NGUYEN -v- THE DIRECTOR OF PUBLIC PROSECUTIONS [2026] WASCA 4 (15 January 2026)

1. The background facts are not in dispute and can be summarised as follows.
2. On the application of the DPP, freezing orders under the CPCA were made in respect of three residential properties owned by one or more of the appellants.[1] The properties are 100 Vincent Street, Mount Lawley (Vincent Street property); 65 Etwell Street, East Victoria Park (Etwell Street property); and, 49 Cowle Street, West Perth (Cowle Street property).
3. The registered proprietor of the Vincent Street property is the third appellant, HNLN Corporate Proprietary Ltd (HNLN Corporate).[2] HNLN Corporate was registered as the sole proprietor on 17 October 2014. A mortgage to Westpac was also registered on the same day. There are no other registered mortgages or caveats on the title. The mortgage secured the payment of a loan made by Westpac to HNLN Corporate. The loan was made for the predominant purpose of assisting with the purchase of the Vincent Street property.[3]
4. The Vincent Street property loan was due to be repaid on or about 1 October 2015. That repayment did not occur and HNLN Corporate has not made any payments pursuant to the mortgage since 20 July 2020.[4] Westpac issued two notices of default to HNLN Corporate dated 7 July 2021 and 1 September 2022. The notices demanded payment of the entirety of the moneys secured by the mortgage. No payments were made in response to the notices.
5. The registered proprietors of the Etwell Street property are the first and second appellants, Hoang Nam Nguyen and Phuong Nam Nguyen (the Nguyens).[5] They were registered as proprietors on 24 December 2010. A mortgage to Westpac was registered on 22 October 2014. There are no other registered mortgages on the title. There is a prior caveat that was lodged on 23 February 2010. The mortgage secured the payment of a loan made by Westpac to the Nguyens.[6] That loan was constituted by a facility letter dated 25 September 2014. Whilst it was claimed that the predominant purpose of the loan was to assist in the purchase of that property, that cannot be so as the property was acquired in 2010, some four years before the mortgage was registered. This anomaly was noted by the primary judge, who also commented that nothing turned on the misdescription of the loan's purpose.[7]
6. The Etwell Street property loan was due to be repaid on or about 1 October 2017. That repayment did not occur. Westpac issued two notices of default to the Nguyens dated 7 July 2021 and 1 September 2022. The notices demanded payment of the entirety of the moneys secured by the mortgage. Some payment was made in response to the first notice, but not the entirety of the amount demanded.[8] No further payments have been made since 10 January 2022.
7. The registered proprietors of the Cowle Street property are Phuong Nam Nguyen, HN Corp Proprietary Ltd as trustee for the HN Family Trust (the fourth appellant) and N N Corporate Proprietary Ltd as trustee for the Nam Nguyen Family Trust (the fifth appellant).[9] These parties were registered as joint tenants on 8 July 2014. A mortgage to Westpac was registered the same day. There are no other registered mortgages or caveats on the title. The mortgage secured the payment of a loan made by Westpac to the registered proprietors. The loan was made for the predominant purpose of assisting with the purchase of the property.
8. The registered proprietors of the Cowle Street property have not made any payments pursuant to the mortgage since 1 August 2017.[10] Westpac issued a notice of default dated 1 September 2022. The notice stated that if the default in payment continued for 31 days from service of the notice, Westpac demanded payment of the entirety of the money secured by the mortgage. The registered proprietors did not make any payments in response to the notice.
9. By each mortgage, the registered proprietors mortgaged to Westpac all of their estate and interest in the subject land, as well as all rights attaching to the subject land.[11]

