Commissioner of Police v Zhang
[2017] NZHC 3211
•19 December 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2015-404-2358 [2017] NZHC 3211
UNDER the Criminal Proceeds Recovery Act 2009 BETWEEN
COMMISSIONER OF POLICE Applicant
AND
SEN ZHANG First Respondent
XUAN CHEN Second Respondent
Hearing: 25 and 26 September 2017
(Further submissions filed, up to and including 15 November
2017)Counsel:
D M A Wiseman and H Clark for Applicant
T M Cooper for First Respondent
B L Sellars for Second Respondent and Interested Party(Mrs Bai)
Judgment:
19 December 2017
JUDGMENT OF BREWER J
This judgment was delivered by me on 19 December 2017 at 3:30 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Meredith Connell (Auckland) for Applicant
Tiffany Cooper (Auckland) for First Respondent
McVeagh Fleming (Auckland) for Second Respondent and Interested Party
COMMISSIONER OF POLICE v ZHANG & CHEN [2017] NZHC 3211 [19 December 2017]
Introduction
[1] Mr Zhang pleaded guilty on 7 July 2016 to a charge of possession of methamphetamine for supply.1 He is serving his sentence of six years and nine months’ imprisonment. The Commissioner of Police now applies for civil forfeiture orders under the Criminal Proceeds (Recovery) Act 2009 (“the Act”).
[2] Mr Zhang, I find, funded a lifestyle of lavish consumerism for himself and
Ms Chen from the proceeds of selling methamphetamine. However, he also received and used large sums of money sent to him from China by his mother, Mrs Bai. The main contest in this case is the extent to which Mrs Bai can prove she has an interest in property which the Commissioner wants forfeited, and thus obtain relief as appropriate.2
[3] There is no issue in respect of the forfeiture of a number of items. Mr Zhang does not oppose forfeiture; Ms Chen has reached a settlement with the Commissioner;3
Mrs Bai does not claim an interest in the items. I have no doubt that the items are tainted property4 because they have been acquired as a result of Mr Zhang’s dealing in methamphetamine, in whole or in part. Accordingly, I make assets forfeiture orders in respect of:5
•A black 2007 Mercedes-Benz, registration ML 63 AMG, IML631, registered to Mr Zhang;
• A white 2006 Mini Cooper S Cabrio Auto, registration UMINIU,
registered to Ms Chen;
• 78 bottles of wine, including a case of 12 unopened bottles of Chateau
Lafite Rothschild;
•39 cameras, 62 camera lenses, seven tripods, two camera flashes, two camera cabinets, 19 camera cases, and 161 items of further miscellaneous camera equipment;
•The Louis Vuitton, Christian Dior and Hermès handbags seized by the Police, excepting the three handbags to be returned to Ms Chen under the terms of her settlement with the Commissioner, being:
1 Misuse of Drugs Act 1975, s 6(1)(c).
2 Criminal Proceeds (Recovery) Act 2009, ss 61 and 66.
3 The settlement is set out in the joint memorandum of counsel dated 18 September 2017. I approve it pursuant to s 95(3) of the Criminal Proceeds (Recovery) Act.
4 Criminal Proceeds (Recovery) Act, s 5(1).
5 Section 95(3).
• 1 x Christian Dior Green snakeskin bag in white Dior box;
• 1 x Lady Dior Small Flower embroidered bag in white
Dior box;
• 1 x Purple Hermès handbag with coloured handles in orange Hermès box;
•$2,954.80 cash, located by Police on 16 September 2015 during a search of 11 Austin Road.
[4] The Commissioner also seeks the forfeiture of:
(a) The unencumbered residential property at 11 Austin Road, Greenhithe, Auckland, certificate of title NA114D/627, registered to Mrs Bai (“11
Austin Road”);
(b) Two handmade platinum four-claw diamond rings (“the rings”); and
(c) A pair of diamond earrings (“the earrings”).
