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Representation: Counsel:
A Tembe (Plaintiff)
Solicitors:
Joy Samuel (Plaintiff)

File Number(s): 2018/320403

Publication restriction: Nil.

JUDGMENT

1. The plaintiff moves on an amended notice of motion filed on 3 February 2026 for summary judgment pursuant to r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) in respect of a claim for an order under s 22 of the Criminal Assets Recovery Act 1990 (NSW) that the defendant’s interest in property, namely $165,000 in cash seized by NSW Police on 7 February 2018 during the search of a car driven by the defendant and any interest accrued thereon, be forfeited to and vest in the Crown on the basis that the defendant is suspected by an authorised officer of having engaged in serious crime related activity or activities.

Absence of the defendant.

2. The plaintiff had experienced difficulty in locating the defendant and serving documents upon him. Substituted service orders were made by the Court. The defendant appeared on 15 April 2026; the date fixed for the hearing of the amended notice of motion. I was satisfied from what was said by the defendant on that occasion that he had received copies of the documents relied upon by the plaintiff.

3. The defendant sought an adjournment which was opposed. The basis of the application was to allow time for the defendant to obtain legal advice and representation. The application was granted although costs of the day were reserved. The hearing was adjourned to Monday 22 May 2026 with a mention also scheduled for Monday 11 May 2026. The defendant was required to file and serve any evidence he proposed to rely upon at the hearing by 4pm on Friday 8 May 2026.

4. No evidence was filed or served. The defendant did not appear on 11 May 2026 or on 22 May 2026. On the morning of 22 May 2026, he advised by email to my Associate that he would appear by AVL but subsequently advised in a further email that he could not appear and that the Court should, “Please proceed without me”. The plaintiff sought that the hearing proceed in the defendant’s absence. Noting the provision in s 22(10) (see below) and having regard to the circumstances outlined above, the Court acceded to that request.

Background

The criminal proceedings

5. The defendant was arrested by police on 7 February 2018 and charged with an offence in Pt 4AC (headed “Money Laundering”) of the Crimes Act 1900 (NSW), namely:

193C Dealing with property suspected of being proceeds of crime

…

(1) A person is guilty of an offence if—

(a) the person deals with property, and

(b) there are reasonable grounds to suspect that the property is proceeds of crime, and

(c) at the time of the dealing, the value of the property is $100,000 or more but less than $5 million.

Maximum penalty—Imprisonment for 5 years.

6. The allegation was that he was found in a car in possession of a bag containing $165,000 in cash. It was alleged in a “Fact Sheet” that he gave an explanation:

The accused was placed under arrest, cautioned and questioned about the cash to which he said it was his and he had just collected it from his dad's house in the Central Coast. The accused did not know the amount of cash although said there was more than $100,000. The accused alleged the cash was from the proceeds of the sale of his house and cafe four years ago.

7. The defendant pleaded not guilty but on 21 December 2018 was found guilty in the Local Court and sentenced to an intensive correction order for 12 months, with a requirement to perform 250 hours of community service work. He appealed to the District Court against his conviction but on 1 August 2019 the appeal was dismissed.

8. On 29 August 2019, he emailed a request to the chambers of the District Court judge to state a case under s 5B of the Criminal Appeal Act 1912 (NSW). The judge’s associate replied the following day advising that the judge had declined to state a case. He filed a summons in this Court seeking judicial review of the refusal to state a case. The matter was transferred to the Court of Appeal which, on 3 August 2020, dismissed the summons and ordered the applicant (the defendant now in this Court) to pay the respondent’s costs.

Proceedings under the Criminal Assets Recovery Act

9. The plaintiff filed its summons on 18 October 2018. In Prayer 6, it sought the asset forfeiture order pursuant to s 22 of the Civil Assets Recovery Act*,* that is, the subject of the amended notice of motion. In Prayer 7, it sought an unexplained wealth order pursuant to s 28A which is now sought to be dismissed.

10. An affidavit sworn by Jonathan Spark, an authorised officer as defined in s 4(1) of the Civil Assets Recovery Act*,* was filed with the summons. Mr Spark set out his suspicion, and the basis for it, that the defendant had engaged in a serious crime related activity (within the meaning of that term in s 6 of the Act) which included that the defendant had dealt with property reasonably suspected of being the proceeds of crime, contrary to s 193C(1) of the Crimes Act.

