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[2026] NSWSC 564
Supreme Court of NSW
2026-05-18
Emmett J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: New South Wales Crime Commission v Hammoud [2026] NSWSC 564
Hearing dates: 7 May 2026, 8 May 2026 and 18 May 2026
Date of orders: 18 May 2026
Decision date: 18 May 2026
Jurisdiction: Common Law
Before: Emmett J
Decision: At [69].
Catchwords: CRIME – Confiscations – Restraining order – orders made pursuant to Criminal Assets Recovery Act 1990 – where order is sought ex parte over all of a defendant’s assets anywhere in the world – where defendant is living in community on bail – whether Court should defer consideration of s 10B(3)(a) until the first return date – whether Court has power to make allowance for reasonable living expenses under s 10B(3)(a) in an ex parte application before receiving evidence from the defendant about what his living expenses are or the size of the total restrained asset pool – finding that Court’s discretion under s 10B(3)(a) allows for the Court to exercise its discretion to allow for reasonable living expenses when making ex parte orders – approach to be adopted to determine allowance for living expenses in absence of specific proposed expenses
Original judgment source is linked above.
Legislation Cited: Crimes Act 1900 (NSW), s 193B
Criminal Assets Recovery Act 1990 (NSW), ss 3, 4, 5, 6, 10, 10A, 10B, 16A, 16B, 25
Drug Misuse and Trafficking Act 1985 (NSW), s 25
Cases Cited: Cardile v LED Builders (1999) 198 CLR 380; [1999] HCA 18
Clout v Anscor Pty Ltd [2001] FCA 174
Frigo v Culhaci [1998] NSWCA 88
Goumas v McIntosh [2002] NSWSC 713
International Skin Care Suppliers Pty Ltd v Whyte [2011] NSWSC 46
J Chen v D Xu [2015] NSWSC 1697
New South Wales Crime Commission v Besodi, unreported, NSWSC, 17 January 1996
New South Wales Crime Commission v Fleming & Neal (1991) 24 NSWLR 116
New South Wales Crime Commission v Kelaita (2008) 75 NSWLR 564; [2008] NSWCA 284
New South Wales Crime Commission v Younan (1993) 31 NSWLR 44
Westpac Banking Corporation v McArthur [2007] NSWSC 1347
Texts Cited: Drug Trafficking (Civil Proceedings) Bill 1990, Second Reading Speech (Legislative Assembly), 8 May 1990
Drug Trafficking (Civil Proceedings) Bill 1990, Second Reading Speech (Legislative Council), 23 May 1990
Category: Principal judgment
Parties: New South Wales Crime Commission (Plaintiff)
Mohammed Hammoud (Defendant, No appearance)
Representation: Counsel:
M Pruscino (Plaintiff)
Solicitors:
New South Wales Crime Commission (Plaintiff)
File Number(s): 2026/00209467
Publication restriction: Nil
This is an ex parte application for orders under the Criminal Assets Recovery Act 1990 (NSW) (‘CAR Act’).
The defendant is suspected of having engaged in the following “serious criminal offences” as defined in s 6(2) of the CAR Act:
knowingly dealing with proceeds of crime contrary to s 193B(2) of the Crimes Act 1900 (NSW), being an offence involving money laundering and punishable by imprisonment for 5 years of more, falling within subs (d) of the definition of "serious criminal offence" pursuant to s 6(2) of the CAR Act, and
supplying prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), being an offence falling within subs (e) of the definition of “drug trafficking offence” pursuant to s 6(2) of the CAR Act; and
knowingly taking part in supply of prohibited drug not less than large commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), being an offence falling within subs (e) of the definition of “drug trafficking offence” pursuant to s 6(2) of the CAR Act.
The grounds on which Mr Oliver, the authorised officer as defined in s 4(1) of the CAR Act, holds his suspicions are:
a Facts Sheet obtained from the NSW Police which he has exhibited to his affidavit;
that he enquired of the officer who prepared the Facts Sheet about whether the officer believed it was true, and whether information was obtained by the Police as a result of the investigation described in the Facts Sheet – and the officer confirmed that; and
that the deponent of the affidavit before me also obtained the Crown Case Statement that was current as at October 2025.
The matters in the Crown Case Statement and the NSW Police Facts Sheet provide reasonable grounds for the suspicion to which Mr Oliver deposes.
Further, having regard to the source of information and the terms of the email with the police officer who prepared the Facts Sheet, I am satisfied that it was reasonable for Mr Oliver to form his suspicion on the assumption that the contents of the Facts Sheet were true. For those reasons I consider that there are reasonable grounds for suspicion on which the plaintiff relies.
