The Commissioner for the Australian Federal Police v Robert Francis Agius

In this case, the Commissioner for the Australian Federal Police sought an order that a proposed transfer of a registered mortgage concerning a residential property would not constitute a contravention of a restraining order. The restraining order had been issued under section 17 of the Proceeds of Crime Act 2002. The court had to determine whether the transfer of the existing mortgage to a firm of solicitors, to whom the registered proprietor of the property was indebted for legal fees, would constitute a dealing within the meaning of section 338 of the Act. The terms of an earlier variation order limited the mortgage security to $350,000. The court also had to determine whether such a transfer would have a direct or indirect effect of reducing the value of the defendant's interest in the property in circumstances in which an order under the Act would be required before the property could be sold by the exercise of the mortgagee's power of sale.

The court considered the relevant provisions of the Act and the terms of the restraining order. It found that the transfer of the existing mortgage to the firm of solicitors would not constitute a contravention of the restraining order. The court held that the transfer would not have a direct or indirect effect of reducing the value of the defendant's interest in the property in circumstances in which an order under the Act would be required before the property could be sold by the exercise of the mortgagee's power of sale. The court noted that the transfer was necessary to secure the payment of legal fees owed by the registered proprietor of the property and that the limitation of $350,000 would apply to any sale of the property by the exercise of the mortgagee's power of sale.

The court further held that the transfer of the existing mortgage to the firm of solicitors would not constitute a dealing within the meaning of section 338 of the Act. The court found that the transfer was necessary to secure the payment of legal fees owed by the registered proprietor of the property and that it would not have a direct or indirect effect of reducing the value of the defendant's interest in the property. The court noted that the transfer was not a disposal of the property or an interest in the property and that it did not amount to a dealing within the meaning of the Act.

The court made an order that the transfer of the existing mortgage to the firm of solicitors would not constitute a contravention of the restraining order and that it would not constitute a dealing within the meaning of section 338 of the Act. The court also noted that the limitation of $350,000 would apply to any sale of the property by the exercise of the mortgagee's power of sale and that an order under the Act would be required before the property could be sold.