[5] Mrs Bai claims that 11 Austin Road is hers. She says she paid for it. Likewise, she claims that the rings and the earrings are hers. She says she sent Mr Zhang USD
100,000 to buy them as engagement jewellery for Ms Chen. The engagement has been cancelled and, pursuant to Chinese custom, the jewellery must be returned to her. Alternatively, she has a claim on the jewellery pursuant to s 8 of the Domestic Actions Act 1975.
[6] Mr Zhang opposes being the subject of a profit forfeiture order, and he supports Mrs Bai’s claims to 11 Austin Road and to the jewellery. He did not, however, file an affidavit or give evidence. His counsel made submissions on his behalf.
Civil forfeiture orders
[7] The Court of Appeal in Hayward v Commissioner of Police confirmed that the
Act has a “strongly expressed statutory purpose”.6 The relevant purposes of the Act are listed in s 3(2):
6 Hayward v Commissioner of Police [2014] NZCA 625 at [29](c).
The criminal proceeds and instruments forfeiture regime established under this Act proposes to—
(a) eliminate the chance for persons to profit from undertaking or being associated with significant criminal activity; and
(b) deter significant criminal activity; and
…
[8] Ultimately, s 4(1)(a) states that the Act:
… provides for the restraint and forfeiture of property derived as a result of significant criminal activity without the need for a conviction …
[9] Here, Mr Zhang has pleaded guilty to an offence which constitutes significant criminal activity within the meaning set out in s 6(1) of the Act. Section 47(1) of the Evidence Act 2006 provides that in civil proceedings proof of conviction is conclusive proof that the person committed the offence.7 I note, however, that civil forfeiture orders may be obtained even though the activity has not been subject to criminal proceedings in New Zealand.8 A conviction is not a prerequisite to the making of a civil forfeiture order.9
[10] As set out in s 5(1) of the Act, there are two types of civil forfeiture orders: assets forfeiture orders and profit forfeiture orders. The Commissioner seeks, first, profit forfeiture orders and assets forfeiture orders as an alternative. I have decided, as I will come to, that assets forfeiture orders are appropriate and that, because they will cover the identified assets of Mr Zhang, profit forfeiture orders are inappropriate.
[11] Section 50(1) governs the Commissioner’s ability to acquire an assets forfeiture order:
If, on an application for an assets forfeiture order, the High Court is satisfied on the balance of probabilities that specific property is tainted property, the Court must make an assets forfeiture order in respect of that specific property.
[12] Section 5(1) defines “tainted property” as meaning:
7 I note that, as per s 10(1) of the Criminal Proceeds (Recovery) Act, these current proceedings are civil proceedings.
8 Section 15.
9 Commissioner of Police v Wei [2012] NZCA 279 at [12].
(a) … any property that has, wholly or in part, been—
(i) acquired as a result of significant criminal activity; or
(ii) directly or indirectly derived from significant criminal activity; and
(b) includes any property that has been acquired as a result of, or directly or indirectly derived from, more than 1 activity if at least 1 of those activities is a significant criminal activity
[13] “Property” is defined widely as meaning:10
(a) … real or personal property of any kind—
(i) whether situated in New Zealand or a foreign country; and
(ii) whether tangible or intangible; and
(iii) whether movable or immovable; and
(b) includes an interest in real or personal property
[14] Having an “interest” in relation to “property” means:11
(a) a legal or equitable estate or interest in the property; or
(b) a right, power, or privilege in connection with the property
[15] Section 55 governs the Commissioner’s ability to acquire a profit forfeiture order. The Court must make an order where it is satisfied on the balance of probabilities that the respondent has unlawfully benefited from significant criminal activity and has interests in property.12 The order must, therefore, attach to specific realisable property.13 But no connection between the criminal activity and the property is required.14
[16] Section 7 defines “unlawfully benefited from significant criminal activity” as:
In this Act, unless the context otherwise requires, a person has unlawfully benefited from significant criminal activity if the person has knowingly, directly or indirectly, derived a benefit from significant criminal activity (whether or not that person undertook or was involved in the significant criminal activity).