I am further satisfied on the material in the evidence before me, that the defendant is domiciled in New South Wales. Since he is domiciled in New South Wales, restraining orders can be made against him in respect of property outside NSW: s 10A(3) of the CAR Act.
I am satisfied, subject to what I say below about reasonable living expenses, that this is a case in which it is appropriate for the restraining order to extend to all of the defendant's assets, wherever they are in the world.
Section 10A(4) enables notice to be given to the defendant before the order is made if the Court thinks fit. I am satisfied that it is appropriate not to give the defendant notice of this order before I make it. The risk of property being disposed of or transferred, if the defendant has notice before an order is made, warrants making an order ex parte without notice.
I turn to the question of reasonable living expenses under s 10B(3)(a) in circumstances where, as I have indicated, the order is sought over all of the defendant’s assets, anywhere in the world.
The plaintiff resists any such provision being made unless and until the defendant seeks it, and then only in an amount that is supported by such evidence as the defendant may adduce. In orders made inter partes, or in circumstances where a restraining order is only made over specific property, there is considerable force in the Court taking this approach – although I stress it will always be a matter for the Court’s discretion. Where, as in this case, an order is sought ex parte over all of a defendant’s assets anywhere in the world, and the defendant is living in the community on bail, for the reasons that follow, I am unable to accept that the Court should defer any consideration of s 10B(3)(a) until the first return date.
The plaintiff submits that the exercise of the discretion in s 10B(3)(a) requires the Court itself to assess the reasonableness of the provision for living expenses, which unavoidably involves consideration of identified expenses and whether those identified expenses answer the description of living expenses in all the circumstances.
The plaintiff seeks to distil four propositions said to be drawn from the CAR act:
The subsection reposes on the Court responsibility to assess reasonableness of expenses.
The task requires consideration of whether identified expenses are reasonable.
Assessment of reasonable living expenses unavoidably requires evidence:
(a) about necessities of a particular person and/or their defendants; and (b) some degree of quantification.
Discretion to order provision from restrained assets will not be exercised in the absence of evidence from an affected person.
While I agree that the Court needs to be satisfied that it is appropriate to make provision under s 10B(3)(a), there is nothing in the text of the CAR Act that indicates that this requires the Court in every case to weigh up specific proposed expenses. I will return to the practice – which strikes me as entirely consistent with the CAR Act – of making provision under s 10B(3)(a) for living expenses by determining maximum figures that may be spent on particular categories of legal expenses, and I will also return to a practice that occurs in other contexts, of fixing an allowance for living expenses by reference to particular fixed amounts that may be spent weekly or in some other period.
The Court’s assessment about whether or not to make an order under s 10B(3)(a) and if so in what terms must be informed by the language, scope and purpose of the CAR Act.
The principal objects of the CAR Act are as follows:
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
(a1) to enable the current and past wealth of a person to be recovered as a debt due to the Crown if the Supreme Court finds there is a reasonable suspicion of one or more of the following, unless the person can establish the wealth was lawfully acquired—
(i) the person has engaged in a serious crime related activity,
(ii) the person has acquired proceeds from the serious crime related activity of another person,
(iii) the person’s current or previous wealth significantly exceeds the value of the person’s lawfully acquired wealth, 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
(b1) to provide for the confiscation, without requiring a conviction, of property of a person that is illegally acquired property held in a false name or is not declared in confiscation proceedings, and
(c) to enable law enforcement authorities effectively to identify and recover property.
[T]here is special provision to allow the Supreme Court to make adequate provision to avoid hardship to the spouse, children and other dependants who are members of the person’s household. I would, however, emphasise to honourable members that the intent of the legislation is to place the onus squarely on those who benefit indirectly from drug activities to show that they are bona fide and without notice. That is fundamental.
It is a clear signal to the underworld and also to those involved in legitimate commercial activity that they should go nowhere near the drug trade; they should ostracise the drug trade; they should avoid any involvement at all.
[T]he Supreme Court is empowered to make adequate provision to avoid hardship to the spouse, children and other dependants who are members of the person’s household.
However, it should be emphasised that this provision is not intended to enable families to maintain a standard of living which they enjoy only because of wealth accumulated through the drug trade. It is merely designed to ensure that dependants’ basic living expenses can be met. I would also emphasise to honourable members that the intent of the legislation is to squarely place the onus on those who benefit indirectly from drug activities to show that they are bona fide and without notice. That is fundamental. It is a clear signal to the underworld and also to those involved in legitimate commercial activity that they should not go anywhere near the drug trade; they should ostracise the drug trade; they should avoid any involvement at all. Otherwise, they will be put in the position where, at the very least, they may have to prove that their dealings are genuine commercial transactions without notice of illegality.