11. The defendant was personally served with a copy of the plaintiff’s summons, Mr Spark’s affidavit and related documents on 5 November 2018.

12. The plaintiff filed a notice of motion on 23 October 2024 seeking summary judgment in the terms set out above (at [1]). On 3 February 2026 it filed an Amended Notice of Motion, although the only change was to include that there would be no order as to costs. This and all other relevant documents, together with information that the hearing had been set down on 15 April 2026 was provided to the defendant by means of substituted service permitted by orders of the Court on 15 December 2025.

Summary judgment principles

13. The plaintiff helpfully set out the principles pertaining to an application for summary judgment as follows :

[19] Rule 13.1 of the [Uniform Civil Procedure Rules] allows a plaintiff to apply for summary judgment where a defendant has entered an appearance and there is evidence that the defendant has no defence. As observed by Beazley JA (with Hodgson and Tobias JJAs agreeing) in Ollis v NSWCC:

[31] The general principles relating to the summary disposal of proceedings are well known. The absence of, relevantly, a defence, must be clearly demonstrated: General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125 at 129; [1964] HCA 69 [8]-[10]. If it is demonstrated that there is a real question to be tried, the matter is inappropriate for the entry of summary judgment: Dey v Victorian Railway Commissioners (1949) 78 CLR 62; [1949] HCA 1. The tests stated in the authorities as to whether it is appropriate that a case be disposed of by the entry of summary judgment include statements such as that the matter is “so obviously untenable that it cannot possibly succeed”; “manifestly groundless” or “would involve useless expense”: General Steel Industries at 129 [8].

[32] The summary disposal of proceedings or part thereof deprives a party of the right to a contested hearing. For that reason it is said that the requirement for establishing that there is no arguable defence or that a defence is manifestly groundless is demanding: Air Services Australia v Zarb (NSWCA, 26 August 1998, unreported). In Webster & Anor v Lampard (1993) 177 CLR 598; [1993] HCA 57, Mason CJ, Deane and Dawson JJ said at 602-603 [5]:

“… the issue before the learned Master on the application for summary judgment was not whether [the plaintiffs] would probably succeed in their action against [the defendant]. It was whether the material before the Master demonstrated that that action should not be permitted to go to trial in the ordinary way because it was apparent that it must fail. The power to order summary judgment must be exercised with ‘exceptional caution’ and ‘should never be exercised unless it is clear that there is no real question to be tried’

…

Nowhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact. In such a case, it is essential that ‘great care … be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal’.” (Citations omitted).

[20] To be granted summary judgment, a plaintiff must comply strictly with the procedural requirements of the rules, show that there is no defence to the claim10 and apply for the remedy promptly. When considering an application for summary judgment the court must give effect to the overriding purpose of the Civil Procedure Act 2005 (NSW) and the rules of court: s 56(2).

[21] To find the necessary jurisdiction, the defendant must have filed an appearance. Michael Ayache of One Group Legal filed an appearance in this matter on 15 Jan 2019. On 26 September 2024, Michael Ayache filed a Notice of Ceasing to Act in this matter, and the Defendant currently remains self-represented.

[22] A defendant may oust the jurisdiction to grant summary judgment by showing some fault with the plaintiff’s application or showing that the claim is not one which could be disposed of summarily, or that there is some factual dispute, which, if resolved in their favour raises some defence.

(Footnotes omitted.)

14. Evidence of the defendant having filed an appearance was provided today by way of the plaintiff adding to the Court Book at tab 5A the Notice of Appearance filed by Mr Ayache, solicitor, referred to in plaintiff’s submissions.