10 Section 5(1).
11 Section 5(1).
12 Section 55(1).
13 Section 52(d). See also Doorman v Commissioner of Police [2013] NZCA 476, [2014] 2 NZLR
173 at [62].
14 Nicholas v Commissioner of Police [2017] NZCA 473 at [21].
[17] A person must, therefore, benefit knowingly from significant criminal activity. Wilful blindness will suffice:15
[52] … the person must have his or her suspicions aroused (for example, be aware that a particular state of affairs may exist) and must deliberately refrain from making enquiry in order to avoid learning whether the suspicion is justified …
[18] If the Commissioner proves on the balance of probabilities that a respondent has benefited unlawfully from significant criminal activity, the value of that benefit is presumed to be the value stated in the application.16 But the respondent may rebut that presumption on the balance of probabilities.17
Issues
[19] The issues for me to determine are:
(a) Should 11 Austin Road, the rings and the earrings be made subject to assets forfeiture orders on the basis they are tainted?
(b) If so, is there power to make a profit forfeiture order?
(c) If 11 Austin Road, the rings and the earrings are made subject to assets forfeiture orders, should Mrs Bai be granted relief?
(d) If so, what should the relief be?
Should 11 Austin Road, the rings and the earrings be made subject to assets forfeiture orders?
[20] The assets forfeiture application relates to 11 Austin Road, the rings and the earrings. I must determine whether the Commissioner has proved on the balance of
probabilities that 11 Austin Road, the rings and the earrings are tainted property. If I
15 Vincent v Commissioner of Police [2013] NZCA 412.
16 Section 53(1)(a).
17 Section 53(2).
determine they are, I must make assets forfeiture orders in respect of them, subject to any relief.18
11 Austin Road
[21] Mrs Bai is the registered proprietor of 11 Austin Road. The property was purchased on 25 April 2014 for $1,310,000. Mrs Bai was not in New Zealand when the sale took place. Mr Zhang was given power of attorney. He completed the transaction on her behalf. However, the purchase price was paid over time by instalments:
(a) 28 April 2014: deposit of $153,000;
(b) 23 July 2014: balance of $647,000;
(c) 22 October 2014: first vendor finance payment of $110,000;
(d) 28 January 2015: second vendor finance payment of $200,000; and
(e) Third vendor finance payment of $200,000.
[22] The Commissioner accepts that Mrs Bai transferred $1,024,498.83 from China into two ASB bank accounts controlled by Mr Zhang over the period 21 October 2013 to 10 January 2014. But the Commissioner submits that Mrs Bai contributed a maximum of $853,271 in legitimate funds towards the purchase of 11 Austin Road. The rest was Mr Zhang’s illegitimate funds earned from his drug dealing.
[23] Mrs Bai submits that, on the evidence, the funds she transferred to New Zealand were enough to pay for the house. However, I find that Mr Zhang used his mother’s funds for his own purposes. I accept that Mrs Bai’s funds can be shown
as making, or contributing, to the payments due on the house, but only to the $853,271
18 Section 50(1). See also Hayward v Commissioner of Police, above n 6, at [19].
identified by the Commissioner.19 The rest was spent by Mr Zhang and then, when payments were due, he topped up Mrs Bai’s money with his own money. That money had to come from his drug dealing since he had no other identified source of relevant income.20
[24] I acknowledge that Mrs Bai sent her funds to her son intending that they be used to purchase the house. There is a submission that equitable principles of tracing apply so that all her funds can be deemed to have been applied to the house purchase, and thus it is not tainted property. In the context of the Act, that submission cannot succeed. The Act is a regime governing the forfeiture of property and it has to be given effect. The Act, primarily through s 66, empowers the Court to grant appropriate relief.