The references to showing that benefits are bona fide and without notice make it clear that while both second reading speeches referred to the onus being on the affected person, they are referring, at least in part, to applications for exclusion orders under s 25. They do not, in my view, provide a basis for discerning any implicit preconditions to the Supreme Court’s exercise of its power under what was then s 10(5)(a) and is now s 10B(3)(a).
Subsequent authority, while it provides guidance as to the Court’s discretion, does not, in my view, support a conclusion that there are any implied restrictions on the Court’s discretion in s 10B(3)(a), other than that the exercise of the discretion should take into account the language, scope and purpose of the CAR Act.
The Commission understandably draws attention to the observations of Allsop P in NSW Crime Commission v Kelaita (2008) 75 NSWLR 564; [2008] NSWCA 284 at [12], about the Premier’s second reading speech on 8 May 1990:
Further, the speech recognised that the legislation might be perceived to be unfair by some. It was certainly intended to be tough. Again, these were rhetorical statements which do not assist in resolving questions about the precise linguistic content of the present text. They do, however, assist in appreciating that unless the express safeguards provided for in the Act (often resting on a reversed onus) are engaged, it may be seen as surprising to interpret or construe the Act in a way based on “fairness” to the person proved to have been engaged in serious crime related activities. Indeed, as will be seen, the Act provides in terms for operation of the machinery of recovery in ways that, from one perspective, could be taken to display an element of unfairness.
Section 10B(3)(a) is one of the “express safeguards” and should be interpreted according to its terms. Unlike other provisions which expressly rest on a reversed onus, s 10B(3)(a) places no onus on any party. I will return to questions of onus, but there is every reason to think that the Court can make such provision of its own motion, especially mindful that restraining orders might be made ex parte.
In NSW Crime Commission v Fleming & Neal (1991) 24 NSWLR 116 at 120-121, Gleeson CJ made the following observations (Hope AJA agreeing):
[T]he Court is required, when considering the subject of living expenses or legal expenses, to address the question of reasonableness. The policy behind this is obvious. The property involved is potentially subject to confiscation and forfeiture, and, whilst justice may dictate that the owner should not be deprived of the necessary means of meeting living expenses or legal expenses, that qualification only operates in so far as the expenses in contemplation are reasonable… [N]o standard or measure of reasonableness in relation to … living … expenses is provided by the Act.
Plainly, when making an order under s 10B(3)(a), the Court must be satisfied that it is making orders for reasonable living expenses and not for some other purpose. There are different ways in which the Court can address the question of reasonableness. One would be to allow only specific expenses. Another would be to allow a particular figure each week, fortnight or other period for living expenses, being a figure which the Court is satisfied to be no more than is necessary to meet reasonable living expenses. A third would be to permit only “reasonable” living expenses or “ordinary” living expenses, leaving a defendant at risk if they incur expenses and the Court later concludes that such expenses are not “reasonable” or “ordinary” as the case may be. I will return to reasons in favour of making an order of the third kind, but I accept that a relevant consideration, which weighs against it, is that it leaves a defendant having to make judgments about matters where the consequences may be contempt or criminal liability under ss 16 and 53. As I explain in these reasons, this Court frequently makes orders that include a standard of reasonableness, including in relation to freezing orders. I do not accept that such an order would be ultra vires the CAR Act.
The other authority of this Court to which my attention was drawn, which deals with reasonable living expenses, is the decision of Justice Sully in NSW Crime Commission v Besodi, unreported, NSWSC, 17 January 1996. In that decision, his Honour referred to the observations of the Court of Appeal in NSW Crime Commission v Younan (1993) 31 NSWLR 44 at 50, a case dealing with reasonable legal expenses, in the following terms:
I have been referred during the course of argument to two decisions, in particular, of this Court. One is a first instance decision of Badgery-Parker J: State Drug Crime Commission of New South Wales v Ukja & Anor (unreported; 20 December 1990). The other is a decision of the Court of Appeal of this Court: New South Wales Crime Commission v [Younan] (1993) 31 NSWLR [44].
It is, I think, not possible to say of those decisions that they establish anything more than that the discretion which the Court has to grant or to withhold relief under s10(5)(a) is a wide-ranging judicial discretion, the exercise of which in a particular case will necessarily depend upon the given circumstances of that case.
