New South Wales Crime Commission v Raisa

Catchwords: CIVIL PROCEDURE – discontinuance – leave of the court – whether plaintiff should pay defendant’s costs – supervening event making proceedings futile – proceedings under the Criminal Assets Recovery Act 1990 – where defendant subsequently became insolvent – where defendant had no interests in property to enable the making of an unexplained wealth order – where proceedings properly instituted

Legislation Cited: Civil Procedure Act 2005 (NSW) s 14
Criminal Assets Recovery Act 1990 (NSW) s 28A
Uniform Civil Procedure Rules 2005 (NSW) rr 12.1, 18.2, 18.4, 42.19

Cases Cited: Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365
Perpetual Corporate Trust Ltd v Ip [2024] NSWSC 728

Texts Cited: Nil

Category: Principal judgment

Parties: New South Wales Crime Commission (Plaintiff)
Vanni Raisa (Defendant)

Representation: Counsel:
S Askew – ex parte (Plaintiff)
Solicitors:
New South Wales Crime Commission (Plaintiff)
Self-represented (Defendant)

File Number(s): 2018/99116

Publication restriction: Nil

JUDGMENT

1. These proceedings commenced on 29 March 2018 when restraining orders under the Criminal Assets Recovery Act 1990 (NSW) were sought and granted in respect of the property of the defendant and a number of companies associated with the defendant pending the making of an unexplained wealth order pursuant to s 28A of the Act.

2. The property disclosed on the application consisted of four parcels of real property, some nine vehicles, both motor vehicles and boats, and a considerable amount of shares in companies associated with the defendant.

3. The proceedings were ultimately served by agreement on a solicitor acting for the defendant. That solicitor continued to act for the defendant until filing a notice of ceasing to act on 17 March 2020. In the meantime, consent orders had been made on a number of occasions in relation to the sale of parts of the restrained property. The solicitor acted on behalf of the defendant to give the defendant's consent to those orders.

4. Prior to the commencement of the proceedings, records obtained by the plaintiff indicated that the value of the defendant’s interests in property and in the property of the associated companies was approximately $1,500,000.

5. Subsequent to the making of restraining orders, one of the companies, Energy Drinks Distributing Pty Ltd, which had gone into liquidation on 24 March 2017, obtained a judgment against the defendant for $425,746.69. The liquidators then lodged writs against two of the parcels of real estate owned by the defendant and identified in the summons. Orders were thereafter made enabling the sale of three parcels of real estate. After payment of mortgagees and the liquidators, the defendant’s interests in property are estimated at $288,475.

6. The defendant has a number of other outstanding debts, including three amounts totalling about $866 million, all of which are secured against the final property which is only partly owned by the defendant. The plaintiff now accepts, with the knowledge it has gained since the restraining orders were made, that the defendant has no interests in property capable of satisfying any unexplained wealth order.

7. In those circumstances, the plaintiff now seeks by notice of motion for leave to discontinue the proceedings, to dispense with service of notice of motion to do so, and for an order that each of the plaintiff and the defendant pay their own costs in the matter.

8. Following the defendant's solicitor ceasing to act for him, the plaintiff has had virtually no communication with the defendant despite many efforts on its part to contact him. The plaintiff was provided with an email address for the defendant to which a number of emails were sent in relation to the matter. In these emails the plaintiff sought to ascertain if the defendant had retained a new solicitor to represent him.

9. There was no response to any of the emails sought. Subsequently, a WhatsApp contact was provided to the plaintiff in respect of the defendant and the defendant confirmed that the email address to which the emails had been sent was his email address. The plaintiff sent a WhatsApp message informing him that emails had been sent and seeking a reply to them. There was no reply to that text.

10. Enquiries were made of Australian Border Force which disclosed that the defendant had been outside Australia since 1 January 2018.

11. In my opinion, the requirements of r 18.2 of the Uniform Civil Procedure Rules 2005 (NSW) in relation to the service of notices of motion should be waived in the present case. It is apparent that the attempts of the plaintiff to contact the defendant about various aspects of the proceedings have been met with silence apart from a confirmation that the contact details the plaintiff had were correct. It seems to me that, although the notice of motion could have been served on the defendant by an order of the Court to the email address confirmed by the defendant to be his, that exercise would have been a pointless one in all the circumstances.

12. Rule 12.1 UCPR provides that a plaintiff may discontinue proceedings with the consent of the defendant or with the leave of the Court. Rule 42.19 provides that unless the Court orders otherwise the plaintiff should pay the defendant’s costs up to the date of filing a notice of discontinuance.

13. For those reasons, the plaintiff seeks leave to discontinue and not pay the defendant's costs. It does so in reliance on my decision in Perpetual Corporate Trust Ltd v I**p [2024] NSWSC 728. In that judgment, which concerned an application by a plaintiff to discontinue without paying the defendant's costs, I noted at [25], in reliance on what was said in Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365 at [11], that it was a relevant consideration whether the commencement of the proceedings was justified.

14. I also said at [30]:

In all of the circumstances where a supervening event made the claim against the third defendant futile and [scil. at] such an early stage, and it cannot be said the plaintiff behaved unreasonably in commencing nor carrying on those proceedings, the plaintiff should not be ordered to pay the third defendant's costs.

15. In this matter, the commencement of the proceedings was entirely reasonable by the plaintiff. The Court in making the restraining orders was of the opinion that the belief of the deponent of the supporting affidavit was reasonable that the defendant had committed the offence identified in that affidavit and was the owner of the assets identified in the schedules of the summons. In those circumstances the plaintiff was entitled to apply, not only for restraining orders, but for an unexplained wealth order.

16. I am also of the opinion that the events disclosed in the affidavit of the forensic accountant in support of this motion demonstrate that a number of supervening events have occurred which could not reasonably have been anticipated at the time these proceedings were commenced, being the judgments obtained against the defendant and the defaults under mortgages and other security arrangements.

17. In those circumstances, it is reasonable that the plaintiff should be given leave to discontinue the proceedings without being required to pay the defendant's costs.

18. Accordingly, I make the orders in prayers 1, 2 and 3 of the notice of motion.

19. I order, additionally, that there be no order costs as to the costs of the proceedings to the intent that each of the parties pay their own costs.

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