pecuniary penalty order."

The court was informed that, in accordance with the

arrangement between the parties, the proceeds of sale of the
Mermaid Beach land are currently held in trust. The two appeals
from orders of Helman AJ. are apparently being prosecuted with the
intent that, if successful and the orders of Helman AJ of 16 April
1992 are set aside, Mrs Page will be able to obtain payment of the
trust fund, although the Director did not concede that that would
follow.

Before further consideration of the appeals from the orders

made by Helman AJ on 16 April 1992, it is convenient to note
briefly the circumstances with respect to the third appeal which
was argued before this court at the same time.

Mr Page is also the owner of a property at Bundall which is
the site of the family home. An order made by Mackenzie J. on 18
October 1991, which included an undertaking as to damages by the
Director of Prosecutions in similar terms to the undertaking
recorded in the orders made by Helman AJ. on 16 April, 1992
restrained the sale of the Bundall property except with the prior
consent in writing of the Director of Prosecutions, which was not

to be unreasonably withheld.

On 4 March 1992, Mr Page's solicitors were notified by the

Director that he consented to an auction of the Bundall property on the basis of a draft contract which had been provided, one of the terms of which was that a sale was subject to his consent. An auction was conducted on 13 March, at which the successful bidder was Mrs Page. A contract was entered into that day between Mr and Mrs Page, but the Director has not given his consent to the sale.

Under the order made by Mackenzie J. on 18 October 1991, the

restraint in respect of the Bundall property was only in force
until 14 April 1992. A further order made by Helman AJ on 16 April
renewed the restraint but did not contain a provision permitting a
sale subject to the consent of the Director. However, the third
appeal is not brought from either of those orders. On 10 and 11
June 1992, Mackenzie J. heard a further application by Mrs Page
which he dismissed. In substance, that application sought an order
authorising the completion of the contract for the sale and
purchase of the Bundall property made between Mr and Mrs Page on or
about 13 March 1992 and that the proceeds:

"... be accounted to:

(a) The National Australia Bank Ltd. (to the extent of any money

due and owing under certain first ranking bills of
mortgage Registered Number J580594Y against Lot 6 and

Registered Number J239577D against Lot 5);

(b) The solicitors for Terence Anthony Page, Messrs. Fitz-Walter,

Cull and Walker, as to any surplus to be held for those solicitors in a trust account established by them for that purpose, to abide the further order of the court."

Once again, it was plain that there would be no surplus. The mortgage debt exceeded 1.6 million dollars, the agreed value of the property, while the purchase price payable by Mrs Page under the contract was 1 million dollars.

It was not argued that the orders made by Mackenzie J. on 18

November 1991 and Helman AJ on 16 April 1992 in respect of the Bundall property should not have been made. The appellant's basic contention on the third appeal was that, in the circumstances, the sale of that property by Mr Page to Mrs Page should have been permitted to proceed with the entire proceeds paid to the mortgagee bank, which had agreed to the sale despite the shortfall between the purchase price and what it is owed under its mortgage, its lack of any other security and the substantial discrepancy between the price payable by Mrs Page and the agreed valuation.

However, the attack made upon the orders made by Helman AJ
with respect to the Mermaid Beach property was not limited to a
submission that the orders should not have been made but extended
to a contention that such orders were beyond the power given the
court by the course to some of the provisions of that Act provides
the most appropriate starting point for consideration of the
competing arguments.

By section 6 of that Act, if a person has been convicted of a

serious offence (as defined in section 3), a pecuniary penalty
order or a forfeiture order in respect of particular property may
be made. It was not suggested that a forfeiture order might be
sought in respect of particular property owned by Mr Page but, if
he is convicted, the Director proposes to seek a pecuniary penalty
order. Subsections 13(2) and (3) provide that the amount payable
by a person to the Crown under a pecuniary penalty order is to be
taken for all purposes to be a debt due and owing by that person to
the Crown and that a pecuniary penalty order may be enforced as if
it were an order made by the court in civil proceedings instituted
by the Crown against the person concerned to recover a debt due by
that person to the Crown.