[25] As I acknowledged above, I accept that legitimate funds paid for a portion of the purchase price of 11 Austin Road. But that does not mean that the property is untainted. The definition of tainted property is purposefully broad. As Dunningham J explains:21
[105] … [it] only requires there to have been some contribution from the proceeds of criminal activity to the acquisition of property in order to taint the property …
…
[114] … It is clear that as long as it can be shown that any proceeds of significant criminal activity contributed to the acquisition or increase in value of the property, it will become tainted property under the Act.
[26] Given Mrs Bai has not funded the entirety of the purchase price, I am satisfied that 11 Austin Road is tainted property as it has been, at least in part, acquired as a
result of Mr Zhang’s criminal activity.
19 One point of contention was Mrs Bai’s evidence that on 23 December 2013, she transferred USD
49,310 to New Zealand to assist with the purchase of 11 Austin Road. The Chinese bank documents Mrs Bai submitted show that money was deposited for transfer, but they do not show that the money was actually transferred. The Commissioner’s evidence is that there is no record of the money actually arriving in New Zealand. If it did, and Mr Zhang took it in cash, then he spent it on his own purposes. I accept the Commissioner’s calculation as to the contribution by Mrs Bai to the purchase price because Mrs Bai has not proved on the balance of probabilities that the USD 49,310 was used to part-fund the house purchase.
20 I note that Mr Zhang and Ms Chen declared a combined income of less than $30,000 over a period of seven years.
21 Commissioner of Police v Drake [2017] NZHC 2919.
[27] I am also satisfied that Mrs Bai has an interest in 11 Austin Road, being the registered proprietor and a contributor to its purchase.22
[28] I make an assets forfeiture order in respect of 11 Austin Road, and I will consider Mrs Bai’s application for relief.
The jewellery
[29] Mrs Bai deposes that she made four separate transfers to Mr Zhang in 2011 and
2012 to a total value of USD 100,000 so he could purchase engagement jewellery for
Ms Chen, his fiancé. The Commissioner does not dispute the fact these transfers took place.
[30] However, the Commissioner submits that the financial evidence demonstrates that Mr Zhang purchased the jewellery with illegitimate funds. The Commissioner claims that Mr Zhang spent the funds Mrs Bai transferred purchasing items at Progear Professional Photographic and Louis Vuitton, paying his credit card bills, and making various transfers to accounts controlled by himself and Ms Chen.
[31] I agree with the Commissioner. The evidence shows that Mr Zhang purchased the first ring on 13 October 2010 for $78,000 and the second ring on 29 April 2011 for
$81,974. He purchased the earrings for $7,000 on 13 January 2014.23
[32] Two points can be made. First, Mr Zhang purchased the rings before Mrs Bai transferred any of her funds. Second, Mr Zhang purchased the earrings between two and three years after Mrs Bai transferred the funds.
[33] Mrs Bai’s funds did not, therefore, purchase the jewellery. The implication must be drawn that both the rings and the earrings were purchased with the proceeds
of Mr Zhang’s criminal activity.
22 Commissioner of Police v Drake, above n 21, at [119].
23 There is a mystery in that one of the rings seized by Police is fake and there is no explanation as to how a fake ring was acquired. But, that is not for me. The Commissioner’s application relates to the seized jewellery.
[34] I note that Mrs Bai claims Mr Zhang genuinely misled her by asking for money to purchase the jewellery when he paid for it himself. That is irrelevant to my task. I must establish whether the jewellery is tainted property. The evidence establishes it patently is.
[35] I am further satisfied that Mr Zhang has an interest in the jewellery. He purchased the jewellery with his own funds. Ms Chen does not claim otherwise.
[36] I make an assets forfeiture order in respect of the jewellery, and I will consider
Mrs Bai’s application for relief.
Profit forfeiture order?