Assets forfeiture orders

15. The principal objects of the Civil Assets Recovery Act set out in s 3 include:

3 Principal objects

The principal objects of this Act are—

(a) to provide for the confiscation, without requiring a conviction, of property of a person if the Supreme Court finds it to be more probable than not that the person has engaged in serious crime related activities, and

…

(b) to enable the proceeds of illegal activities of a person to be recovered as a debt due to the Crown if the Supreme Court finds it more probable than not the person has engaged in any serious crime related activity or acquired proceeds of the illegal activities of such a person, and

…

16. The term, “serious crime related activity”, is defined, relevantly for present purposes in s 6 as follows:

6 Meaning of “serious crime related activity”

(1) In this Act, a reference to a serious crime related activity of a person is a reference to anything done by the person that was at the time a serious criminal offence, whether or not the person has been charged with the offence or, if charged—

(a) has been tried, or

(b) has been tried and acquitted, or

(c) has been convicted (even if the conviction has been quashed or set aside).

(2) In this section—

…

serious criminal offence means the following offences—

…

(d) an offence punishable by imprisonment for 5 years or more involving theft, fraud, obtaining financial benefit from the crime of another person, money laundering, extortion, violence, bribery, corruption, harbouring criminals, blackmail, obtaining or offering a secret commission, perverting the course of justice, tax or revenue evasion, illegal gambling, forgery or homicide,

…

17. The term, “interest in property”, is defined, relevantly for present purposes in s 7 as follows:

7 Meaning of “interest in property”

(1) In this Act, a reference to an interest of a person in property is a reference to—

(a) an interest the person has in real or personal property, or

…

(2) Without limiting the generality of subsection (1), a reference in this Act to an interest of a person in property includes a reference to—

(a) the person’s money, and

…

18. Section 9B of the Act defines “available interest relating to serious crime use property”, the term used in s 22(2B), as follows:

9B Meaning of “serious crime use property” and “available interest relating to serious crime use property”

(1) In this Act, a reference to serious crime use property is a reference to property that was used in, or in connection with, a serious crime related activity.

(2) In this Act, an interest in property is an available interest relating to serious crime use property if—

(a) the interest is an interest of a person who has engaged in serious crime related activity (the offender), and

(b) the offender’s activity resulted in the property, or any other property, becoming serious crime use property for the purposes of this Act, and

(c) the property is either the serious crime use property or, if that property is not available for forfeiture as referred to in subsection (3), any other property that is the subject of a substituted serious crime use property declaration.

(3) Serious crime use property is not available for forfeiture if—

(a) the offender does not own, and does not have effective control of, the property, or

(b) the property has been sold or otherwise disposed of or cannot be found for any other reason.

19. Section 22 of the Act, relevantly, provides:

22 Making of assets forfeiture order

(1) The Commission may apply to the Supreme Court for an order forfeiting to, and vesting in, the Crown specified interests, a specified class of interests or all the interests, in property of a person (an assets forfeiture order).

…

(2B) The Supreme Court must make an assets forfeiture order in respect of an interest in property if the Court finds it more probable than not that the interest is an available interest relating to serious crime use property.

…

(4) When an assets forfeiture order is made it must be made so as to apply to specified interests in property.

…

(9) Notice of an application under this section is to be given to a person to whom the application relates and the person may appear, and adduce evidence, at the hearing of the application.

(10) The absence of a person entitled to be given notice of an application for an assets forfeiture order does not prevent the Court from making the order.

Discussion

Engagement in “serious crime related activity”

20. There is no doubt that the defendant has been convicted of the offence of dealing with the proceeds of crime contrary to s 193C(1) of the Crimes Act. A certificate of conviction from the District Court of New South Wales issued pursuant to s 178 of the Evidence Act 1995 (NSW) confirms the defendant’s conviction in respect of the following:

21. The offence is one which is punishable by imprisonment for 5 or more years and is in the nature of money laundering according to the heading of Pt 4AC of the Crimes Act in which s 193C is found. It thus falls within the definition of “serious criminal offence” pursuant to s 6(2) of the Act.

22. I am satisfied on the balance of probabilities the defendant engaged in a “serious crime related activity” for the purposes of s 9B(2)(a) of the Act.