By sub-section 13(1), the amount of a pecuniary penalty order

is required to be related to the value of benefits derived by the
person as a result of committing the offence. By subsection 72(1),
in assessing the value of benefits derived by a person from the
commission of an offence, the court may treat as property of the
person any property that, in the opinion of the court, is subject
to the effective control of that person. Further, subsections 72(2)
and (3)(a) provide:

"(2) On application by an appropriate officer, a court may, if in

its opinion particular property is subject to the effective
control of a person against whom the court has made a
pecuniary penalty order, make an order declaring that the
whole, or a specified part, of that property is available to
satisfy the pecuniary penalty order."

(3) Where a court declares that property is available to satisfy a pecuniary penalty order ...

(a) the order may be enforced against the property as if the

property were property of the person against whom the

order is made ... ."

Sub-sections 3(7) and (8) explain the concept of property

which is under the effective control of a person. Those subsections

state:

"(7) Property, or an interest in property, may be subject to the

effective control of a person within the meaning of this Act

whether or not the person has -

(a)a legal or equitable estate or interest in the property;

(b)a right, power or privilege in connexion with the property.
(8)Without limiting the generality of any other provision of this

Act, in determining -

(a)whether or not property, or an interest in property, is subject

to the effective control of a person;

or

(b)whether nor not there are reasonable grounds to believe that

property, or an interest in property, is subject to

the effective control of a person,

regard may be had to -

(c)shareholdings in, debentures over or directorships of a company

that has an interest (whether direct or indirect) in

the property;

(d)a trust that has a relationship to the property;

and

(e)family, domestic and business relationships between persons

having an interest in the property, or in companies
of the kind referred to in paragraph (c) or trusts
of the kind referred to in paragraph (d), and other
persons."

Part III of the Act deals with restraining orders. So far as presently material, sections 17 and 19 provide:

"17. Restraining Orders. (1) If a person has been, or is about to

be, charged with, or has been convicted of, a serious offence,
an appropriate officer may apply to the Supreme Court for an

order in respect of one or more of the following:-

(a)specified property of that person;

(b)all the property of that person, including property acquired by

that person after the making of the order;

...

(2) An application under subsection (1) made in respect of a

person who has been, or is about to be, charged with a serious
offence shall be supported by an affidavit of a member of the

police force stating that the member believes -

(a)that the person charged, or about to be charged, with the

serious offence, committed the offence;

(b)in the case of an application in respect of specified property -

...

(ii)that the property is the property of the person charged, or

about to be charged, and that a pecuniary penalty order maybe made if the person is convicted of the offence;

and

(c)in the case of an application in respect of all property of a

person, that a pecuniary penalty order may be made

if the person is convicted of an offence,

and setting out the grounds on which the member holds those

beliefs.

(3) The Supreme Court may make a restraining order in respect of

property whether or not there is any risk of the property
being disposed of, or otherwise dealt with, in such manner as

would defeat the operation of this Act.

(4) The applicant for an order under this section shall give

notice of the application -

(a)to any person whose property is the subject of the application;

and

(b)to any other person whom the applicant has reason to believe has

an interest in any property that is the subject of

the application.

...

(6) Any person whose property is the subject of the application,

and any other person who claims an interest in any such property, are entitled to appear and to be heard at the hearing of the application.

...

(8) On an application under subsection (1), the Supreme Court may,

if it considers that, having regard to the matters contained
in the affidavit referred to in subsection (2), there are
reasonable grounds for holding those beliefs, or upon being
satisfied that the person has been convicted of the serious
offence, by order -

(a)direct that the property specified in the order is not to be

disposed of, or otherwise dealt with, by any person,
except in such manner and in such circumstances (if

any) as are specified in the order;

...

(10) A restraining order against a person's property may be made

subject to such conditions as the Supreme Court thinks fit ...

.

...

(12) The Supreme Court may refuse to make a restraining order if

the Crown, or the applicant on behalf of the Crown, refuses or

fails to give to the court such undertaking as the court
thinks appropriate concerning the payment of charges or costs,
or both, in relation to the making and operation of the order.

