The Commissioner of the Australian Federal Police v Rifai - Application by Njaima Kasmi

[2021] NSWSC 250

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

The Commissioner of the Australian Federal Police v Rifai – Application by Njaima Kasmi [2021] NSWSC 250

Hearing dates:

12 March 2021

Date of orders:

12 March 2021

Decision date:

17 March 2021

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) Pursuant to s 93 of the Proceeds of Crime Act 2002 (Cth), I order that the period before the subject property located at xxxxx Street, Broadmeadows Victoria is forfeited is extended by six months to 18 September 2021.

(2) The respondent plaintiff is to pay the applicant’s costs of the Amended Notice of Motion.

(3) The matter is listed for directions before the Registrar at 9:00am on Friday, 19 March 2021.

Catchwords:

CRIME – proceeds of crime – forfeiture order- extension order sought under s 93 extending period before property forfeited – whether application for extension made without undue delay - application granted

Legislation Cited:

Criminal Code Act 1995 (Cth)

Proceeds of Crime Act 2002 (Cth) ss 31, 92, 93, 94, 94A

Category:

Procedural rulings

Parties:

The Commissioner of the Australian Federal Police
(Plaintiff)
Alaedine Rifai (AKA Alan Rifai) (First Defendant)
Amal Hilmi (Second Defendant)
Njaima Kasmi (Applicant/Interested Party)

Representation:

Counsel:
K Anderson (Plaintiff)
A Ahmad (Interested Party)

Solicitors:
Australian Federal Police (Plaintiff)
Australian Criminal and Family Lawyers (Interested Party)

File Number(s):

2019/219062

Publication restriction:

Nil

Judgment

1. On 12 March 2021, sitting as duty judge, I made orders sought by the applicant, Ms Njaima Kasmi, under s 93 of the Proceeds of Crime Act 2002 (Cth), (“the Act”), extending the period provided in s 92 for forfeiture of certain restrained property so that the automatic forfeiture provisions of the Act did not take effect in respect of that particular property.

2. These are my reasons for that order.

3. The proceedings were commenced by Summons on 15 July 2019. Adamson J made restraining orders that day over a number of items of property, including real property at xxxxx Street at Broadmeadows, Victoria. 

4. On 18 September 2020, the first and second defendants, Alaedine Rifai and Amal Hilmi were sentenced in this Court after pleading guilty to conspiracy to defraud the Commonwealth contrary to s 135.4(1) of the Criminal Code.

5. On the same day, a solicitor - not the current solicitor acting for Ms Kasmi - sent an email to a solicitor at the AFP stating that Ms Kasmi is the mother of Ms Hilmi and that although Ms Hilmi was the registered proprietor of the Broadmeadows property, “she does not hold an equitable interest in the property” and that Ms Kasmi “seeks to assert her equitable interest in the property”.

6. The solicitor at the AFP sent an email on the same day to the solicitor stating that if the solicitor intended to represent Ms Kasmi, she should file a notice of appearance, and noting that if her client wanted to assert an interest in the property restrained, she may do so by way of application under the Act.

7. On 2 October 2020 a notice was duly served upon Ms Kasmi under s 92A of the Act, informing her that the Broadmeadows property would forfeit to the Commonwealth on 19 March 2021 unless an order under ss 93 or 94 was made before that date.

8. In his affidavit sworn 11 March 2021, Mr Samin says that he was retained on 9 November 2020. He explains that Ms Kasmi is Morrocan and has six adult children, has been a single mother for the last 15 years after the death of her husband in 2006, and speaks limited English.

9. Mr Samin deposed to being instructed that the house at Broadmeadows was purchased in November 2005 and as Ms Kasmi had been unable to obtain a loan in her own name, Ms Hilmi was placed on the title. He was instructed that Ms Kasmi paid the upfront purchase costs, and Ms Hilmi obtained a home loan for $200,000. Ms Kasmi then serviced the loan.

10. Mr Samin deposed to a belief that Ms Kasmi has a genuine and bona fide equitable interest in the Broadmeadows property based on financial contributions, improvements she has made to the property and mortgage payments that she made and that he has been instructed to make applications under ss 31, 94 and 94A of the Act to preserve Ms Kasmi’s interest. Ms Kasmi lives in the property with her 23 year old son and a grandchild. She has nowhere else to live.

11. Mr Samin explained the delays in attending to the filing of the application as follows:

1. Ms Kasmi has full time care of the child of the defendants;

2. The “bank” was not assisting with provision of documents and required a power of attorney before it would provide documents which took some time;

3. Obtaining information from financial organisations took time and in some instances took eight weeks. Bank statements arrived around 9 February 2021 and he had not yet read all the material;

4. Conferences were difficult given Ms Kasmi lives in Melbourne and has limited English and limited understanding in using technology;

5. Ms Kasmi needs help with English generally;

6. Ms Kasmi’s equitable interest needed careful explaining and took a while for Ms Kasmi to understand;

7. Counsel instructed on 19 November 2020 sat on the matter and did not provide the necessary advice. New counsel who appeared today was instructed on 19 February 2021 and the notice of motion was filed within 7 days.

Decision

12. It is obvious that the Act provides for the automatic forfeiture of certain property and the objects of the Act are directed to that outcome. It is however equally obvious that within the scheme established under division 1 of part 2-3 is a provision, s 93, that sets out the machinery for property to be excluded from forfeiture, provided application is made within the prescribed six month period and that the Court is satisfied that the applicant has made an application under ss 30, 31 or 94 of the Act without undue delay and has since diligently followed up that application.

13. There is a 15 month limit available on any extension granted under s 93. The applicant here has asked for six months only.

14. The plaintiff opposed the application on the basis that the delay in filing the application was undue, or, in the terms of the Act, the application has not been “made without undue delay”.

15. Counsel for the plaintiff, Mr Anderson, argued that given that six months is prescribed as the outer limit for such applications, this one, made very close to the end of that period, is prima facie not an application made without undue delay. He submitted that the explanations provided are unpersuasive and do not account for the whole period. Regard should be had to the fact that the application was heralded almost six months ago but nothing done until very late in that period.

16. I am not persuaded that the delay was undue. In my view undue delay needs to be a delay that is not adequately explained. The explanations here in Mr Samin’s affidavit are multi-faceted and do in my view well explain the delay.

17. The current solicitor was instructed in November 2020. He explained the steps he took. He explained the language and technology challenges. He was let down by counsel over the late November and Christmas holiday period, and ultimately retained counsel, Mr Ahmad, who was able to competently assist. The initial two month delay is sufficiently explained by the general social challenges Ms Kasmi faced: recent incarceration of her daughter, her language difficulties, the need to look after the defendants’ child and the arrest of three of her other adult children.

18. As I observed when I heard the application, the plaintiff opposed the application and took up 1.5 hours of Court time in doing so. Whilst it is obviously the plaintiff’s right to do so, the opposition to the application failed so the plaintiff will need to pay the costs associated with taking the point.

19. In the circumstances I made the usual order, namely that the plaintiff pay Ms Kasmi’s costs of the motion.

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Amendments

22 March 2021 - Paragraph 3, line 2 - Anonymised the street address.

22 March 2021 - Coversheet, Decision - Anonymised the street address in order 1.

Decision last updated: 22 March 2021