1. On 27 September 2018, Le Miere J made orders pursuant to s 43(1)(b) of the CPCA freezing the Vincent Street property and the Etwell Street property on the ground that the DPP intended to make an application for an examination order in relation to the properties within 21 days of the making of the order.[12] Orders were also made appointing the registered proprietors to control and manage the properties while the freezing orders remained in place.
2. On 26 July 2022, Curthoys J made an order pursuant to s 43(3)(b) of the CPCA freezing the interest of HNLN Corporate as registered proprietor of the Vincent Street property on the ground that that interest was alleged to be owned, effectively controlled or had been given away by Phuong Nam Nguyen, and that an application for a crime‑used property substitution declaration had been made against him.[13] An order appointing HNLN Corporate to control and manage the Vincent Street property was also made.
3. On the same day, Curthoys J made an order pursuant to s 43(8) of the CPCA freezing the Etwell Street property on the ground that there were reasonable grounds for suspecting that it was crime‑used.[14] A further order was made pursuant to s 43(3)(b) freezing the interest of Phuong Nam Nguyen as a joint registered proprietor of the Etwell Street property on the ground that it was alleged that the property was owned, effectively controlled or had been given away by him and that an application for a crime‑used property substitution declaration had been made against him. An order continuing the appointment of the registered proprietors to control and manage the Etwell Street property was also made.
4. On 20 April 2020, Allanson J made an order pursuant to s 43 of the CPCA freezing the interest of N N Corporate in the Cowle Street property.[15] There were two grounds for the order: first, pursuant to s 43(1)(a), that the DPP had obtained an examination order in relation to the Cowle Street property; and, second, pursuant to s 43(3)(c), that the DPP had advised the court that an application for a crime‑used property substitution declaration would likely be made within 21 days. His Honour made a further order appointing N N Corporate to control and manage its interest in the Cowle Street property.
5. Westpac objected to the freezing orders on the Vincent and Etwell Street properties by a notice of objection filed on 12 November 2018.[16] The notice objected to any confiscation of the properties covered by those orders. The proceedings in respect of the Vincent and Etwell Street properties were subsequently consolidated with the proceedings in relation to the Cowle Street property. On 26 July 2022, Curthoys J ordered that Westpac's objection filed on 12 November 2018 stand as its objection in the consolidated proceedings in relation to all freezing orders.[17]

