Commissioner of the Australian Federal Police v HWCJ GLB Pty Ltd

JUDGMENT

1. These reasons should be read with my reasons for judgment in Commissioner of the Australian Federal Police v HWCJ GLB Pty Ltd (No 2) [2024] NSWSC 482 and Commissioner of the Australian Federal Police v HWCJ GLB Pty Ltd (No 3) [2024] NSWSC 897. Subsequent to handing down judgment in those matters, the only matters remaining unresolved are the applications relating to the Commonwealth Bank GSL Bud accounts. Those motions were set down before me for hearing on 8 August 2024. The Commissioner and the applicants with an interest in those accounts, that is, both the original applicants and the new applicants have now agreed to orders which will have the effect of distributing the monies in those accounts amongst the original applicants and the new applicants using the same distribution methodology as I determined to be appropriate in Commissioner of the Australian Federal Police v HWCJ GLB Pty Ltd (No 2). I am of the view those orders should be made. The hearing in relation to the new applications can therefore be vacated.

Orders

1. I make the orders in the proposed short minutes of order in relation to the GSL Bud accounts as follows: Partial discharge of stay previously ordered 1 The stay of the orders made on 30 April 2024, as granted by order 4 made on 30 April 2024 and order 3 made on 17 May 2024, is discharged, with immediate effect, insofar as it applies to or affects any of the following choses in action enforceable against the Commonwealth Bank of Australia (CBA) in respect of account number: a. 062319 10881183; and b. 062759 10597291 (collectively the GSL Bud Accounts) held in the name of GSL Bud Pty Ltd. Funds from GSL Bud Accounts presently held in AUD 2 The Court notes that, prior to these proceedings being commenced, funds initially held in the GSL Bud Accounts in United States Dollars (USD) were converted into Australian Dollars (AUD). 3 The Court notes that the calculations prepared by Charlie Nasr were based on an assumed exchange rate of $0.6383 AUD to $1.00 USD. 4 Pursuant to s 39(1)I(i) of the Proceeds of Crime Act 2002 (Cth) ("POCA"), the Official Trustee in Bankruptcy (Official Trustee) is directed to convert any funds standing to the credit of either of the GSL Bud Accounts from AUD into USD, with any fees associated with that conversion to be met from the GSL Bud Accounts. James Nadel (Applicant 002) exclusion order 5 Pursuant to s 29 of the POCA, the interest of James Nadel in the GSL Bud Accounts restrained by the orders made on 3 November 2022, together with any interest earned on that applicant's interest in the property while under restraint, is hereby excluded from restraint. The interest of James Nadel in the GSL Bud Accounts is the proportional amount reflected in Schedule A to these orders as applied to the total value of the GSL Bud Accounts after all funds are converted into USD by the Official Trustee. 6 Leave is granted to James Nadel to apply for an order pursuant to s 39(2)(d) of the POCA. 7 Pursuant to s 39(1)I(i) of the POCA, the Official Trustee is directed to pay to James Nadel the value of the applicant's excluded interest, together with any interest earned on that amount while under restraint. Payment is to be made by electronic funds transfer to such account as may be specified in writing by James Nadel or their legal representative. Castle Bespoke Management Limited (Applicant 006) exclusion order 8 Pursuant to s 29 of the POCA, the interest of Castle Bespoke Management Limited in the GSL Bud Accounts restrained by the orders made on 3 November 2022, together with any interest earned on that applicant's interest in the property while under restraint, is hereby excluded from restraint. The interest of Castle Bespoke Management Limited in the GSL Bud Accounts is the proportional amount reflected in Schedule A to these orders as applied to the total value of the GSL Bud Accounts after all funds are converted into USD by the Official Trustee. 9 Leave is granted to Castle Bespoke Management Limited to apply for an order pursuant to s 39(2)(d) of the POCA. 10 Pursuant to s 39(1)I(i) of the POCA, the Official Trustee is directed to pay to Castle Bespoke Management Limited the value of the applicant's excluded interest, together with any interest earned on that amount while under restraint. Payment is to be made by electronic funds transfer to such account as may be specified in writing by Castle Bespoke Management Limited or their legal representative. Xiao Yan Dong (Applicant 009) exclusion orders 11 Pursuant to s 29 of the POCA, the interest of Xiao Yan Dong in the GSL Bud Accounts restrained by the orders made on 3 November 2022, together with any interest earned on that applicant's interest in the property while under restraint, is hereby excluded from restraint. The interest of Xiao Yan Dong in the GSL Bud Accounts is the proportional amount reflected in Schedule A to these orders as applied to the total value of the GSL Bud Accounts after all funds are converted into USD by the Official Trustee. 