Youssef v Commissioner of the Australian Federal Police

The applicants, Mr. Youssef and others, sought to appeal a decision of the primary judge who had refused to make an order under section 44 of the *Proceeds of Crime Act 2002* (Cth) excluding certain real property from a restraining order made under section 18 of the Act. The property in question had been purchased using funds alleged to be the proceeds of crime. The applicants had offered an undertaking to use their best endeavours to obtain money from a specific bank account and pay it to the liquidator of the company from which they had received the alleged proceeds of crime.

The central legal issue before the Court of Appeal was whether the primary judge erred in finding that the applicants' undertaking was not satisfactory and, consequently, in refusing to make the section 44 excluding order. This required the court to consider the adequacy of the undertaking in light of the circumstances surrounding the bank account, including its "post credits only" status and evidence of material misstatements in the loan facility application under which the funds were obtained. The court also had to determine whether the applicants had discharged their onus of establishing that the bank would permit drawings from the account.

The Court of Appeal, comprising Gleeson JA, Emmett AJA, and Barrett AJA, dismissed the applicants' summons seeking leave to appeal. The court reasoned that the primary judge had been correct in finding the undertaking unsatisfactory. The applicants had failed to provide sufficient evidence to demonstrate that the bank would allow them to draw funds from the account, particularly given its "post credits only" status and the misrepresentations made in the loan application. Without such evidence, the undertaking was speculative and did not provide the necessary assurance that the funds would be made available to the liquidator.

Consequently, the Court of Appeal ordered that the applicants pay the respondent Commissioner's costs.