[37] The Commissioner submits a profit forfeiture order should be made against
Mr Zhang in the sum of $3,958,843.24 This sum comprises of the following:
(a) Unexplained deposits in Mr Zhang and Ms Chen’s bank accounts:
$3,376,888.24;
(b) The value of the purchase price of 800 grams of methamphetamine:
$493,000;
(c) The purchase price of Mr Zhang’s Mercedes (paid for in cash):
$86,000; and
(d) Cash located at house: $2,954.80.
[38] As I noted earlier, a profit forfeiture order must attach to specific property. Here, the Commissioner frames the profit forfeiture application in terms of 11 Austin
Road and the jewellery.
24 Mrs Bai challenges this sum on a number of grounds. Since I have decided not to make profit forfeiture orders, I will not discuss them.
[39] There is an issue as to whether I can now make a profit forfeiture order given I have decided to make assets forfeiture orders in respect of 11 Austin Road, the rings and the earrings.
[40] In my view, I have no power to make a profit forfeiture order now.25 The property identified as property to be disposed of is 11 Austin Road, the rings and the earrings. But this property is already subject to assets forfeiture orders. The Court of Appeal in Doorman v Commissioner of Police held that profit forfeiture orders cannot be made where there is no identifiable property to satisfy them (because such property had already been forfeited to the Crown by way of assets forfeiture orders).26 It explained the policy behind profit forfeiture orders:27
[65] The legislative history suggests that the intention was that profit forfeiture orders would be available where a person has profited from significant criminal activity, but concealed those assets. We consider that the Act does provide for that so long as the Court can be satisfied of the existence of such property …
(Citations omitted)
[41] The Commissioner wanted profit forfeiture orders because the amount of the identified profit was greater than the value of the identified property. The shortfall would be, in effect, a debt owing by Mr Zhang and recoverable as such by the Official Assignee.28
[42] In my view, although there is no statutory priority of types of orders, profit forfeiture orders are intended for situations where a criminal has made a criminal profit but has assets that cannot be proved to have been tainted by his criminal activity.
[43] I accept that a Judge has a discretion whether to make assets forfeiture orders, profit forfeiture orders, or both. The exercise of the discretion will depend on the situation.
[44] I note that s 54(1) of the Act provides:
25 Doorman v Commissioner of Police, above n 13, at [66].
26 Doorman v Commissioner of Police, above n 13.
27 Doorman v Commissioner of Police, above n 13.
28 Sections 55(4) and 83(4).
Before the High Court makes a profit forfeiture order, the Court must determine the maximum recoverable amount by—
(a) taking the value of the benefit determined in accordance with section
53; and
(b) deducting from that the value of any property forfeited to the Crown as a result of an assets forfeiture order made in relation to the same significant criminal activity to which the profit forfeiture order relates.
[45] The legislature therefore envisaged assets forfeiture orders being made in respect of “the same significant criminal activity” for which a profit forfeiture order would be made.
[46] In this case, with no untainted property being identified, I decided it would be redundant to make a profit forfeiture order when assets forfeiture orders would suffice.
Relief for Mrs Bai?
[47] Mrs Bai seeks relief against forfeiture as an innocent third party pursuant to s 61 of the Act. Section 66(1) provides that the Court “must grant the relief [it] considers appropriate” if Mrs Bai proves on the balance of probabilities that she:
(a) has an interest in the relevant property (or would but for any civil forfeiture order); and
(b) has not unlawfully benefited from the relevant significant criminal activity.
11 Austin Road
[48] There is no doubt that Mrs Bai has an interest in 11 Austin Road. She has a legal interest as the registered proprietor. She contributed her own funds to its purchase. There is also no doubt that Mrs Bai did not unlawfully benefit from
Mr Zhang’s drug dealing. Mrs Bai is entitled to relief.
Jewellery
[49] Mrs Bai submits she has an interest in the jewellery regardless of the chronology of its purchase.