12 Leave is granted to Xiao Yan Dong to apply for an order pursuant to s 39(2)(d) of the POCA. 13 Pursuant to s 39(1)I(i) of the POCA, the Official Trustee is directed to pay to Xiao Yan Dong the value of the applicant's excluded interest, together with any interest earned on that amount while under restraint. Payment is to be made by electronic funds transfer to such account as may be specified in writing by Xiao Yan Dong or their legal representative. Harwin Group Inc (Applicant 014) exclusion order 14 Pursuant to s 29 of the POCA, the interest of Harwin Group Inc in the GSL Bud Accounts restrained by the orders made on 3 November 2022, together with any interest earned on that applicant's interest in the property while under restraint, is hereby excluded from restraint. The interest of Harwin Group Inc in the GSL Bud Accounts is the proportional amount reflected in Schedule A to these orders as applied to the total value of the GSL Bud Accounts after all funds are converted into USD by the Official Trustee. 15 Leave is granted to Harwin Group Inc to apply for an order pursuant to s 39(2)(d) of the POCA. 16 Pursuant to s 39(1)(e)(i) of the POCA, the Official Trustee is directed to pay to Harwin Group Inc the value of the applicant's excluded interest, together with any interest earned on that amount while under restraint. Payment is to be made by electronic funds transfer to such account as may be specified in writing by Harwin Group Inc or their legal representative. Mei McNeilly (Applicant 015) exclusion order 17 Pursuant to s 29 of the POCA, the interest of Mei McNeilly in the GSL Bud Accounts restrained by the orders made on 3 November 2022, together with any interest earned on that applicant's interest in the property while under restraint, is hereby excluded from restraint. The interest of Mei McNeilly in the GSL Bud Accounts is the proportional amount reflected in Schedule A to these orders as applied to the total value of the GSL Bud Accounts after all funds are converted into USD by the Official Trustee. 18 Leave is granted to Mei McNeilly to apply for an order pursuant to s 39(2)(d) of the POCA. 19 Pursuant to s 39(1)I(i) of the POCA, the Official Trustee is directed to pay to Mei McNeilly the value of the applicant's excluded interest, together with any interest earned on that amount while under restraint. Payment is to be made by electronic funds transfer to such account as may be specified in writing by Mei McNeilly or their legal representative. Fei Tan (Applicant 016) exclusion order 20 Pursuant to s 29 of the POCA, the interest of Fei Tan in the GSL Bud Accounts restrained by the orders made on 3 November 2022, together with any interest earned on that applicant's interest in the property while under restraint, is hereby excluded from restraint. The interest of Fei Tan in the GSL Bud Accounts is the proportional amount reflected in Schedule A to these orders as applied to the total value of the GSL Bud Accounts after all funds are converted into USD by the Official Trustee. 21 Leave is granted to Fei Tan to apply for an order pursuant to s 39(2)(d) of the POCA. 22 Pursuant to s 39(1)I(i) of the POCA, the Official Trustee is directed to pay to Fei Tan the value of the applicant's excluded interest, together with any interest earned on that amount while under restraint. Payment is to be made by electronic funds transfer to such account as may be specified in writing by Fei Tan or their legal representative. James McBrayer (Applicant 018) exclusion order 23 Pursuant to s 29 of the POCA, the interest of James McBrayer in the GSL Bud Accounts restrained by the orders made on 3 November 2022, together with any interest earned on that applicant's interest in the property while under restraint, is hereby excluded from restraint. The interest of James McBrayer in the GSL Bud Accounts is the proportional amount reflected in Schedule A to these orders as applied to the total value of the GSL Bud Accounts after all funds are converted into USD by the Official Trustee. 