... ."

"19. Further orders. (1) The Supreme Court may, when it makes

a restraining order or at any later time -

(a)on application made to it, make such orders in relation to the property to which the restraining order relates or with respect to the operation of the restraining order as it considers just;

(b)on application made to it or without any application, make

an order authorizing another court -

(i)to make an order setting aside the restraining order;

or

(ii)to make other orders in relation to the operation of the

restraining order,

to the extent and in the circumstances specified in the order

of the Supreme Court.

(2) An order under subsection (1) may be made on the

application of -

(a)the applicant for the restraining order or any other person who could have applied for the restraining order;

(b)the person whose being charged with an offence

was relied upon for the purpose of making

the restraining order;

(c)a person to whose property the restraining order

relates;

. . .

or
(e)any other person who obtains the leave of the Supreme

Court to make application.

(3) The applicant for an order under subsection (1) shall

give notice of the application to each other person who

could have applied for the order.

(4) Without limiting the generality of subsection (1), the

Supreme Court may make -

(a)an order varying the property to which the restraining

order relates;

. . . "

Restraining orders are also materially referred to in

subsection 72(3)(b), which provides:

"(3) Where a court declares that property is available to satisfy a pecuniary penalty order ...

(b) a restraining order may be made in respect of the property as

if the property of the person against whom the order is

made.:

While section 17 permits a restraining order to be made in

respect of a person's property before that person has been charged
(but is about to be charged), after he or she has been charged or
after conviction, a restraining order in respect of other property
which is under that person's effective control may only be made
pursuant to subsection 73(3)(b) after conviction. A restraining
order in respect of property which is under a person's effective
control is relevantly only permissible after a declaration that
such property is available to satisfy a pecuniary penalty order,
such a declaration can only be made after a pecuniary penalty order
has been made, and a pecuniary penalty order can only be made after
conviction. There was therefore no power to make a restraining
order pursuant to subsection 73(3)(b) in respect of Mrs Page's
mortgage over the Mermaid Beach land on the basis that her interest
as mortgagee was property over which it might, after conviction, be
held that Mr Page had effective control.

However, it does not follow that Mrs Page's property interest

and rights as mortgagee could not be adversely affected by a
restraining order in respect of the Mermaid Beach property which
was owned by Mr Page.

It was not argued that the prerequisites to an order under

subsection 17(8)(a) had not been satisfied. Pursuant to that
provision, the court could direct that the Mermaid Beach land not
be "disposed of, or otherwise dealt with, by any person except in
such manner and in such circumstances (if any) as are specified in
the order ... ". Subsections (4) and (6) of section 17 and section
18 clearly confirm that persons other than a property owner are
intended to be encompassed by the expression "any person", which is
obviously wide enough to include a mortgagee. There is no
sufficient reason for artificially restricting the ambit of the
language used to arrive at a contrary conclusion.

While an order restraining the exercise of a mortgagee's power

of sale with respect to the property of a person against whom a
pecuniary penalty order might later be made might not ordinarily be
appropriate, that is a not a matter affecting the existence of the
power to make such an order, but rather concerns the correct
exercise of the power in the particular case. That is the next
point for consideration.

In the reasons which he gave for his judgment, Helman AJ.

summarised the respective submissions before him as follows:

"Mr Lennon QC, on behalf of the Pages, argued that the

evidence before me shows that the mortgage in favour of
Mrs Page was executed in good faith as a genuine business
transaction. There is no proper basis, he submitted, for
my granting the Director's application, which seeks to
interfere with the property rights of Mrs Page who, on
the evidence, has advanced large sums of money to her

husband.

Ms Kiefel QC, however, submitted, inter alia, that the

sequence of events I have related strongly suggests that
effective control of Lot 2 has always been and remains
with Mr Page and that the mortgage was a mere device to
put some of his property out of the reach of orders made

under the Crimes (Confiscation of Profits) Act."