[50] Mrs Bai does not have a legal interest. She instead submits she has an equitable interest as she transferred sufficient funds for the express purpose of purchasing the jewellery.
[51] In order to establish an equitable interest in the nature of a constructive trust over the jewellery, Mrs Bai must rely on the general equitable principles set out by the Court of Appeal in Lankow v Rose.29 Mrs Bai must show:30
(a) Contributions, direct or indirect to the property;
(b) The expectation of an interest in the property;
(c) That her expectation of an interest is a reasonable one; and
(d) That the competing party should reasonably expect to yield her an interest in the property.
[52] I am not satisfied that Mrs Bai has an equitable interest in the nature of a constructive trust. She cannot show any direct or indirect contributions to the jewellery. As I have said, the funds Mrs Bai transferred did not contribute to the purchase of the jewellery.
[53] Mrs Bai does not have an interest in the jewellery within the traditional legal meaning of the term. But the term “interest” is defined widely in the Act. The second limb of the definition is significant. It includes a right, power, or privilege in connection with property.31
[54] In this regard, Mrs Bai first submits that Chinese culture provides her with an interest in the jewellery. In Chinese culture, she submits the parents of the groom are to purchase the engagement jewellery. If the engagement is subsequently called off, the jewellery is to be returned to the parents.
[55] There is no evidence that the Chinese cultural tradition is not what Mrs Bai says it is. But, it does not establish an interest under the Act in this case. In the context
29 Lankow v Rose [1995] 1 NZLR 277 (CA).
30 At 294.
31 Section 5(1).
of an undue hardship application under s 56 of the Act, the Court of Appeal in Nicholas v Commissioner of Police commented on the definition:32
[45] … That definition may not be wide enough to cover the cultural, emotional and whānau connections raised by Mr Nicholas in this appeal …
[56] In this case, Mrs Bai sent money to her son to buy engagement jewellery. But he did not spend it buying engagement jewellery. He deceived her. I do not find that this situation gives Mrs Bai an interest in the jewellery.
[57] The definition can, however, include an inchoate right.33 A right to make a claim can, therefore, constitute an interest. It is for this reason that Mrs Bai also relies on s 8 of the Domestic Actions Act; although it could, of course, be a standalone application:
(1) Where the termination of an agreement to marry gives rise to any question between the parties to the agreement, or between 1 or both of the parties to the agreement and a third party, concerning the title to or possession or disposition of any property, any such party may, in the course of any proceedings or on application made for the purpose, apply to the court for an order under this section.
(2) Every application under this section shall be made within 12 months of the date of termination of the agreement or within such longer period as the court may allow.
(3) Subject to subsection (6), on any such application the court shall make such orders as it thinks necessary to restore each party to the agreement, and any third party, as closely as practicable to the position that party would have occupied if the agreement had never been made.
(4) In determining the orders to be made on any such application, the court shall not take into account or attempt to ascertain or apportion responsibility for the termination of the agreement.
(5) In order to give effect to subsection (3), but without limiting the general power conferred thereby, the court may, on any such application, notwithstanding that the legal or equitable interests of all parties in any property may be defined, or that a party may have no legal or equitable interest in any property, make orders for—
(a) the sale of all or part of the property and the division or settlement of the proceeds in such shares and upon such terms as it thinks fit:
(b) the partition or division of the property:
32 Nicholas v Commissioner of Police, above n 14.
33 Commissioner of Police v Read [2015] NZHC 2055 at [34].
(c) the vesting of property owned by 1 or 2 parties in 2 or more parties in common in such shares as it thinks fit:
(d) the conversion of joint ownership into ownership in common in such shares as it thinks fit:
(e) the payment of sums of money by any party to any other party or parties.
(6) Where any property in dispute is a gift from a third party and the court is satisfied that the third party does not wish the gift to be returned to him, the court may make such orders with respect to that property as appear just in all the circumstances, but without taking into account or attempting to ascertain or apportion responsibility for the termination of the agreement.
