Parker v Select Civil Pty Ltd

[2019] NSWSC 140

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Ward [2019] NSWSC 140

Hearing dates:

20 February 2019

Date of orders:

20 February 2019

Decision date:

20 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 Katie Elaine Bourne 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 Cody Ronald Ward, including the interest in property in the property specified in Schedule One, Schedule Two, and Schedule Three hereto.

 

2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Cody Ronald Ward shall be examined on oath before a Registrar of the Court concerning his affairs, including the nature and location of any property in which he has an interest.

 

3. Leave is granted to the Plaintiff to obtain from the Registry dates for the examination ordered in Order 2 above.

 

4. Pursuant to section 10B(2) of the Criminal Assets Recovery Act 1990 the New South Wales Trustee and Guardian shall take control of all the interest of Cody Ronald Ward in the property specified in Schedule Two hereto.

 

5. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Cody Ronald Ward shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Cody Ronald Ward, a statement verified by oath of Cody Ronald Ward setting out the particulars sought in Schedule Four hereto.

 

6. Liberty is granted to the Plaintiff and Cody Ronald Ward to apply on three (3) days’ notice.

 

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

 

8. These proceedings be listed for mention before the Common Law Registrar at 9:00am on Monday, 27 May 2019.

 

9. 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 80 in Deposited Plan 709342 at Callala Bay, Local Government Area of Shoalhaven, Parish of Wollumboola, County of St Vincent, also known as 44 Sydney Avenue, Callala Bay, New South Wales 2540 and registered in the name of Cody Ronald Ward as sole owner.

 

2. 2002 Mitsubishi Evo 7 motor vehicle with registration number CZV43B and registered in the name of Cody Ronald Ward.

 

3. 2018 Elf Trailer motor vehicle with registration number TF26GV and registered in the name of Cody Ronald Ward.

 

4. 2009 Mitsubishi Lancer motor vehicle with registration number BE64DM and registered in the name of Cody Ronald Ward.

 

5. Funds held in the Commonwealth Bank of Australia bank account number 258510678581 in the name of Cody Ronald Ward.

 

6. Funds held in the Commonwealth Bank of Australia bank account number 716721875636 in the name of Cody Ronald Ward.

 

7. Funds held in the Commonwealth Bank of Australia bank account number 258510943189 in the name of Cody Ronald Ward.

 

SCHEDULE TWO

 

1. Cash in the amount of approximately $14,320 seized by New South Wales Police Force on 14 February 2019 from a motor vehicle occupied by Ward during his arrest.

 

2. Cash in the amount of approximately $16,000 seized by New South Wales Police Force on 14 February 2019 during the execution of a search warrant at 101 Quay Road, Callala Beach, New South Wales 2540.

 

3. Cash in the amount of approximately $15,830 seized by New South Wales Police Force on 14 February 2019 during the execution of a search warrant at 1/17 Superb Crescent, Callala Bay, NSW 2540.

 

4. Cash in the amount of approximately $62,796 seized by New South Wales Police Force on 14 February 2019 during the execution of search warrant 19/2019 at 151 Queen Mary Street, Callala Beach, New South Wales, 2540.

 

SCHEDULE THREE

 

All crypto, digital or virtual currencies (including but not limited to Bitcoin, Ethereum and Litecoin) held by Cody Ronald Ward and seized by police on 15 February 2019 following the arrest of Cody Ronald Ward.

 

SCHEDULE FOUR

 

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

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)
Cody Ronald Ward (Defendant)

Representation:

Counsel:
A Bishop – Ex parte (Plaintiff)

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

File Number(s):

2019/58078

Judgment

1. The plaintiff seeks a restraining order under s10A of the Criminal Assets Recovery Act 1990 (NSW) pending the making of an unexplained wealth order under s 28A of the Act.

2. The summons is supported by an affidavit of Katie Elaine Bourne sworn 19 February 2019. Ms Bourne is an authorised officer of the plaintiff. 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.

3. Ms Bourne deposes to a suspicion that the defendant has engaged in serious crime related activity being the supply of the prohibited drug MDMA in not less than the commercial quantity, the supply of amphetamine not less than the commercial quantity, both contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), as well as the supply of prohibited drugs being LSD and Diethylamide contrary to s 25(1) of the Drug Misuse and Trafficking Act. All of those offences are serious criminal offences pursuant to s 6(2)(b) of the Criminal Assets Recovery Act.

4. Ms Bourne also deposes to a suspicion that the defendant has engaged in serious crime related activity, namely directing a criminal group and contributing to criminal activity contrary to s 93T4A of the Crimes Act 1900 (NSW). That is also a serious criminal offence pursuant to s 62G1 of the Criminal Assets Recovery Act.

5. Mrs Bourne bases her suspicion principally on reading the facts sheet prepared by the police responsible for the investigation of these offences and the arrest of the defendant. Ms Bourne contacted Detective Senior Constable Luke Bonning who is involved in the investigation of the defendant. She asked him if the information contained in the facts sheets was true and correct to the best of his knowledge and belief based on the investigation into the defendant and whether the defendant had been charged with the offences described in the facts sheet. Detective Bonning answered in the affirmative to those questions, and added that the defendant had been charged and was currently bail refused.

6. Mr Bourne provides evidence about investigations that have been made into property which she suspects is property derived from the serious criminal activity to which she has referred.

7. I have read the facts sheet and I am satisfied that the suspicion held by Ms Bourne is reasonably held.

8. The plaintiff asks that the orders be made without prior notice to the defendant. It relies on the evidence of Ms Bourne, derived from her experience working with the plaintiff, that in the absence of a restraining order it is possible for people to attempt to enter into unregistered mortgages of real estate very quickly, to dispose of motor vehicles or back date forms notifying the RMS of the disposal of those vehicles, and to dispose of funds held in bank accounts very quickly.

9. I am satisfied in the circumstances that it is appropriate that the orders should be made without prior notice to the defendant. The defendant has his rights under s10C of the Act to review these orders.

10. I note the undertaking of the solicitor for the plaintiff as to damages. On that basis I make orders in terms of paragraphs 1, 2, 4, 5, 7, 8 and 9 of the draft order signed by me and dated today, and I grant the leave and liberty in paragraphs 3 and 6.

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Decision last updated: 22 February 2019