The decision of the Court of Appeal, certainly, suggests some considerations which seem to me to be relevant to the present application. They are stated by the Court of Appeal as being the apparent strength of the prosecution case against the alleged offender; the size of the property involved; the probable amount that will be released if orders are made in terms of the relief sought; and the effect of the making of any orders upon what is described by the Court of Appeal as “the achievement of the purposes of the Act which is to restrain the disposal of property, to abide orders under the Act following the completion of proceedings.”
What is required in each case is an exercise of the judicial discretion pursuant to the subsection. That discretion will take into account the purposes of the Act (including the preservation of property allegedly derived in whole or in part from criminal activities) and correlatively, the reasonable demands of a person for access to that person’s own property…
None of these observations support a conclusion that the Court, when it makes ex parte orders, cannot make provision for reasonable living expenses, including without the benefit of evidence from a defendant (which the Court necessarily will not have at that stage).
While the plaintiff places weight on the special restrictions in ss 16A and 16B in relation to legal expenses, it seems to me that those provisions militate against the plaintiff’s arguments. Parliament has made special provision, including the imposition of strict preconditions, on any order making provision for the payment of any legal expenses. No equivalent preconditions or restrictions are imposed in relation to reasonable living expenses. That is also, in my view, why the restrictions in Younan in relation to legal expenses do not necessarily assist in the context of a statute where Parliament has since placed special restrictions on legal expenses, reflecting the kind of considerations in Younan, but has not placed such restrictions on living expenses.
In saying this, I accept the plaintiff’s submission that an assessment of reasonableness may be informed, where practicable, by the considerations that emerge in Younan relating to weighing up expenses against the pool of assets available and the strength of the prosecution case. However, to the extent that those matters arise, they are matters that will need to be taken into account on the basis of the evidence before the Court.
Similarly, a submission was made that under the CAR Act there is an express provision that no legal expenses should be met from property which is illegally required: s 16A(1)(b). I was invited to infer that an intention in the CAR Act was that reasonable living expenses should similarly not be met from such property. The difficulty I have with drawing that inference is that the express provision that Parliament has made for legal expenses, while not making an equivalent provision for living expenses, would tend to undermine that inference.
A relevant consideration is that it may be undesirable for the affected person to “self-assess” whether a particular expense is a “living expense” and if so whether it is “reasonable”. I return to this below. However, I do not accept that the statute imposes a limit on the Court’s power referable to this. The breadth of the orders that can be made in relation to people’s properties, and the breadth of persons whose interests might be affected, do not favour such a conclusion. President Allsop in Keliata stressed that the principle of legality continued to apply to the Act (although that is with one arguable qualification as regards s 5(2)(a), a matter to which I will return).
I will add that if there were a limit on the Court's power of the kind for which the plaintiff contends, it strikes me that in some cases that would be a factor operating against the making of an order at all. The ability of the Court to tailor orders flexibly to the circumstances of a given case cannot be regarded as contrary to the object of the CAR Act, bearing in mind that the Court's discretion will be exercised with due regard to the object of the act.
Very often, especially where there has been a contested hearing or consent from a defendant, it will be appropriate for the Court to make allowance only by reference to particular figures or particular kinds of expenses. Even in that situation, once the Court has determined that figure, there may be an element of self-assessment in the defendant’s incurring of particular expenses.
The plaintiff says that the question of what expenses are reasonable must be informed by the purpose of the Act, and that I accept. The reasonableness standard in this context, it is said, means “basic living expenses” – taking the language from the second reading speech – and that this supports a conclusion that the Court needs to be involved and needs to act on evidence. Even if one does not conclude that “reasonable living expenses” should be confined to basic living expenses, the plaintiff says the standard of reasonableness should be assessed in the context of the objects of the Act, which warrants a strict approach to what living expenses should be regarded as reasonable.
There is force in the plaintiff’s submission but it seems to me unnecessary for me to rule on it, in light of the balance of these reasons. It would be preferable for that to be determined following argument with the benefit of a contradictor.
For all of these reasons, I do not accept that the CAR Act should be construed as not permitting the Court to make provision for reasonable living expenses in an ex parte application where no evidence has yet been received from a defendant. In particular, where an application is made for a restraining order over all of a person’s assets, ex parte and without any exception, and where the defendant is in the community on bail, there are good reasons for the Court to consider making some sort of provision for reasonable living expenses under s 10B(3)(a). If no such order is made, a defendant upon being served with the restraining order would be prevented from even purchasing a meal until the matter is next before the Court – an event that is likely to be some days and possibly some weeks away.