(7) An order made under this section shall be subject to appeal in the same way as an order made by the District Court or the High Court in an action in the District Court or in the High Court, respectively, would be.
(8) Nothing in this section shall limit or affect the right of any person to bring an action for money had and received.
[58] The section allows third parties to apply to the Court for an order in circumstances where the termination of an agreement to marry gives rise to any question about the title to, or possession or disposition of, property. A successful action under s 8 requires reasonable proof that:34
(a) There was an agreement to marry;
(b) The subject-matter of the claim which arose was related to the agreement (e.g. the acquisition of goods); and
(c) The termination of the agreement directly caused a loss in respect of the subject-matter of the claim.
[59] I am satisfied there was an agreement to marry between Mr Zhang and
Ms Chen. They were engaged. Mr Zhang purchased engagement jewellery for
Ms Chen.
[60] But, again, I regard Mrs Bai’s lack of financial contribution to the actual purchase of the jewellery as determinative. The termination of this agreement has not caused any loss to Mrs Bai. The funds Mrs Bai transferred were not used to purchase the jewellery. Mr Zhang spent those funds on a range of other items.
[61] In my view, Mrs Bai cannot establish that she has an interest in the jewellery for the purposes of s 66(1) of the Act (or s 8 of the Domestic Actions Act).
[62] I decline to make an order for relief in relation to the jewellery.
What type of relief?
[63] There is a range of relevant considerations the Court might take into account when making an order under s 66(1). These include the nature and extent of any interest, the hardship considerations under s 67(2) of the Act and the statutory purpose of the Act.35
[64] Mrs Bai submits that the appropriate relief is for this Court to decline to make an order in respect of 11 Austin Road. The Commissioner, on the other hand, submits that she only has an interest to the extent of her actual financial contribution to the property; the remainder of the purchase was funded by the proceeds of Mr Zhang’s criminal activity.
[65] Here, Mrs Bai’s interest in the property is not severable. Accordingly, s 69 of the Act dictates what I must do:
A High Court that grants relief from a civil forfeiture order under section 66 or 67 in respect of an interest that is not severable from the property that is, or is to be, the subject of a civil forfeiture order must direct the Crown to pay the applicant an amount equal to the value of that interest.
[66] Mrs Bai is, therefore, entitled to relief of the amount of her actual financial contribution to 11 Austin Road. This is the sum of $853,271.
[67] However, in the exercise of my discretion I direct that Mrs Bai is entitled to a proportionate share of any capital gains on the sale of 11 Austin Road. Mrs Bai contributed 65.14 per cent of the purchase price; she is entitled to 65.14 per cent of any nett increase in the value of 11 Austin Road.
Decision
[68] The orders I have made in the Judgment, or which I now make, are:
(a) An assets forfeiture order in respect of the 11 Austin Road property. I vest that property in the Crown absolutely and put it in the custody and control of the Official Assignee. I direct the Registrar, pursuant to s 60(2) of the Act, to transmit this order to the Registrar-General of Land for the purpose of registration under the Land Transfer Act 1952.
(b) I order that the Crown pay to Mrs Bai, as relief under s 66(1) of the Act,
$853,271.
(c) I order that the Crown pay to Mrs Bai, as further relief under s 66(1) of the Act, a sum equal to 65.14 per cent of the net proceeds of sale of
11 Austin Road which are greater than the purchase price of
$1,310,000.
(d)An assets forfeiture order in respect of the rings and earrings. I vest that property in the Crown absolutely and put it in the custody and control of the Official Assignee.
(e) An assets forfeiture order in respect of the items of property specified in [3] herein. I vest those items of property in the Crown absolutely and put them in the custody and control of the Official Assignee.
Costs
[69] I will receive memoranda as to costs:
(a) From the Commissioner, no later than 9 February 2018.
(b) From any other party, no later than 2 March 2018.
Brewer J
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