Re Neil Cameron Chalmers
[2009] VSC 605
•10 December 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 1507A of 2006
IN THE MATTER of the Confiscation Act 1997
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IN THE MATTER of an offender, Neil Cameron Chalmers
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IN THE MATTER of an application by ADRIAN RAYMOND MORGAN and RODNEY FRANCIS COOPER as ADMINISTRATORS of the ESTATE OF SHIRLEY LIANG
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 December 2009 | |
DATE OF RULING: | 10 December 2009 | |
CASE MAY BE CITED AS: | Re Neil Cameron Chalmers | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 605 | |
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CIVIL – Application to vary confiscation order to facilitate sale of jointly owned property – Order respecting offender’s continuing claim to equity in the property – Order for signature of necessary documents - Confiscation Act 1997 s 18
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APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr D Boyall | Mason Sier Turnbull Lawyers |
| For the Respondent | In person via Videolink | |
| For the Director of Public Prosecutions Victoria | Ms A Duran | Office of Public Prosecutions |
HIS HONOUR:
In this matter, application is made on behalf of the administrators of the estate of Shirley Liang, deceased, for further orders facilitating the sale of a property known as Unit 127/79 Whiteman Street, Southbank, Victoria being the property more particularly described in Certificate of Title Volume 10539, Folio 673. The property is currently registered in the names of the administrators and Mr Neil Chalmers as tenants-in-common in equal shares. It is subject to a mortgage to the Westpac Banking Corporation. Earlier this year, Mr Chalmers was convicted by a jury of 12 of the offence of murder of Ms Liang, but he has, since that date, appealed his conviction to the Court of Appeal. That appeal remains to be determined and has not currently been fixed for hearing.
In December 2007, Byrne J made orders inter alia granting the administrators letters of administration of the estate of Ms Liang, subject to various limitations. On 18 August 2006, Teague J had made a restraining order pursuant to s 18 of the Confiscation Act which prohibited any dealings with the property. On 27 July 2009, I made orders by consent varying the terms of the restraining order made by his Honour Teague J, and permitting the administrators to sell or lease the property. The terms of that order are of real significance to my view in relation to this application.
In particular, the order provided that upon completion of the sale of the property, the proceeds of sale be disbursed as follows:
(a) in payment of all reasonable costs, charges and expenses incurred in the sale of the property, but not including any costs, charges or expenses associated with any proceeding or order under the Confiscation Act 1997;
(b) in payment of any moneys owing to Westpac Banking Corporation as mortgagee pursuant to Registered Mortgage No. AD345250D.
The order further provided one half of the balance of the proceeds of the sale of the property be paid by bank cheque to the Asset Compensation Office to be held on trust pending the final determination of this matter, and the other half of the balance of the proceeds of sale be paid by bank cheque to the solicitors for the administrators of the estate of Shirley Liang.
It can be seen that although the administrators were authorised to sell the property, the order specifically required and contemplated that half of the balance of the net proceeds of sale in which Mr Chalmers might claim a continuing interest must be held on trust pending the final determination of this matter.
Ms Duran, who appears before me today on behalf of the Director of Public Prosecutions, confirms that the intent of the order was that the half interest in which Mr Chalmers might claim a continuing interest be held on trust on his behalf until the outcome of his appeal is known, and in effect, his culpability for Ms Liang's death has finally been determined. She further confirmed that the Minister, notwithstanding a forfeiture order was made by me on 3 April 2009, would not seek to enforce that order until the outcome of the appeal was finalised.
Mr Boyall, who appears as solicitor for the administrators of the estate, seeks a variation of the order previously made by me to allow the administrators to execute all documents on behalf of Neil Cameron Chalmers necessary to sell by public auction or private treaty after attempted public auction for a price not less than $550,000 and transfer the property located at Unit 127/79 Whiteman Street, Southbank, Victoria, being the property more particularly described in Certificate of Title Volume 10539 Folio 673. He also seeks consequential orders.
The order is sought because of the practical difficulties involved in having Mr Chalmers attend the auction in order to execute contract documentation and because a s 32 vendor’s statement has not been executed by Mr Chalmers. Mr Boyall also draws attention to the fact that the property was locked up for a number of years as a crime scene. No rent was able to be received in respect of it as a result and the estate of Ms Liang has been the sole contributor towards ongoing mortgage payments in relation to the premises for a number of years. In consequence he submits that the sale is not only desirable but has become a matter of relatively urgent necessity.