The plaintiff relies on two matters to address the gravity of this impact on a defendant:
the order does not operate in relation to future assets unless the Court expressly so orders, and I have not been asked so to order in this case; and
if a defendant borrows money to cover living expenses or obtains an indulgence or accommodation from a creditor in relation to living expenses in the short term, those debts or obligations can be repaid as reasonable living expenses on the basis of evidence from the defendant at a later stage.
While I accept that those provide some mitigation, I am unable to accept that they are a complete answer or provide sufficient protection to warrant making no order under s 10B(3)(a), at least on the facts of this case.
Having concluded that I have power to make such an order, I turn to whether in my discretion I should make such provision. In determining whether to do so I have gained assistance from some of the authorities that deal with similar issues in the context of making freezing orders or Mareva orders. In doing so, I have been mindful at all times of the particular statutory context of the CAR Act – a matter to which I will return.
It is common for freezing orders to carve out “ordinary living expenses” and “reasonable legal expenses”, with or without placing a cap on the amounts. That leaves the affected person to make certain “self-assessments”, at least in the first instance. While Parliament has placed express restrictions on the Court’s power to make provision for reasonable legal expenses under the CAR Act, as I have indicated, no such restrictions are imposed in relation to the Court’s power to make provision for reasonable living expenses.
In Frigo v Culhaci [1998] NSWCA 88, the Court of Appeal said in respect of freezing orders:
Provision should be made for the defendant to have access to his or her own assets for living expenses, payment of debts and legal expenses. Ideally such a proviso should be included from the outset. If not, it should be engrafted at the earliest appropriate time.
I am conscious that Parliament, in the CAR Act, has not provided for an affected person to use restrained assets to pay debts, and I make no such provision. I am also conscious that Parliament has placed explicit restrictions on allowance for legal expenses, and accordingly I make no such allowance. I am also conscious that where the Court of Appeal refers to "his or her own assets" the particular statutory context of the CAR Act needs to be borne in mind, which places an onus of proof on the defendant to show that assets are his or her own assets acquired bone fide otherwise than from criminal activity. Nevertheless, s 10B(3)(a) provides for an allowance for reasonable living expenses without placing express fetters on the exercise of that power.
The usual position in relation to freezing orders is reflected in Practice Note SC Gen 14, which clearly contemplates, by use of square brackets, that allowance for ordinary living expenses may be with or without a stated weekly or other periodic cap.
I recognise that there are cases indicating that, at least at a contested hearing, a defendant may bear some onus, including to show that there are no other assets to which resort may be had. Justice Drummond in Clout v Anscor Pty Ltd [2001] FCA 174 at [20] made it clear that this is the case where the freezing order is over part only of a defendant’s assets. There are other cases that suggest that such a carve-out for reasonable expenses is appropriate, in the absence of evidence that an affected person has access to either assets*: J Chen v D Xu* [2015] NSWSC 1697 at [5].
Care, it seems to me, is important when dealing with notions of a defendant’s onus, especially in the context of ex parte applications such as this one. I can readily accept that an applicant for a particular order under s 10B(3)(a) bears an onus (legal or persuasive or practical) of establishing that the order should be made. But in this ex parte application, the Crime Commission bears the onus of persuading me that it is appropriate to make orders over all of the defendant’s assets, anywhere in the world – and if such orders would only be appropriate subject to exceptions, then the Crime Commission bears at least a practical or persuasive onus of addressing those exceptions. I stood the matter over to today from when the matter was first before me to ensure the Commission had a proper opportunity, ex parte, to do so.
In an ex parte application, the defendant has obviously had no opportunity to put forward evidence about the absence of any assets to which they can have resort for living expenses. Given the breadth of the proposed restraining order, there is plainly a substantial prospect that the defendant will not have access to any assets to meet ordinary or reasonable living expenses.
I observe that this is consistent with the way Barrett J put it in Goumas v McIntosh [2002] NSWSC 713 at [22]:
- Turning now to the legal issues, there is a preliminary question as to the correct approach in this case – whether it should be treated as an application for new or further Mareva relief or an application to vary existing Mareva restraints. In the latter kind of case, it may well be that the party seeking release of assets from the orders so that those assets may be applied for particular purposes bear the burden of showing not only the legitimacy of those purposes but also that they have no other assets (that is, assets not caught by the orders) from which the legitimate expenditure may be met: A v C (No 2) [1981] 1 QB 961, Szentessy v Woo Ran (Australia) Pty Ltd (1985) 64 ACTR 105, Clout (Trustee) v Anscor Pty Ltd [2001] FCA 174. Where a Mareva order is being imposed in relation to the whole of a person’s property, the approach must be to impose it in terms that create an exception for necessities, particularly reasonable living expenses and reasonable expenses of the litigation itself: see, for example, the views expressed by Powell J (as his Honour then was) in Clark Equipment Credit of Australia Ltd v Como Factors Pty Ltd (1988) 14 NSWLR 552.