1. Westpac applied for orders that the properties be sold, that the proceeds be applied to discharge any amounts owing under the mortgages, and that the net proceeds be frozen under the terms of the original freezing orders.[18] The application was supported by the DPP. The DPP accepted that Westpac was an innocent party and should not be disadvantaged by the activities that led to the freezing orders being made.
2. The appellants, as the registered proprietors of the properties, did not dispute that the principal amounts claimed by Westpac were due under the ordinary operation of the mortgages. The only points of contention were: firstly, whether Westpac could claim interest fees and charges that accrued after the making of the freezing orders; and, secondly, whether the court could make orders that had the effect of freezing any net proceeds of the sales.
3. The trial judge identified six key issues requiring determination.[19] The first issue was whether the net proceeds from the sale of the properties could be considered property that is 'derived from' the frozen property within the meaning of that phrase in s 45(a) of the CPCA. This issue arose because that section provides that the court has power to order that property derived from frozen property is to be treated as part of the frozen property while the freezing order is in place. The DPP and Westpac initially placed reliance on this section as a source of power to make the orders sought.
4. The primary judge concluded that the phrase 'property derived from the property' in s 45(a) does not extend to circumstances where frozen property is sold, and thus does not capture the net proceeds received from the sale of frozen property.[20] This conclusion was not ultimately material as orders were made on a different basis.
5. The second issue was whether accruals of a registered mortgagee's rights after the making of a freezing order constitute a prohibited dealing under s 151 of the CPCA. The appellants contended that such accruals are prohibited dealings and that, in effect, a mortgagor's obligations under a mortgage are suspended once the freezing order is made. This issue is the focus of ground 2.
6. The primary judge concluded that s 151 expressly requires that a person does something, or attempts to do something, in respect of the frozen property, and that the accrual of rights under the mortgages did not meet that characterisation.[21] Further, s 151(f) refers to a change in any legal or equitable right or obligation in relation to the property.[22] His Honour concluded that the rights and obligations under the mortgage do not change by reason of the mortgage operating as intended. Although the amount owing may change, this occurs by reason of the operation of the existing obligations under the mortgage and not because of any alteration to those obligations.
7. The primary judge also observed that s 52 of the CPCA provides that nothing in the Act prevents a mortgagor from making payments to the mortgagee in accordance with the mortgage, as long as the payments are made with money that has not been seized or frozen, and nor does it prevent the mortgagee from accepting such payments.[23] His Honour said that s 52 therefore recognised the continuation of mortgagor's obligations under the mortgage.
8. For these reasons the primary judge held that the CPCA does not have the effect of suspending a mortgagor's obligations once a freezing order is made in respect of mortgaged property. His Honour said that this conclusion was confirmed by the explanatory memorandum to the CPCA, which states that, as long as the property being used to make mortgage payments is not itself frozen property, it is appropriate for the CPCA to enable mortgage payments to continue.
9. The third issue was whether, in circumstances where the frozen property is a legal or equitable interest in real property rather than the real property itself, a registered mortgagee is an owner of that frozen property for the purposes of the CPCA. This issue arose in respect of the Cowle Street property because the relevant freezing order related only to N N Corporate's interest in that property, N N Corporate being one of three joint registered owners of the property.
10. The primary judge noted that the registered proprietors, including N N Corporate, had mortgaged to Westpac the whole of their estate and interest in the Cowle Street property, as well as all rights attaching to that property.[24] Westpac has a legal interest in N N Corporate's interest in the property. The rights of Westpac under the mortgage include the right to take possession and sell the land in the event of default. Similar rights are conferred by s 116 of the Transfer of Land Act 1983 (WA) (TLA). His Honour concluded that Westpac has a legal right in respect of the whole fee simple as well as each joint owner's share.[25] It followed that Westpac has a legal interest in N N Corporate's interest in the Cowle Street property and is therefore an 'owner' for the purposes of s 91 of the CPCA.
11. The primary judge's resolution of the third issue is not challenged by the grounds of appeal. Accordingly, it will not be necessary to consider that issue further. It can be assumed for the purposes of this appeal that the interest of N N Corporate in the Cowle Street property is property capable of being the subject of a freezing order and that Westpac, as the registered mortgagee, is an owner of that interest for the purposes of s 91.
12. The fourth, fifth and sixth issues were related. The fourth issue was whether s 91 provides a source of power to make the sale orders that Westpac sought. The fifth issue was whether that power extends to the making of an order that all or part of the proceeds are taken to be frozen property subject to the existing freezing order. The sixth issue was whether the court has the power to make an order in respect of the distribution of the 'unfrozen' part of the proceeds of sale. These issues are the focus of ground 1.
13. The primary judge concluded that s 91 does provide a general source of power for the court to order the sale of frozen property. His Honour acknowledged that s 91 contains no express provision deeming that the net proceeds of sale will remain frozen under the freezing order but said that such a power should be implied. Reliance was placed on the principle that, in the absence of express words to the contrary, the legislature will be assumed to have taken the court as it finds it.[26] Further, statutory powers conferred on a court ordinarily carry with them such powers as are incidental and necessary to the exercise of the statutory powers.
14. The primary judge said that there was no reason to think that a sale under s 91 was intended to free up the benefit of the property for all owners, irrespective of their involvement in the alleged conduct that led to the original freezing order.[27] His Honour did not accept that the ability of the DPP to seek a new freezing order in respect of the net proceeds would alleviate this effect, because the grounds that justified the original freezing order may no longer exist (for example, because the property was alleged to be crime‑used property). There was no discernible legislative purpose that would warrant a difference in approach between the property sold and the net proceeds of the sale of that property.
15. The primary judge said that it was difficult to discern prejudice to the appellants in orders that had the effect of ensuring that the value of their beneficial interest in the property remained frozen.[28] Matters such as whether the appellants supported a sale could be taken into account in considering whether to exercise the discretion under s 91.
16. The primary judge said that the ultimate question was whether an implied power to freeze all or part of the proceeds of sale is reasonably required or legally ancillary to the exercise of the power under s 91 to appoint an owner to sell the frozen property. His Honour concluded:[29]

In my view, having regard to the scheme of the Act, what happens to the proceeds of sale is legally ancillary to the exercise of the power to appoint an owner to sell the frozen property. That power is not exercised in the abstract. The court must think it is fit to so order. Part of the assessment of what the court thinks fit must include consideration as to what happens to the sale proceeds.

I am satisfied there is an implicit power in s 91 to order that the net proceeds of the sale are taken to be frozen property that is subject to the existing freezing order. An implicit power of that type accords with the deeming provision in s 94(4). Further, it is legally ancillary to the power to order a sale that the court is able to order that all or some of the net proceeds are frozen. The implicit power permits the court to direct the extent to which the benefit of the frozen property is released. Understood in that way, the implicit power gives necessary effect to the strict controls imposed by the Act on dealing with and releasing frozen property. It also facilitates the intended purpose of s 91, being to ameliorate the impact of the Act upon innocent parties.

