Permanent Custodians Ltd v The State of Western Australia

[2012] WASC 184

PERMANENT CUSTODIANS LTD -v- THE STATE OF WESTERN AUSTRALIA [2012] WASC 184

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 184
Published:	01/06/2012
Case No:	CPCA:34/2011	Heard:	21 MAY 2012
Coram:	HALL J	Delivered:	21/05/12
No of pages:	4	Judgment Part:	1 of 1
Result:	Objection dismissed Confiscation order made Interest of mortgagee to be paid out of sale proceedings
Category:	B
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Parties:	PERMANENT CUSTODIANS LTD THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal property confiscation Confiscation order Interest of mortgagee to be paid out
Legislation:	Nil
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : PERMANENT CUSTODIANS LTD -v- THE STATE OF WESTERN AUSTRALIA [2012] WASC 184 CORAM : HALL J HEARD : 21 MAY 2012 DELIVERED : 21 MAY 2012 PUBLISHED : 1 JUNE 2012 FILE NO/S : CPCA 34 of 2011 BETWEEN : PERMANENT CUSTODIANS LTD

Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal property confiscation - Confiscation order - Interest of mortgagee to be paid out

Legislation:

Nil

Result:

Objection dismissed

Confiscation order made
Interest of mortgagee to be paid out of sale proceedings

(Page 2)

Category: B

Representation:

Counsel:

Applicant : No appearance
Respondent : Ms F A Humphries

Solicitors:

Applicant : No appearance
Respondent : Director of Public Prosecutions (WA)

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

Nil

(Page 3)

1 HALL J: On 17 June 2011, the plaintiff, Permanent Custodians Ltd, filed an objection to freezing notice WAPNF 090139 pursuant to s 79 of the Criminal Property Confiscation Act 2000 (WA) (CPCA). The objection specifically related to the plaintiff's right and interest as mortgagee in respect of a loan secured by a mortgage over real property that was subject to the freezing notice.

2 The property in question is a residential property in Lesmurdie jointly owned by Bradley John Fletcher and Tricia Ellen Fletcher. Mr Fletcher was charged with growing cannabis in a shed at the property. A freezing notice issued on the basis that the property was crime used: see s 146 CPCA. Mrs Fletcher objected to the confiscation of the property. Whilst Mr Fletcher admitted to making criminal use of the property he supported Mrs Fletcher in her claim that confiscation would cause her undue hardship. The hearing of the objection occurred on 20 June 2011. On 24 June 2011 Murray J made orders dismissing the objection and ordering the confiscation of the Lesmurdie property but ordering under s 82(5) of the CPCA that when the property was sold Mrs Fletcher was to be paid an amount equal to her one-half share as joint tenant.

3 At the time that the objection was dealt with by Murray J the objection filed by the plaintiff on 17 June 2011 was not before the court. The State was conscious of the interest of the plaintiff and thus sought only that Mr and Mrs Fletcher's objections be dismissed at that stage. The State did not seek an order that the relevant property be confiscated as it did not wish to compromise the rights of the mortgagee. In fact, confiscation cannot occur pursuant to s 7(2)(a) of the CPCA while an objection is on foot.

4 The order made by Murray J that the property was confiscated was not extracted. On 19 April 2012 E M Heenan J made an order that the orders made by Murray J on 24 June 2011 not having been perfected be recalled and be amended to deal with a matter inadvertently omitted in the course of proceedings on that occasion. E M Heenan J then made orders dismissing Mr and Mrs Fletcher's objection and allowing for Mrs Fletcher to be paid an amount equal to her one-half share as joint tenant when the property is sold. No order as to confiscation was made by E M Heenan J. This allowed for the objection by the plaintiff to be dealt with.

5 The plaintiff has filed an affidavit sworn by Shelley Jane Merenda sworn on 17 June 2011 in support of its objection. Ms Merenda deposes that the plaintiff has a registered mortgage over the Lesmurdie property.

(Page 4)

That mortgage originally secured a loan in the amount of $240,000. A further loan of $157,000 was subsequently approved and partially drawn down. Mr and Mrs Fletcher, as mortgagors, currently owe the plaintiff an amount of $322,042.19.

6 The parties have consented to orders being made that the plaintiff's objection be dismissed, the property be confiscated and that pursuant to s 82(4) and s 82(5) of the CPCA the plaintiff be paid the amount due and owing to the plaintiff as at the date of settlement pursuant to its rights under the registered mortgage when the land is sold. I am satisfied that it is appropriate to make those orders.