Later, he said:-

"On the evidence before me it would seem certainly arguable

from the sequence of the events in question that the
mortgage transaction was a sham designed to evade the
effect of the Act and, in view of that, and since there
is power to make the order sought by the Director
deriving from s.17(8)(a) and s.19(1)(a), I propose making

it."

The references to "device" and "sham" raise a different,

perhaps narrower issue than whether or not Mrs Page's mortgage was
under Mr Page's effective control. The latter might be true
although the mortgage was "genuine", as submitted by counsel for Mr
and Mrs Page: see ss.3(8)(a) and (e).

The basis for that submission was evidence on behalf of Mr and Mrs Page, including evidence on some aspects from other persons, which was directed to establishing a series of loans from Mrs Page to Mr Page and the arrangements made between them for repayment and, in the meantime, for securing Mr Page's indebtedness to Mrs Page. According to that evidence, a number of loans were made between August and December 1984, with a further large loan of more than half a million dollars in October 1987.

No attempt was made to document any agreement for repayment or

security until the Deed of Loan executed on 19 September 1991.
Prior to that time, Mr Page had been charged. A letter to the
Director of Prosecutions from a member of the firm of solicitors
acting for Mr and Mrs Page said that the solicitors had been
instructed to prepare loan documentation a few days prior to his
being charged but, although the solicitor swore an affidavit, he
did not depose to that fact.

In these circumstances, even if the loans were made in 1984

and 1987, there were serious issues to be tried concerning the
agreement to secure those loans and the consequential mortgage in
favour of Mrs Page, including whether or not her interest as
mortgagee and associated rights were under the effective control of
Mr Page. That being so, there is no basis for concluding that the
orders made by Helman AJ. did not give effect to the object of the
legislation or that the wide discretion which he exercised
miscarried in any way. Although an undertaking as to damages does
not justify the imposition of a restraint without sufficient basis,
such an undertaking may be a significant consideration in
circumstances such as the present in which, as matters stood before
Helman AJ., the potential disadvantage to Mrs Page fell to be
measured only by reference to some delay in the receipt of a
substantial sum of money and postponement of its immediate
investment.

It was not suggested before this Court that, at the time of

the proceedings before Helman AJ., there had been any reference to
the possible loss of a particular investment opportunity by Mrs
Page as result of being temporarily deprived of the money.
However, during the present appeals reference was made to Mrs
Page's possible use of the money to complete her purchase of the
Bundall property from Mr Page. That could not be relevant unless
she succeeded in the third appeal.

The judgment of Mackenzie J. delivered on 13 July 1992

referred to some of the circumstances associated with the Bundall
transaction, including the substantial difference between the
agreed value and the price payable by Mrs Page, the obligation for
her to pay only a one percent deposit and her lack of funding to
complete the transaction, at least unless she is able to use the
proceeds of sale of the Mermaid Beach property. Further, there was
evidence that, on Mr Page's instructions, only a "low budget"
advertising campaign had been carried out prior to the auction.

The appellant pointed to a number of circumstances, including

the unsuccessful attempts by Mr Page to sell the Bundall property
for a considerable period, the continued accrual of interest under
the mortgage to the bank, the continuing default under that
mortgage and the bank's willingness to discharge its mortgage in
return for payment of the price agreed to be paid by Mrs Page.

To a considerable extent, any disadvantages to Mr and Mrs Page

in not allowing the sale of the Bundall property to proceed are
counterbalanced by the undertaking as to damages which has been
given by the Director. However, that undertaking provides no
answer to the submission that the Director can have no legitimate
objection to the sale since a sale for full value would yield no
benefit to the Director because the total amount would go to the
bank as mortgagee.

Even if the Director of Prosecutions has no realistic

expectation of enforcing any pecuniary penalty order, against the
Bundall property, he has an interest in ensuring that the property
is sold for full value and that the mortgagee bank is paid out the
maximum possible amount and is left as an unsecured creditor in the
minimum possible amount. In the event that a pecuniary penalty
order is made against Mr Page and that his assets are insufficient
and he is made bankrupt, the dividend available to the Director of
Prosecutions from the distribution of his estate would be
significantly diminished if the bank continued as an unsecured
creditor for a very substantial amount, on present figures
something of the order of $600,000.