If the Court is to make provision for living expenses, the next question is whether to include some sort of cap, even though the Court has no evidence or even submissions from the defendant about what the cap should be. In two decisions, Barrett J set out considerations in the context of freezing orders that favour imposing no cap.
In Goumas v McIntosh at [28], Barrett J quoted the plurality in Cardile v LED Builders (1999) 198 CLR 380; [1999] HCA 18 at 410 [75], in which their Honours made provision for “ordinary living expenses” without fixing a weekly or other periodic amount (see item (ix)). Justice Barrett went on to say:
- There was no attempt here to fix a weekly amount for living expenses. While that is sometimes done, it can present problems. Not only is it difficult for the court to set an appropriate amount except by reference to evidence of the circumstances of the persons concerned, but the fixed weekly maximum assumes – probably wrongly – that expenses are incurred and needs encountered at a constant rate. The form preferred by the members of the High Court in item (ix) means that the relevant party must pause to think every time he or she goes to make a payment in case to do so involves a contempt of court. There is no scope for the person to be lulled into thinking that, in effect, there is a fixed sum which may be spent each week with impunity.
52 I shall come to the particular items in contention presently. First, it is appropriate to make some general observations. When it comes to specifying monetary limits for legal expenses and accountancy expenses, the court necessarily enters upon a difficult terrain. I note, in that respect, that the draft form of order suggested by the majority in Cardile v LED Builders Pty Ltd (1997) 198 CLR 380 at p.410 does not contemplate any monetary limit. There is reference only to “the reasonable legal expenses of defending these proceedings and any appeal therefrom” and “their normal accountancy fees”. This, it seems to me, indicates the desirability of allowing expenditure on “reasonable and proper” legal and accountancy expenses incurred and to be incurred by the person concerned. It would be wrong to think that a client subject to a freezing order and incurring such legal and accounting expenses will somehow be more profligate and less vigilant than a client not subject to such an order. The money is, after all, his own money and expenditure of it by way of payments to lawyers and accountants for services rendered cannot be seen as presenting some opportunity for indirect and improper dissipation in the face of the possibility of a future judgment. As a check, however, it is desirable that provision be made for what was called, in Halifax plc v Charlton [2001] EWCA Civ 1750, “self-certification”, that is periodic written certification by Mr McArthur’s lawyers as to the amount of the reasonable and proper legal expenses incurred. The lawyers, as officers of the court, would have obvious responsibilities in that regard.
53 In relation to living expenses, a limit per week (or per month or per day) presents obvious difficulties. If a person goes to the dentist for major treatment, thousands of dollars might be spent in one particular week on that item alone, while nothing is spent on dental treatment again for many months. If rent for a dwelling is payable monthly and a weekly limit on expenditure is set, there will be an item of expenditure for rent in every fourth week but no such expenditure in any of the intervening weeks. If a residential property is owned, there will be expenditure on council rates in one week of the year (or one week in each quarter, if the option to pay by four instalments is exercised). An order embodying a weekly limit may instinctively be assumed to allow some form of averaging (so that, for example, the large dental bill or the annual or quarterly charge for rates can somehow be spread over some number of weeks assumed to be appropriate) – but, of course, that is not the effect of such an order at all. An order which simply limits expenditure on living expenses to a stated sum “per week” means what it says, that is, that there must be no week in which more than the stated sum is expended on living expenses.
54 There is also the point that a successful applicant for a freezing order does not acquire the right to tell the person bound by the order how to live his or her life. The draft form of order suggested in Cardile refers simply to “ordinary living expenses” without quantification.
I return to these considerations below.
It is important not to follow the principles for freezing orders blindly or slavishly in the context of the CAR Act. The particular objects and policies of the CAR Act must inform a decision under s 10B(3)(a), as to which guidance may be drawn from the passages cited above (at [16]-[17] and [20]-[25]) from the second reading speeches and such authority as there is dealing with reasonable living expenses under the CAR Act. Nevertheless, where Parliament expressly gave the Court power to provide for reasonable living expenses and included no express restrictions or requirements for the exercise of that discretion, the authorities about freezing orders may provide some assistance as reflecting the considered wisdom of judicial officers dealing with a situation that has at least real similarities.
