This is an application pursuant to s 30 of the Criminal Assets Recovery Act 1990 (NSW) (the Act), brought by the New South Wales Trustee and Guardian (the Trustee). I was informed by counsel for the Trustee that the plaintiff in the substantive proceedings, the New South Wales Crime Commission (the Commission), is aware of the application and does not oppose the orders sought.
The respondent, Ms Vu, did not appear either personally or by a lawyer. My short earlier judgment will show that I determined the threshold question of whether the motion should be heard ex parte in favour of the Trustee, because I was soundly satisfied that Ms Vu is aware of the application but has chosen to take no part in opposing it.
To state the background very succinctly, on 28 October 2009, the Commission obtained ex parte restraining orders with regard to a number of pieces of property owned by Ms Vu. In a nutshell, it was said that Ms Vu had obtained a loan of approximately $184,000.00 from a financial institution dishonestly. She had done so by providing false documentation to the financial institution.
In due course, the Commission sought a proceeds assessment order against Ms Vu pursuant to ss 27 and 28(3) of the Act. Although, as I have said, the sum allegedly dishonestly obtained was in the order of $184,000.00, pursuant to the rigorous regime contained in the Act, the Commission sought an order in the far greater sum of $922,738.00. Both the making of any order, and that quantum, was opposed by Ms Vu, who was represented by a solicitor.
On 29 February 2012, Johnson J determined both issues adversely to the respondent and made a proceeds assessment in that amount: see New South Wales Crime Commission v Vu [2012] NSWSC 129 at [110].
Ms Vu appealed to the NSW Court of Appeal. At that stage, she was represented by counsel. Various grounds were relied upon; all were dismissed: see Vu v New South Wales Crime Commission [2013] NSWCA 282 at [104] (McColl JA, with whom Meagher JA and Emmett JA agreed).
Thereafter, things were in abeyance for some time. On 17 July 2014, the Commission obtained, pursuant to s 10B(2) of the Act, final orders vesting control over a number of pieces of property of Ms Vu. They included the two pieces of property that are the subject of the motion before me; namely, real property at X XXXX XXXX, Bankstown, and a Subaru motor vehicle, registration XXXXXX.
It is in that context that the Trustee now seeks orders that will permit it to sell both the real and personal property; to execute all necessary documents to that effect; and to have, by way of my orders, vacant possession of the property at Bankstown (I was told that Ms Vu is still residing there) and also possession and control of the motor vehicle.
Counsel for the Trustee accepted that it is no small thing for an order for possession of land to be made against its registered proprietor. Nor is it a small thing for a registered proprietor to lose the ability to deal with his or her property as he or she sees fit.
Having said that, counsel emphasised that the orders that I am being asked to make are, in truth, ancillary to a dispute that was resolved definitively by the Court of Appeal many months ago.
Turning to my determination, it can be seen that many of the orders that I am being asked to make are well founded in various subsections of s 30 of the Act: proposed order one is derived from s 30(1); proposed order two is derived from s 30(2)(a); proposed order seven is derived from s 30(2)(b); and proposed order eight is derived from s 30(4)(a).
It can be seen that proposed order five seeks, amongst other things, an occupation fee for every week that Ms Vu may be in possession of the property contrary to my order for vacant possession. I have no difficulty ordering that she pay all rates, taxes and insurance associated with the property until it is vacated. But no evidence was placed before me as to current market rental of like properties in the same suburb. Nor were oral or written submissions made in support of this part of the order. In those circumstances, I do not consider that I can rely safely upon judicial notice to make an order in the nature of the one sought. For that reason, I do not propose to make proposed order five to the extent that it speaks of an occupation fee; if the Trustee needs to, no doubt it will return to this Court and seek it separately.
To my mind, it is appropriate that the orders sought be made by me now. It is to be recalled that Ms Vu was first placed on notice of the fact that the Commission was proceeding against her and her property six years ago. As well as that, she was personally served with notice of the current motion as long ago as 25 May 2015.
Nevertheless, I think that the proposal that the respondent must give vacant possession four weeks from today could be inappropriately onerous. After all, the Commission has not pursued its funds with the utmost urgency. I propose to extend that order so that vacant possession must be given seven weeks from today. I also propose to give a small amount of leeway with regard to the provision by Ms Vu of her car keys.
Finally, counsel submitted that I should order indemnity costs against Ms Vu. That was said to be on the basis that a trustee is normally entitled to such costs. It was also said to be appropriate because Ms Vu had done nothing to cooperate in the making of these orders.
So much may be accepted. But I approach the question of indemnity costs carefully. I have not heard from a contradictor, and I know nothing of the personal circumstances of Ms Vu that may have made it difficult or impossible for her to facilitate this latest phase of the litigation. And in any event, I would not have been prepared to make the orders without having had the whole history of the matter carefully and helpfully explained to me by counsel, along with the provision of an analysis of the salient features of the Act.
In all of the circumstances, I propose to order that the respondent must pay the costs of the Trustee on the ordinary basis.
I make the following orders:
1. Pursuant to s 30(1) of the Criminal Assets Recovery Act 1990 (NSW), the New South Wales Trustee and Guardian must pay to the Treasurer of New South Wales an amount sufficient to discharge the defendant's debt arising from the proceeds assessment order made on 29 February 2009 from the net proceeds of the sale of the defendant's interest in property restrained in these proceedings.
2. Pursuant to s 30(2)(a) of the Criminal Assets Recovery Act, the New South Wales Trustee and Guardian is to sell the interest of the defendant in the property specified in Schedule One of the orders made in these proceedings on 29 November 2013.
3. The applicant is entitled to vacant possession of the real property situated at and known as X XXXX XXXX, Bankstown NSW, folio identifier 7/SPXXXXX ("the Bankstown unit"), at and from 5:00 pm seven weeks from today, that is, on 22 September 2015.
4. The applicant has leave to issue a writ of possession in respect of the Bankstown unit, with execution of such writ stayed until 5:00 pm on 22 September 2015.
5. The defendant is to pay all rates, taxes and insurance in respect of any period of occupation of the Bankstown unit after 5:00 pm on 22 September 2015, until she vacates the property.
6. The defendant is to deliver the keys and control of the 2007 Subaru Tribeca vehicle, registration number XXXXXX, to the applicant by 5:00 pm on 5 August 2015.
7. Pursuant to s 30(2)(b) of the Criminal Assets Recovery Act, the Chief Executive Officer of the New South Wales Trustee and Guardian, and any authorised delegate appointed in accordance with s 9(2) of the NSW Trustee and Guardian Act 2009 (NSW), are appointed to execute any deed or instrument in the name of the defendant and to do all things necessary to give validity and operation to the deed or instrument.
8. The defendant must pay the costs of the Trustee as agreed or assessed.
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Decision last updated: 14 August 2015