In contrast, the absence of such an implicit power would result in the entirety of the benefit of the frozen property being released. I do not consider the operation of s 91 was intended to have such a result. It is inconsistent with the operation of the Act overall, and with the strict controls imposed by the Act on dealing with and releasing frozen property. Such a result would also significantly curtail the operation of s 91, as the court would be most reluctant to order a sale unless satisfied that only innocent parties would be entitled to the entirety of the net sale proceeds. The focus would then be on the attributes of all owners entitled to a share of the net sale proceeds, as opposed to the attributes of those owners seeking to utilise s 91 to extract their interest in the property to be sold. I do not consider that focus on the attributes of all owners is consistent with the intended purpose of s 91, being to ameliorate the impact of the Act upon innocent parties.

1. The primary judge did not determine the precise amounts that were be paid to Westpac pursuant to the mortgages. His Honour said that if there was any dispute as to how the proceeds of sale were to be distributed, that could be resolved either after further argument or in further proceedings between the parties.[30]
2. The primary judge made orders appointing Westpac to sell each of the properties. Those orders included the following:
   1. The relevant property be sold for not less than the reserve price or sale price agreed by the parties, or otherwise ordered by the court.
   2. The relevant property be sold on terms and conditions agreed between the parties, or otherwise ordered by the court.
   3. On settlement, Westpac shall pay the proceeds of the sale into an interest‑bearing account operated by the Public Trustee in the names of the parties, after payment of reasonable costs of sale and any outstanding rates and taxes.
   4. The nature and extent of the appellants' interests in the balance of the proceeds of sale shall be the same as the nature and extent of the interests in the property to be sold.
   5. Within 28 days after payment of the proceeds to the Public Trustee, Westpac may apply to the Court for a declaration as to the amount payable to Westpac pursuant to the relevant mortgage.
   6. The remaining proceeds shall be taken to be the sold property (or the appellants' original interest in that sold property) and shall be dealt with as if it were the subject of the freezing order made in respect of that property.

1. The appellants seek leave to appeal the orders made in respect of each of the properties. Leave is required as the orders are, strictly speaking, interlocutory in nature. The principles relating to whether leave should be granted in appeals from interlocutory decisions are well established.[31] In essence, the determination of whether leave should be granted in this case is dependent upon the merits of the grounds.
2. The grounds of appeal are as follows:
   1. The learned primary judge erred in law (at [207] and [214]) in concluding, upon his interpretation of section 91 of the Criminal Property Confiscation Act 2000 (WA), that the court had an implied power to order that the net proceeds of the sale of the unfrozen property be taken to be frozen property the subject of the original freezing order.
   2. The learned primary judge erred in fact and in law (at [146] to [150] and [214]) in holding that a mortgagee increasing the obligations of the mortgagor under a mortgage over frozen property, by the addition to the mortgaged sum of default interest, legal costs and other expenses, did not constitute a prohibited dealing contrary to section 50(1) of the Criminal Property Confiscation Act 2000 (WA).

1. The CPCA provides for the confiscation, in certain circumstances, of property used in the commission of a crime, derived from the commission of crime, or owned or effectively controlled or given away by a person who has unexplained wealth, has acquired a criminal benefit or who is declared to be a drug trafficker.
2. Confiscation will occur when property is taken or given in satisfaction of a liability to pay the amount specified in an unexplained wealth declaration, a criminal benefits declaration or a crime‑used property substitution declaration.[32] Confiscation will also occur if property is the subject of a freezing order and an objection to confiscation is not filed within 28 days.[33] Further, confiscation of all of a person's property will occur if a person is declared (or taken to be declared) a drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 (WA).[34]

1. To ensure that property is preserved pending the outcome of confiscation proceedings, the CPCA provides for freezing orders to be made on the application, relevantly, of the DPP.[35] The circumstances in which the court may make a freezing order are provided for in s 43. Relevantly, s 43 provides:

43. Freezing orders, making

...

(3) The court may make a freezing order for all or any property that is owned or effectively controlled by the person or that the person has at any time given away if -

(a) a production order has been made against the person; or

(b) an application has been made against the person for an unexplained wealth declaration, criminal benefits declaration, crime‑used property substitution declaration or production order; or

(c) the applicant for the freezing order advises the court that such an application is likely to be made within 21 days after the freezing order is made.