24 Leave is granted to James McBrayer to apply for an order pursuant to s 39(2)(d) of the POCA. 25 Pursuant to s 39(1)(e)(i) of the POCA, the Official Trustee is directed to pay to James McBrayer the value of the applicant's excluded interest, together with any interest earned on that amount while under restraint. Payment is to be made by electronic funds transfer to such account as may be specified in writing by James McBrayer or their legal representative. Paul Carney (Applicant 021) exclusion order 26 Pursuant to s 29 of the POCA, the interest of Paul Carney in the GSL Bud Accounts restrained by the orders made on 3 November 2022, together with any interest earned on that applicant's interest in the property while under restraint, is hereby excluded from restraint. The interest of Paul Carney in the GSL Bud Accounts is the proportional amount reflected in Schedule A to these orders as applied to the total value of the GSL Bud Accounts after all funds are converted into USD by the Official Trustee. 27 Leave is granted to Paul Carney to apply for an order pursuant to s 39(2)(d) of the POCA. 28 Pursuant to s 39(1)I(i) of the POCA, the Official Trustee is directed to pay to Paul Carney the value of the applicant's excluded interest, together with any interest earned on that amount while under restraint. Payment is to be made by electronic funds transfer to such account as may be specified in writing by Paul Carney or their legal representative. John Amodeo (Applicant 025) exclusion order 29 Pursuant to s 29 of the POCA, the interest of John Amodeo in the GSL Bud Accounts restrained by the orders made on 3 November 2022, together with any interest earned on that applicant's interest in the property while under restraint, is hereby excluded from restraint. The interest of John Amodeo in the GSL Bud Accounts is the proportional amount reflected in Schedule A to these orders as applied to the total value of the GSL Bud Accounts after all funds are converted into USD by the Official Trustee. 30 Leave is granted to John Amodeo to apply for an order pursuant to s 39(2)(d) of the POCA. 31 Pursuant to s 39(1)(e)(i) of the POCA, the Official Trustee is directed to pay to John Amodeo the value of the applicant's excluded interest, together with any interest earned on that amount while under restraint. Payment is to be made by electronic funds transfer to such account as may be specified in writing by John Amodeo or their legal representative. Marc van der Chijs (Applicant 026) exclusion order 32 Pursuant to s 29 of the POCA, the interest of Marc van der Chijs in the GSL Bud Account restrained by the orders made on 3 November 2022, together with any interest earned on that applicant's interest in the property while under restraint, is hereby excluded from restraint. The interest of Marc van der Chijs in the GSL Bud Accounts is the proportional amount reflected in Schedule A to these orders as applied to the total value of the GSL Bud Accounts after all funds are converted into USD by the Official Trustee. 33 Leave is granted to Marc van der Chijs to apply for an order pursuant to s 39(2)(d) of the POCA. 34 Pursuant to s 39(1)I(i) of the POCA, the Official Trustee is directed to pay to Marc van der Chijs the value of the applicant's excluded interest, together with any interest earned on that amount while under restraint. Payment is to be made by electronic funds transfer to such account as may be specified in writing by Marc van der Chijs or their legal representative. Yu Sun (Applicant 032) exclusion order 35 Pursuant to s 29 of the POCA, the interest of Yu Sun in the GSL Bud Account restrained by the orders made on 3 November 2022, together with any interest earned on that applicant's interest in the property while under restraint, is hereby excluded from restraint. The interest of Yu Sun in the GSL Bud Accounts is the proportional amount reflected in Schedule A to these orders as applied to the total value of the GSL Bud Accounts after all funds are converted into USD by the Official Trustee. 36 Leave is granted to Yu Sun to apply for an order pursuant to s 39(2)(d) of the POCA. 37 Pursuant to s 39(1)I(i) of the POCA, the Official Trustee is directed to pay to Yu Sun the value of the applicant's excluded interest, together with any interest earned on that amount while under restraint. Payment is to be made by electronic funds transfer to such account as may be specified in writing by Yu Sun or their legal representative. Carlitos Borja (Applicant 034) exclusion order 38 Pursuant to s 29 of the POCA, the interest of Carlitos Borja in the GSL Bud Accounts restrained by the orders made on 3 November 2022, together with any interest earned on that applicant's interest in the property while under restraint, is hereby excluded from restraint. The interest of Carlitos Borja in the GSL Bud Accounts is the proportional amount reflected in Schedule A to these orders as applied to the total value of the GSL Bud Accounts after all funds are converted into USD by the Official Trustee. 