This conclusion is not affected by section 22 of the Act which

provides:
"22. Charge on property subject to restraining order. (1) If

-

(a)in reliance on a person being charged with a

serious offence, the Supreme Court has
made a restraining order in respect of all
or some of the property of that person;

(b)in reliance on the conviction of that person for that

offence a court subsequently makes a pecuniary penalty order against that person,

then there is created, on the making of the pecuniary penalty

order, a charge on all the property to which the
restraining order applies to secure the payment to the

Crown of the pecuniary penalty.

(2) A charge created by the making of a pecuniary penalty

order ceases to have effect if any of the following

occurs:-

(a)the pecuniary penalty order is discharged;

(b)the pecuniary penalty is paid;

(c)the property is disposed of under an order made under

section 24;

(d)the property is disposed of with the consent of the

Supreme Court or, if the Public Trustee has
been directed to take control of and manage the
property, with the consent of the Public
Trustee;

(e)the property is sold to a purchaser in good faith for value who, at the time of the purchase, had no notice of the charge.

(3) A charge created by the making of a pecuniary order -

(a)is subject to every encumbrance to which the property so charged
was subject immediately before the pecuniary penalty
order was made but has priority over all other

encumbrances;

and

(b)subject to subsection (2), remains on the property despite any

disposal of the property.

(4) A charge created on property by the making of a pecuniary

penalty order may be registered under any law of Queensland
that provides for registration of charges on property of that

description.

(5) If the charge is registered under subsection (4), a person

who purchases the property after the registration of the
charge is, for the purposes of subsection (2)(e), to be taken

to have had notice of the charge."

As the terms s.22 make clear, a charge only arises after a

pecuniary penalty order is made. Provision for registration of
orders is also to be found in ss. 23 and 73, but neither section
affects the issues presently falling for resolution.

Mackenzie J. said in his reasons for judgment:

"In my opinion, there are factors associated with the

transaction that give rise to genuine concern. That
being so, and having regard to the situation as it
prevailed at the time when the Director was asked for his
consent to the transaction and as it has emerged
subsequently, I am not prepared to find on the evidence,
as it stands, that it was unreasonable for the Director
to withhold his consent."

It has not been demonstrated that his Honour was wrong in this

conclusion and no basis has been shown to this Court to interfere.
On the contrary, there is ample basis for the court to restrain
the course sought by Mr and Mrs Page, which might see the proceeds
of sale of the Mermaid Beach land used by Mrs Page to obtain
unencumbered title to the Bundall property, which she could then
dispose of if she chose in circumstances in which there is an a
serious dispute between the parties concerning whether property
interests transferred to Mrs Page by Mr Page remain under his
effective control.

While the orders made by Helman AJ. affecting the Mermaid

Beach property might not be appropriate in form, there was no separate argument addressed to this Court on that footing and, as events have transpired, if the appeals fail the form of these orders is of little importance since the Mermaid Beach land has been sold and as the parties' agreement determines what is to be done with the proceeds of sale.

The order of the Court, therefore, is that the appeals be

dismissed, with costs to be taxed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 72 of 1992

BETWEEN:

TERENCE-ANTHONY PAGE and

LYNN MAREE PAGEAppellants

- and -

THE DIRECTOR OF PROSECUTIONS

Respondent

Appeal No. 73 of 1992

BETWEEN:

LYNN MAREE PAGE

Appellant

- and -

THE DIRECTOR OF PROSECUTIONS

First Respondent

- and -

TERENCE ANTHONY PAGE

Second Respondent

Appeal No. 149 of 1992

BETWEEN:

LYNN MAREE PAGE

Appellant

- and -

THE DIRECTOR OF PROSECUTIONS

Respondent

Fitzgerald P.

Davies JA.

Lee J.

Judgment of the Court delivered on the 30th day of September, 1992