(4) The court is not to refuse to make a freezing order for property under subsection (3) only because the value of the property exceeds, or could exceed, the amount that a person could be liable to pay under section 14, 20 or 24 if the declaration is made.

(5) The court may make a freezing order for all or any property that is owned or effectively controlled by a person, or that the person has at any time given away if -

(a) the person has been charged with an offence, or the DPP advises the court that a person is likely to be charged with an offence within 21 days after the day on which the freezing order is made; and

(b) the person could be declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 if he or she is convicted of the offence.

...

(7) A freezing order may be made under subsection (3) or (5) for all property acquired after the order is made -

(a) by the person; or

(b) by another person at the request or direction of the first‑mentioned person.

(8) The court may make a freezing order for property if there are reasonable grounds for suspecting that the property is crime‑used or crime‑derived.

1. Section 45 of the CPCA provides for the court's powers when making freezing orders. For example, s 45(a) provides that the court may direct that any income or other property derived from the property while the order is in force is to be treated as part of the property. As noted earlier, the primary judge found that that provision relates to income or produce of frozen property and does not extend to the proceeds of a sale of the property.
2. Section 48 of the CPCA provides that a freezing order for registerable real property comes into force once a memorial of the making of the order is registered. In circumstances where a freezing order is made on a singular ground, s 48(2) provides that the order only stops being in force if a further memorial as to the occurrence of an event is registered. For example, if the freezing order was made under s 43(8) on the basis that the property was suspected of being crime‑used or crime‑derived, a further memorial must be registered if the freezing order is set aside at the request of the applicant or in proceedings on an objection, or the property is confiscated under s 6, s 7 or s 8.[36]
3. Section 79 of the CPCA provides for the filing of an objection to the confiscation of frozen property. On hearing an objection, the court may set aside the freezing order to the extent permitted under s 82, s 83 or s 84.
4. It is unnecessary for present purposes to set out all of the circumstances in which a freezing order may be set aside. They include where the objector establishes that the property is not, relevantly, crime‑used or crime‑derived. There is also a power to make an order that an objector be paid an amount equal to the value of their share in the property when the property is sold after confiscation.[37] This power can be exercised where the objector establishes that they are both an owner and 'innocent party' in relation to the property. An innocent party is defined in s 153. Broadly, the term describes a person who was not in any way involved in the commission of the relevant confiscation offence and did not know, or have any reasonable grounds for suspecting, that the offence was being or would be committed, or took all reasonable steps to prevent its commission.

1. Section 50 of the CPCA provides that a person must not deal with seized or frozen property in any way. A number of exceptions to that general prohibition are provided for. One such exception is for a person acting in accordance with an order under s 91(2).[38]
2. Section 151 of the CPCA provides a definition of 'dealing with' property:

151. Term used: deal (in relation to property)

A reference in this Act to dealing with property includes a reference to doing or attempting to do any of the following -

(a) sell the property or give it away;

(b) dispose of the property in any other way;

(c) move or use the property;

(d) accept the property as a gift;

(e) take any profit, benefit or proceeds from the property;

(f) create, increase or alter any legal or equitable right or obligation in relation to the property;

(g) effect a change in the effective control of the property.

1. Section 52 of the CPCA provides that, if mortgaged property is frozen, nothing in the Act prevents the mortgagor from making payments in accordance with the mortgage or prevents the mortgagee from accepting such payments. However, the mortgagor can only make payments with money that has not been otherwise seized or frozen.

1. Section 89(1) of the CPCA provides that the DPP has responsibility for the control and management of frozen property unless the court otherwise orders under s 45(c) or s 91(2). The DPP may appoint an owner of frozen property to manage it.[39]
2. Section 91(1) of the CPCA provides that an owner of frozen property may apply to the court for an order in relation to the property. By s 3 and the Glossary to the Act, an 'owner' is a person who has a legal or equitable interest in the property. Section 91 provides:

91. Control etc. of frozen property by owner, court may order

(1) An owner of frozen property may apply to the court for an order under subsection (2) in relation to the property.

(2) On hearing an application, the court may, if it thinks fit, by order appoint the person -

(a) to control and manage the property while the freezing notice or freezing order is in force; or

(b) to sell or destroy the property.