39 Leave is granted to Carlitos Borja to apply for an order pursuant to s 39(2)(d) of the POCA. 40 Pursuant to s 39(1)I(i) of the POCA, the Official Trustee is directed to pay to Carlitos Borja the value of the applicant's excluded interest, together with any interest earned on that amount while under restraint. Payment is to be made by electronic funds transfer to such account as may be specified in writing by Carlitos Borja or their legal representative. Ronald Myers (Applicant 037) exclusion order 41 Pursuant to s 29 of the POCA, the interest of Ronald Myers in the GSL Bud Accounts restrained by the orders made on 3 November 2022, together with any interest earned on that applicant's interest in the property while under restraint, is hereby excluded from restraint. The interest of Ronald Myers in the GSL Bud Accounts is the proportional amount reflected in Schedule A to these orders as applied to the total value of the GSL Bud Accounts after all funds are converted into USD by the Official Trustee. 42 Leave is granted to Ronald Myers to apply for an order pursuant to s 39(2)(d) of the POCA. 43 Pursuant to s 39(1)I(i) of the POCA, the Official Trustee is directed to pay to Ronald Myers the value of the applicant's excluded interest, together with any interest earned on that amount while under restraint. Payment is to be made by electronic funds transfer to such account as may be specified in writing by Ronald Myers or their legal representative. Xiao Ni Xu (Applicant 039) exclusion order 44 Pursuant to s 29 of the POCA, the interest of Xiao Ni Xu in the GSL Bud Accounts restrained by the orders made on 3 November 2022, together with any interest earned on that applicant's interest in the property while under restraint, is hereby excluded from restraint. The interest of Xiao Ni Xu in the GSL Bud Accounts is the proportional amount reflected in Schedule A to these orders as applied to the total value of the GSL Bud Accounts after all funds are converted into USD by the Official Trustee. 45 Leave is granted to Xiao Ni Xu to apply for an order pursuant to s 39(2)(d) of the POCA. 46 Pursuant to s 39(1)I(i) of the POCA, the Official Trustee is directed to pay to Xiao Ni Xu the value of the applicant's excluded interest, together with any interest earned on that amount while under restraint. Payment is to be made by electronic funds transfer to such account as may be specified in writing by Xiao Ni Xu or their legal representative. Lawrence Jou (Applicant 041) exclusion order 47 Pursuant to s 29 of the POCA, the interest of Lawrence Jou in the GSL Bud Accounts restrained by the orders made on 3 November 2022, together with any interest earned on that applicant's interest in the property while under restraint, is hereby excluded from restraint. The interest of Lawrence Jou in the GSL Bud Accounts is the proportional amount reflected in Schedule A to these orders as applied to the total value of the GSL Bud Accounts after all funds are converted into USD by the Official Trustee. 48 Leave is granted to Lawrence Jou to apply for an order pursuant to s 39(2)(d) of the POCA. 49 Pursuant to s 39(1)(e)(i) of the POCA, the Official Trustee is directed to pay to Lawrence Jou the value of the applicant's excluded interest, together with any interest earned on that amount while under restraint. Payment is to be made by electronic funds transfer to such account as may be specified in writing by Lawrence Jou or their legal representative. Ven Tow Lee (Applicant 043) exclusion order 50 Pursuant to s 29 of the POCA, the interest of Ven Tow Lee in the GSL Bud Accounts restrained by the orders made on 3 November 2022, together with any interest earned on that applicant's interest in the property while under restraint, is hereby excluded from restraint. The interest of Ven Tow Lee in the GSL Bud Accounts is the proportional amount reflected in Schedule A to these orders as applied to the total value of the GSL Bud Accounts after all funds are converted into USD by the Official Trustee. 51 Leave is granted to Ven Tow Lee to apply for an order pursuant to s 39(2)(d) of the POCA. 52 Pursuant to s 39(1)I(i) of the POCA, the Official Trustee is directed to pay to Ven Tow Lee the value of the applicant's excluded interest, together with any interest earned on that amount while under restraint. Payment is to be made by electronic funds transfer to such account as may be specified in writing by Ven Tow Lee or their legal representative. Humphrey Company Limited (Applicant 044) exclusion order 53 Pursuant to s 29 of the POCA, the interest of Humphrey Company Limited in the GSL Bud Accounts restrained by the orders made on 3 November 2022, together with any interest earned on that applicant's interest in the property while under restraint, is hereby excluded from restraint. The interest of Humphrey Company Limited in the GSL Bud Accounts is the proportional amount reflected in Schedule A to these orders as applied to the total value of the GSL Bud Accounts after all funds are converted into USD by the Official Trustee. 