Citation: [2020] NSWSC 241
Court: Supreme Court of New South Wales
Date: 12 March 2020
Judge(s): Cavanagh J
Background
The NSW Crime Commission held a restraining order, made on 12 September 2018 under section 10A of the Criminal Assets Recovery Act 1990 (NSW), over the property interests of the defendant. The defendant was facing both criminal proceedings and confiscation proceedings brought by the Commission. A restraining order under the Act freezes a person's interest in property, preventing them from dealing with it pending the outcome of proceedings.
The parties came before the Court to file consent orders varying that existing restraining order. Both the Commission and the defendant had signed the proposed orders, and the variation concerned a residential property at Cabramatta.
Legal Issues
- Whether the existing restraining order should be varied to permit the defendant to sell the Cabramatta property.
- How the proceeds of any such sale should be dealt with, including their payment to the NSW Trustee and Guardian.
- Whether provision should be made from those proceeds for the defendant's reasonable legal expenses in both the criminal and confiscation proceedings.
Decision
Issue 1: Variation to permit sale
Cavanagh J reviewed the consent orders and was satisfied that the restraining order should be varied under section 12(1) of the Act to allow the defendant, or any other person acting as vendor, to sell the Cabramatta property (at [3]). The sale price required written agreement from the NSW Crime Commission.
Issue 2: Application of sale proceeds
The court noted that proceeds from the sale would first discharge any registered mortgage over the property, and then meet sale-related expenses including legal and conveyancing costs, agent's commission, valuation fees, rates adjustments, and any other expenses approved in writing by the Commission (at [3]). The net proceeds, after those deductions, were to be paid to the NSW Trustee and Guardian to be held until further order (at [5]).
Issue 3: Legal costs from proceeds
Pursuant to section 10B(3)(b) of the Act, the court made provision for the defendant's reasonable legal expenses in both the criminal and confiscation proceedings to be funded from the funds held by the NSW Trustee and Guardian (at [5]). Those costs were to be paid at rates not exceeding those set out in a schedule to the orders, upon provision of itemised invoices to the Commission.
Orders Made
- The restraining order was varied under section 12(1) of the Act to permit the defendant or any other vendor to sell the Cabramatta property at a price agreed to in writing by the NSW Crime Commission.
- Sale proceeds were to be applied first to discharge any registered mortgage, then to pay reasonable legal and conveyancing costs, agent's commission, valuation fees, rates or other adjustments, and any other expenses approved in writing by the Commission.
- Net proceeds after those payments were to be paid to the NSW Trustee and Guardian by bank cheque or electronic funds transfer, to be held until further order.
- Pursuant to sections 10B(2), 10B(3)(b), and 12(1) of the Act, provision was made for the defendant's reasonable legal expenses in the criminal and confiscation proceedings to be paid from the funds held with the NSW Trustee and Guardian, at rates set out in the schedule to the orders and upon provision of itemised invoices to the Commission.
Key Takeaways
- Under section 12(1) of the Criminal Assets Recovery Act 1990 (NSW), a restraining order may be varied by consent to permit a defendant to deal with restrained property for specific purposes, such as a supervised sale.
- Where a property sale is permitted by variation of a restraining order, the court can direct that net proceeds be paid to the NSW Trustee and Guardian to be held until further order, preserving the integrity of the confiscation regime while the underlying proceedings continue.
- Section 10B(3)(b) of the Act allows a restraining order to make provision for a defendant's reasonable legal expenses, including those incurred in both criminal proceedings and the confiscation proceedings themselves, to be met from restrained funds.
- The involvement of the NSW Crime Commission as a consenting party, and its retained discretion over the sale price and certain expenses, reflects the Act's framework for balancing the defendant's access to justice against the preservation of potentially confiscable assets.
- Consent orders of this kind are recorded and made by the court on the papers; the judgment itself does not involve contested argument or judicial reasoning beyond confirmation that the orders are appropriate.
Legislation and Cases Referenced
Legislation
- Criminal Assets Recovery Act 1990 (NSW), ss 10A, 10B
Cases
- Not stated