1. Section 92 of the CPCA provides that a person responsible for the control or management of the property must take reasonable steps to ensure that the property is appropriately stored or managed, and appropriately maintained until:

(a) it is returned to the person who it was seized from or to a person who owns it; or

(b) another person becomes responsible for the control and management of the property; or

(c) the property is sold or destroyed; or

(d) the property is otherwise disposed of.

1. Special provisions are made in pt 7 div 2 of the CPCA for the disposal of deteriorating or undesirable property. Section 94 provides that:

94. Deteriorating frozen property, sale of

(1) A person who has responsibility for the control or management of frozen property may apply to the court for an order under subsection (2).

(2) The court may order that the property is to be sold if it is more likely than not that -

(a) the property is or will be subject to substantial waste or loss of value if it is retained until it is dealt with under another provision of this Act; or

(b) the cost of managing or protecting the property will exceed the value of the property if it is retained until it is dealt with under another provision of this Act.

(3) If the Public Trustee has the control or management of frozen property under this Act, the Public Trustee may sell the property in the circumstances referred to in subsection (2), without obtaining an order under that subsection, if -

(a) the Public Trustee gives adequate notice of the proposed sale to the owner of the property; and

(b) the owner does not file an objection to the sale in the court that made the freezing order.

(4) When frozen property is sold under an order under subsection (1), or under subsection (2), the net proceeds of the sale are taken to be frozen property that is subject to the freezing notice or freezing order made in respect of the sold property.

1. By s 106(1) of the TLA, a mortgage under the TLA has effect as a security but does not operate as a transfer of the land to the mortgagee. The interest of the mortgagee is instead in the nature of a statutory charge.
2. Section 108 of the TLA provides for various statutory powers in the event of default, including the statutory power of sale.
3. If the mortgagee sells the mortgaged or charged land, they must apply the sale proceeds in the following order, in accordance with s 109 of the TLA:
   1. First, pay the expenses of and incidental to the sale.
   2. Second, pay the moneys due or owing on the mortgage.
   3. Third, pay any subsequent mortgages or money which may be due or owing in their respective priorities; and
   4. Pay any surplus to the mortgagor.

Relevant principles of statutory interpretation

1. Statutory construction is a process of determining the objective meaning of the legislation by the application of recognised rules of interpretation to the legislative text, understood as a whole and in its context.
2. The primacy of the language which Parliament has chosen to use was emphasised by French CJ, Hayne, Crennan, Bell and Gageler JJ in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd:[40]

'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text'. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself. (citation omitted)

1. The modern approach to statutory interpretation is to consider context in the first instance, not merely when ambiguity is thought to arise. This requires the court to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the relevant statute. Context also includes such things as the existing state of the law and the mischief that the statute was intended to remedy. Inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which is reasonably open and more closely conforms to the legislative intent.[41]
2. The purpose of a statutory provision may be apparent from an express statement of purpose in the statute, inference from the text and structure and, where appropriate, extrinsic materials. Identifying the legislative purpose is itself an objective exercise of statutory construction, which does not involve a search for what those who promoted or passed the legislation may have had in mind when it was enacted.[42] The purpose must be derived from what the legislation says, rather than from any assumption about the desired or desirable reach or operation of the relevant provisions.[43]
3. Even if the purpose of a statute can be discerned, the language used will not always permit a construction that will serve that purpose. If the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances. Nevertheless, where the purpose is clear, a court may be justified in giving a provision 'a strained construction' in order to achieve that purpose, provided that the construction is not unreasonable or unnatural.[44] If the target of a provision is clear, the court's duty is to ensure that the target is hit rather than to record that it has been missed. As a result, on rare occasions a court may be justified in treating a provision as containing additional words if those words will give effect to the legislative purpose.
4. Where the legislature vests jurisdiction in an established court then, in the absence of express words to the contrary, it is presumed that the intention of the legislature is to take the court as it finds it. The effect is to incorporate into any grant of power to a court all the necessary incidents and procedures applicable to the exercise of that power by the court.[45] That principle was applied to the CPCA in Mansfield v DPP,[46] where the High Court held that, although s 43 makes no express provision for the court to require an undertaking as to damages when making a freezing order, within the authority conferred by that section, the court had such a power.
5. As to the nature of the other powers that are incorporated into a grant of power, in Grassby v The Queen,[47] the High Court held that a grant of power carries with it everything necessary for its exercise. The term 'necessary' in this context means reasonably required or legally ancillary to the accomplishment of the specific remedies provided for in the relevant statute.[48] The presumption that a grant of power is deemed to confer all such powers as are reasonably necessary to enable the person given the power to do or to enforce the doing of the act is also reflected in s 50 of the Interpretation Act 1984 (WA). That includes the power to impose reasonable conditions on the grant of an authority or approval.
6. The appellants emphasise that s 94 of the CPCA expressly provides that the net proceeds of a sale are taken to be frozen property, whereas s 91 does not. Reliance is placed on the maxim expressio unius est exclusio alterius (the express mention of one thing excludes others), which provides that where legislation includes provisions relating to similar matters in different terms, it can be assumed that there was a deliberate intention to deal with them differently. The argument is that the express provision in s 94 that the net proceeds of sale are taken to be frozen property, with the absence of such a provision in s 91, indicates that the omission was deliberate and that Parliament intended that the net proceeds of a sale pursuant to s 91 shall not be taken to be frozen property, and that there is no implied power to order otherwise. The High Court has said that the maxim must always be applied with care, and that it only applies when the intention it expresses is discoverable on the face of the statute. It is said to be 'a valuable servant, but a dangerous master'.[49]
7. There is a general principle that penal provisions are to be construed strictly and that intractable ambiguities should be resolved in favour of the accused person. That principle has been extended to provisions relating to the forfeiture of property. It has been acknowledged as being applicable in the interpretation of the CPCA.[50] However, the mere discovery of an ambiguity does not automatically require a construction that favours the owner of affected property. It remains the case that in construing legislation the court's duty is to identify and apply the legislative intention reflected in the language and purpose of the statute.[51]