Mr Chalmers who has had previous communications with Mr Boyall has explained to me the difficulties he has had in responding to Mr Boyall's application. He initially received notice of the substance of the application via facsimile transmission on the Monday before last at 9:00 am. He then sought to ring the solicitor who had previously acted for him at his trial and who had acted for him at the time of consent, to the variation order which I made in July this year. He was unable to speak to his solicitor. On Tuesday, he received the original documentation by mail which had previously been copied to him by facsimile transmission. He again sought unsuccessfully to contact his solicitor. He was concerned that the application might somehow affect his appeal to the Court of Appeal.
On Wednesday, he again sought to contact his solicitor but was unable to get through to her, until 5:30 pm. At that time, she advised him that she was no longer funded by Legal Aid and that she was not in a position to advise him in relation to the current application. On Thursday 3 December 2009, Mr Chalmers wrote to the solicitor for the administrators of the estate and stated in part:
It is not that I do not wish to comply with your request. However, I do not feel that I can sign any documentation without legal advice. Had you sent the documentation to me back in October 2009 or in early November, when the “exclusive auction authority” was signed, it would have provided me at least, with the opportunity to seek legal advice in this matter. However, you have sent me the documents and contract at the last minute and expect me to sign then, which is wrong.
It is difficult not to have some sympathy with Mr Chalmers' position when regard is had to the underlying realities of prison life. Thereafter Mr Chalmers received further correspondence from the Director of Public Prosecutions in relation to the present application and arrangements were made through the Prothonotary of this Court for him to appear before me today via telecourt link. Having heard Mr Boyall's application this morning and having had the nature of the current orders in the proceeding explained to him by me, Mr Chalmers submitted to me firstly that he understood that the flat needed to be sold and he desired that proceeds from the sale go into trust for Sasha, Ms Liang's daughter.
Next he was happy to comply with an appropriate order but wanted certain matters clarified. He stated to me that he did not believe any part of his share of the property should be confiscated. He submitted that the event that occurred between Ms Liang and himself at the flat was not analogous to the use of premises by a drug manufacturer. He therefore believes that a mistake has been made in relation to the order for forfeiture of the property. He further expressed to me concern that nothing done today affect his appeal, and indicated that otherwise he was happy to sign the necessary documentation.
It seems to me that I should make an order of the sort sought by Mr Boyall. Firstly the Court has previously ordered that the property be sold and that the net proceeds be divided in effect between the interests of the tenants-in-common. Mr Chalmers himself understands and accepts the need for a sale; indeed, he supports the intent that the proceeds of sale should go towards Ms Liang's child who is, as I understand it, is intended to be benefited from the estate.
Next, I am satisfied that the order sought will not in any way, affect the outcome of Mr Chalmers' appeal and conversely, the orders which I have previously made and which I propose to make today, are expressly intended to leave for final resolution the question of Mr Chalmers' ongoing entitlement to an interest in the property.
Finally, I do not accept that I should decline to make the orders because of the belief expressed by Mr Chalmers today that a forfeiture order, with respect to his interest should not have been made. The forfeiture order, which I have previously made in the matter was made at a time when Mr Chalmers was represented by senior counsel but more significantly, the order which I am asked to vary today was expressly made by consent and made in the context of Mr Chalmers' appeal, recognising that his rights were not prejudiced.
It seems to me that having regard to this fundamental aspect of the order, it is appropriate to vary it further. The variation which is proposed is essentially one of mechanism. It seems to me that the balance of convenience favours a facilitative order, in respect of the sale and I propose to make such an order providing an express mechanism for the execution of necessary documents.
I have required in discussion, with the solicitor for the administrators of the estate, that that order be expressed to require public auction in the first instance and to stipulate an appropriate reserve price. It seems to me that subject to these conditions, and having regard to the affidavit evidence relating to background circumstances relating to the proposed sale, that the order should be made in order to facilitate the sale and that it will not result in any material prejudice to Mr Chalmers.
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