As I have indicated, such assistance must always be subject to having due regard to the particular statutory context of the CAR Act. One example of a consideration that arises from freezing orders but probably does not arise given the different statutory context is the one identified by Barrett J in International Skin Care Suppliers Pty Ltd v Whyte [2011] NSWSC 46 at [18], where his Honour said:
The money concerned is money of the party restrained. That party has no particular interest in squandering the money and might be expected in its own interests to spend it wisely. The imposition of a limit expressed in terms of reasonableness is, therefore, sufficient.
I do not think this reasoning translates to a context where a defendant is facing forfeiture of assets. In this different situation, a defendant may well have an incentive to live extravagantly until the forfeiture occurs. Accordingly, I have not adopted that kind of reasoning in this case, indeed I have taken into account as a reason to be cautious about providing for reasonable living expenses the risk that an affected person facing forfeiture orders may have the incentive identified.
In Goumas v McIntosh at [23], Barrett J identified other features of the freezing order jurisprudence that the plaintiff submits may not translate. Justice Barrett stressed that the purpose of freezing orders is not to seek security and that the sole purpose is to impose reasonable measures to ensure that the process of the court is not frustrated. The plaintiff submitted, and I accept, that while those may be purposes of the CAR Act they are not the only purposes of the CAR Act.
The plaintiff submitted that the CAR Act is in part punitive, and I accept that that is an appropriate characterisation where findings have been made, although perhaps not when the Court is making orders solely on the basis of reasonable suspicion. However, whether one uses language of punitive or not, the CAR Act was plainly intended to be substantially intrusive in relation to property rights.
In this regard I have taken into account s 5(2)(a) of the CAR Act and s 6(1).
5 Proceedings are civil, not criminal
(2) Except in relation to an offence under this Act—
(a) the rules of construction applicable only in relation to the criminal law do not apply in the interpretation of the provisions of this Act, and
…
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).
While those aspects of the statutory context are relevant, they say nothing about other aspects of the principle of legality. As the plaintiff’s counsel appropriately stressed before me, Allsop P in Kelaita at [13]-[15] recognised the applicability of the principle of legality. In any event, at the heart of my reasoning is that I have not discerned any particular restrictions that do not appear in terms in s 10B(3)(a) or elsewhere in the CAR Act.
I further accept, as I have indicated above, that Justice Barrett’s observation about defendants spending “their money” does not translate to this statutory context, given the reversal of onus of proof in the CAR Act.
I would add that while, as Barrett J put it in McArthur, a plaintiff does not acquire the right to tell a person how to live their life and that that proposition may translate to this statutory context, I accept that Parliament has not used the language of “ordinary” living expenses but rather “reasonable” living expenses. There is much to be said for the proposition that reasonableness should be informed by the language, scope and purposes of this particular Act. While this would need to be assessed on a case-by-case basis, I accept the Commission’s submission that the subsection does not appear to contemplate extravagant expenses or expenses that are out of the ordinary. But as I have said, it is not necessary or desirable for me to rule on the precise scope of reasonableness in an ex parte application. That is better left to debate where the Court has the benefit of a contradictor.
In considering whether to make provision under s 10B(3)(a) I considered imposing a limit, even though I have no evidence about it, by reference to something like the amount a person would earn each week if they earned the minimum wage in Australia. However, as matters presently stand, it has not been established following a contested hearing, or by the consent of a defendant, that the restraining orders are appropriate at all. I am also conscious of Justice Barrett’s examples of ordinary, reasonable living expenses which are large but relatively rare, and which arise on sporadic occasions (such as significant dental work). Since the order will be made ex parte I have no basis to exclude the possibility of such expenses between now and the first return date. In my view the preferable course is to provide for living expenses without imposing a cap.
I have also been mindful of the plaintiff’s counsel’s submission that, as a matter of practice in this Court, inter partes orders for reasonable living expenses are not generally made by reference to caps for a particular period. They are rather made by reference to particular kinds of expenses, and caps for those kinds of expenses. All of that, it seems to me, is better considered at an inter partes hearing.
As Barrett J observed in Goumas v McIntosh at [29] (and I accept as relevant in this context although it must be treated with care), it is to be expected that the consequences of non-compliance (including contempt or breach proceedings) will mean that a defendant may be expected to pause to think before making any payment in reliance on the allowance. The defendant will also know that his expenses may be scrutinised by the Commission, including potentially on or shortly after the first return date. Should the defendant incur expenses that are unreasonable, that may be relevant to the Court’s exercise of discretion in the future, and may also bear on the inferences the Court is prepared to draw, in favour of the defendant or against him, should there be an application for an exclusion order in respect of particular assets. These can be expected to be moderating influences. Accordingly, even taking into account the risk that the defendant could incur extravagant expenses during the short period between the orders being made and the first return, I have concluded that it is preferable in this ex parte application to make an order providing for reasonable living expenses without fixing a cap.