54 Leave is granted to Humphrey Company Limited to apply for an order pursuant to s 39(2)(d) of the POCA. 55 Pursuant to s 39(1)I(i) of the POCA, the Official Trustee is directed to pay to Humphrey Company Limited the value of the applicant's excluded interest, together with any interest earned on that amount while under restraint. Payment is to be made by electronic funds transfer to such account as may be specified in writing by Humphrey Company Limited or their legal representative. Lanping Li (Applicant 045) exclusion order 56 Pursuant to s 29 of the POCA, the interest of Lanping Li in the GSL Bud Accounts restrained by the orders made on 3 November 2022, together with any interest earned on that applicant's interest in the property while under restraint, is hereby excluded from restraint. The interest of Lanping Li in the GSL Bud Accounts is the proportional amount reflected in Schedule A to these orders as applied to the total value of the GSL Bud Accounts after all funds are converted into USD by the Official Trustee. 57 Leave is granted to Lanping Li to apply for an order pursuant to s 39(2)(d) of the POCA. 58 Pursuant to s 39(1)I(i) of the POCA, the Official Trustee is directed to pay to Lanping Li the value of the applicant's excluded interest, together with any interest earned on that amount while under restraint. Payment is to be made by electronic funds transfer to such account as may be specified in writing by Lanping Li or their legal representative. Variation to orders in respect of GSL BUD 291 Account 59 Pursuant to rule 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW), orders 1 to 3 made on 30 April 2024 are varied insofar as they relate to the GSL Bud Accounts so that those orders read as follows: a) Pursuant to s 29 of the POCA, the interest of each applicant in the property restrained by the orders made on 3 November 2022, being the GSL Bud Accounts, together with any interest earned on that applicant's interest in that property while under restraint, is hereby excluded from restraint. The interest of each applicant in that restrained property is the proportional amount of the amount set out against the name of that applicant in the Schedule A attached to these orders as applied to the total value of the GSL Bud Accounts after all funds are converted into USD by the Official Trustee. b) Leave is granted to each applicant to apply for an order pursuant to s 39(2)(d) of the POCA. c) Pursuant to s 39(1)I(i) of the POCA, the Official Trustee is directed to pay to each applicant the proportional amount set out next to the name of that applicant in the attached Schedule A as applied to the total value of the GSL Bud Accounts after all funds are converted into USD by the Official Trustee, together with any interest earned on that amount or those amounts while under restraint. Payment is to be made by electronic funds transfer to such account as may be specified in writing by each applicant or their legal representative. Transfer of funds in currency in which restrained funds are held 60 Pursuant to section 39(1)(e) of the POCA, the Official Trustee is directed to pay each of the successful applicants for exclusion orders the relevant funds in USD. SCHEDULE A Proceedings no. Applicant name Applicant's interest in United States of America Dollars (USD) 034 Carlitos Borja USD 3,605.90 006 Castle Bespoke Management USD 6,002.94 016 Fei Tan USD 2,247.86 014 Harwin Group Inc USD 4,498.18 044 Humphrey Company Ltd USD 101,351.09 018 James McBrayer USD 2,252.47 002 James Nadel USD 85,030.71 025 John Amodeo USD 146,410.50 045 Lanping Li USD 99,094.04 041 Lawrence Jou USD 27,026.26 026 Marc van der Chijs USD 177,941.70 015 Mei McNeilly USD 1,790.71 021 Paul Carney USD 45,049.38 037 Ronald Myers USD 49,544.30 043 Ven Tow Lee USD 225,242.43 039 Xiao Ni Xu USD 112,620.09 009 Xiao Yan Dong USD 18,004.03 032 Yu Sun USD 40,562.48 Total USD 1,148,275.08

1. I make the following additional orders: (1) The hearing date of 8 August 2024 is vacated. (2) Costs in relation to all applications are to be determined on the papers. I note that orders have been made with respect to evidence and submissions on costs in relation to the original applicants. The parties that were to participate in the hearing on 8 August 2024 are to agree on a timetable for evidence and submissions are to notify my Associate of this timetable by close of business on 2 August 2024.

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