The seized cash is an “available interest relating to serious crime use property”

23. According to the initial police fact sheet, on 7 February 2018, the defendant and another person were in a vehicle which was stopped by police. Inside the car police found multiple mobile phones, 10 vials of testosterone in the centre console, and $165,000 in a plastic bag in the rear passenger footwell. The defendant made full admissions to possession of the steroids and the cash. [1]

24. O’Rourke DCJ observed in her judgment dismissing the defendant’s appeal against conviction:

The facts comprised in the Crown case are not really in dispute. It is an interpretation of them, and whether they amount to forming reasonable grounds to suspect the cash found in the Aldi bag (to which the appellant claimed full ownership of) is proceeds of crime.

25. The seized cash was used in, or in connection with, a “serious crime related activity” and thus is “serious crime use property”. It also amounts to an “available interest relating to serious crime use property” by meeting the description of each of s 9B(2)(a), (b) and (c) of the Act. I am satisfied of each of these matters on the balance of probabilities.

26. Upon making those findings it became mandatory pursuant to s 22(2B) of the Civil Assets Recovery Act for the Court to make an asset forfeiture order.

27. The only matter remaining to be determined is whether it is open in the exercise of the Court’s discretion to proceed to summary judgment.

Summary judgment

28. It appears incontrovertible on the evidence that there is no prospect of the defendant raising any cogent basis upon which he could contest the admissibility of proof of his conviction for the offence in question.

29. It also appears highly unlikely that the defendant could raise some factual matter that might call into question any matter fundamental to proof of the offence. This is particularly so when he, at all stages, admitted possession of the cash and failed in both the Local Court and the District Court to negate the inference relied upon by the prosecution as to the reasonably suspected source of it. The same applies to the matters required to be proved by the plaintiff to obtain an order under s 22 of the Civil Assets Recovery Act.

30. In these circumstances, the evidence of a “responsible person” for the purposes of r 13.1(b) of the Uniform Civil Procedure Rules, namely Lee Clough, [2] of his belief that the defendant has no defence to the plaintiff’s claim for relief by way of an asset forfeiture order must be accepted.

31. I accept the submission of the plaintiff that it is inevitable that if the matter proceeded to hearing, the plaintiff’s evidence would lead to the granting of the order sought in Prayer 6 of the summons.

Ancillary orders

32. The amended notice of motion seeks ancillary orders that are not adverse to the defendant’s interests and have the effect that the proceedings will be concluded by this judgment. Those orders will be made.

Costs

33. Whilst the amendment to the notice of motion provided that there be no order for costs, there is the issue of the costs reserved in respect of the adjournment of the hearing on 15 April 2026 at the defendant’s behest. The effect of such an order being made was explained to the defendant on that date and he raised no objection.

34. An affidavit of Ms Joy Samuel, solicitor for the plaintiff, sworn 21 May 2026, provided evidence of such costs being counsel’s fees for 15 April 2026 of $1550 + GST. A gross sum costs order is appropriate in the circumstances.

Orders

35. Orders were announced at the conclusion of the hearing earlier today. Prior to the orders being entered up, the terms of Order 1 were the subject of a minor amendment in order that it was more closely aligned with s 22(2B) of the Civil Assets Recovery Act. The following orders are made:

36. Pursuant to Rule 13.1 of the Uniform Civil Procedure Rules 2005, judgment be given for the plaintiff on its claim for an order pursuant to section 22 of the Criminal Assets Recovery Act 1990 that the Defendant’s interest in the property specified in the Schedule hereto and any interest accrued thereon, it being an available interest relating to serious crime use property, be forfeited to, and vest in, the Crown.

37. The application for an order pursuant to section 28A of the Criminal Assets Recovery Act 1990 be dismissed.

38. The defendant is to pay the plaintiff’s costs in the sum of $1705 in respect of the adjournment of the hearing on 15 April 2026.

39. The proceedings are otherwise discontinued with no further order as to costs.

SCHEDULE

Cash in the amount of $165,000 seized by New South Wales Police on 7 February 2018 during a vehicle search of the vehicle with number plate CK72XF driven by Mark Thomas Forrest and currently held by the NSW Trustee and Guardian.

**********

Endnotes

Tab 11 in Exhibit LC-1, Affidavit of Lee Clough dated 19 September 2024.

Affidavit of Lee Clough sworn 19 September 2024 at [25]; Affidavit of Lee Clough sworn 6 March 2025 at [8].