I have considered whether to make the provision by reference to “ordinary” living expenses or “reasonable” living expenses. They are both expressions that leave some scope for judgment in deciding what expenses are covered.
I have concluded that it is preferable to use the language chosen by Parliament in the CAR Act. Accordingly, I propose to include in the restraining order a paragraph stating that the order does not prevent the defendant from meeting his reasonable living expenses, or the reasonable living expenses of any dependants, out of the property to which the order applies, between the date of these orders and the first return date.
An order in this term ensures that the question of whether the defendant should be permitted to apply property towards reasonable living expenses after the first return date will be a matter for the Court to assess in an inter partes hearing, either by consent or on the basis of appropriate evidence.
In light of my attitude to provision for reasonable living expenses, the objects of the CAR Act warrant the matter being brought back before the Court sooner than 27 July 2026 (that being the date originally proposed in the plaintiff's summons as the first return date). The plaintiff during argument before me embraced the proposition that if I took the view I have taken, an earlier return date is preferable so that there is only a short period during which the provision for reasonable living expenses applies in the general terms that I have indicated.
In light of the doubt that I recognise attends the conclusions I have reached and the absence of authority, the plaintiff seeks an opportunity to consider my reasons and consider whether they wish to make any application in relation to them before it is necessary to serve the orders on the defendant. I accept the force in doing so. I propose to fix a first return date at a time in the future that gives the plaintiff seven days to consider whether the plaintiff wishes to make any application in respect of this decision and contemplates that the defendant will be served at a time which gives the defendant two weeks to bring any application for provision for reasonable living expenses beyond the first return date and to endeavour to agree such provision with the Commission if possible.
I propose to direct that subject to any further order of this Court or the Court of Appeal the plaintiff is to use best endeavours to serve the defendant with these orders on or before Tuesday, 26 May 2026. I use language of “best endeavours” to make it clear that I recognise that it would not be appropriate to make orders requiring the plaintiff to serve by a particular time in circumstances where the plaintiff does not know whether there will be service difficulties, but to ensure that there is a recorded intention that the defendant will have two weeks before the first return date. If the defendant is served later than Tuesday 26 May 2026, it will be a matter for the court on the first return date to question whether the defendant has had sufficient opportunity to prepare an application for further provision for reasonable living expenses. Indeed, that will be a matter for the court on the first return date, regardless of the date on which the defendant is served.
Accordingly, the orders I made included the following (I have not reproduced in these reasons the schedules to the orders, or procedural matters not reflected in these reasons):
Upon the Plaintiff giving the usual undertaking as to damages (the giving of which by its solicitor being noted) and considering that, having had regard to the matters contained in the affidavit of Warwick Oliver sworn 6 May 2026, there are reasonable grounds for the suspicions stated therein,
The Court orders:
- Any judgment and orders made at or from the ex parte hearing are not to be published on JusticeLink for a period of 6 business days from the date of these Orders.
- Pursuant to section 10A of the Criminal Assets Recovery Act 1990 (NSW) (‘the Act’) no person (other than any registered mortgagee dealing with its right to do so under the registered mortgage) is to dispose of, or attempt to dispose of, or otherwise deal with or attempt to otherwise deal with any interest in property (within the meaning of “interest in property” as defined in section 7 of the Act) of Mohammed Hammooud (“the Defendant”), including the interest in property in the property specified in Schedule One and Two hereto.
- Pursuant to section 10B(2) of the Act, the New South Wales Trustee and Guardian shall take control of all the interest of the Defendant in the property specified in Schedule One hereto.
- These orders do not prevent the Defendant from meeting his reasonable living expenses, or the reasonable living expenses of any dependants, out of the property to which the orders apply, between the date of these orders and the first return date.
…
- These proceedings be listed for mention before the Common Law Registrar at 9:00am on 9 June 2026.
- Subject to any further order of this Court or the Court of Appeal, the Plaintiff is to use best endeavours to serve the Defendant with these orders on or before Tuesday 26 May 2026.
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New South Wales Crime Commission
Hammoud
[1999] HCA 18
(1999) 198 CLR 380
(1991) 24 NSWLR 116
(2008) 75 NSWLR 564
(1993) 31 NSWLR 44
(1988) 14 NSWLR 552
(1997) 198 CLR 380