The Director of Public Prosecutions v Vitale

The Director of Public Prosecutions appealed from a decision of a Master to exclude the mortgages of CEG Direct Securities Pty Ltd from the operation of a restraining order made by a Judge. The restraining order was made pursuant to the Criminal Assets Confiscation Act 2005 (SA) in relation to the defendant’s real property. The defendant had entered into a loan contract with CEG and provided security by a mortgage of the property. CEG made an application to vary the restraining order so as to exclude its mortgages from the operation of the order. The Master made the order sought by CEG and the DPP appealed. The appeal should be dismissed. The court held that the order made by the Judge did not apply to CEG’s interest in the land, and therefore, CEG did not need to apply to be excluded from the operation of the order. The court further held that the Act does not provide broad and extensive power to interfere with third party property rights and that it is necessary to have regard to other legislation to properly understand how the Act co-exists with those other statutes. The court found that the Real Property Act 1886 continued to have full force and effect and that the Act was in addition to, and did not limit or derogate from, the provisions of any other Act. The court held that the Act was intended to avoid a repeal of the provisions in statutes such as the Real Property Act 1886 or the Law of Property Act 1936. The appeal was dismissed with costs.

The court made no orders as to costs.