1. The appellants submit that the primary judge failed to give weight to the fact that the legislature has expressly provided in s 94 that the net proceeds of a sale under that provision become frozen property as if they formed part of that property.[52] It is contended that ordering that the net sale proceeds are taken to be frozen property subject to the original freezing order defeats the rights of the parties who have acquired interests prior to the deeming order.[53] The appellants argue that the effect of an order deeming the proceeds to be property frozen under the freezing order is to retrospectively interfere with the rights of the parties. According to the appellants, such a power is not incidental to a power of sale, and thus explains why it was expressly included in s 94. In these circumstances, the absence of a similar provision in s 91 is said to be significant.
2. The appellants submit that the primary judge's reliance on Mansfield was inapposite.[54] In Mansfield, the vesting of discretion to make a freezing order carried with it an implicit power to require the giving of an undertaking as to damages. The appellants contend that the power to order a sale of frozen property carries with it no implicit power to make an order that the net proceeds will be frozen under the original order.
3. The appellants submit that the primary judge erred by stating that the effect of a sale under s 91 is to substitute the net sale proceeds for the property sold. The appellants say that this is not necessarily so, as there may not be any net proceeds.[55] Further, it is said that the fact that the changed circumstances may not make it viable for the DPP to apply for a new freezing order over any proceeds is not a reason to order that the proceeds will be subject to the existing order.
4. The appellants submit that the primary judge failed to explain how the release of the net proceeds would be inconsistent with the operation of the CPCA.[56] It is said that the focus of the primary judge was on the the owners as, in effect, the undeserving beneficiaries of a sale order if a deeming order regarding the proceeds was not made, and that His Honour overlooked the power of the DPP in the scheme of the CPCA.

1. The DPP submits that the approach of the primary judge was entirely conventional and appropriate.[57] His Honour was correct to rely on Mansfield to support the conclusions that the legislature takes the court as it finds it, and that there is a power to vary a freezing order when determining the extent of the power conferred by s 91. The DPP submits that it is wrong to characterise a sale under s 91 as defeating the rights of parties who acquired an interest in the property prior to the freezing order. The purpose of the order was to preserve the status quo as regards the State and the appellants, whilst ameliorating the effect of the freezing order on 'innocent' owners, such as a mortgagee.[58]
2. The DPP submits that, in any event, any impact of the deeming order on the rights of the appellants is a matter that goes to the exercise of the discretion under s 91, not the ambit of the power contained in that section.[59]
3. The DPP submits that the primary judge was correct to hold that the absence of a deeming provision akin to that in s 94(4) was not fatal to the implication of such a power in s 91. The DPP points to differences between the two sections, in particular that, if the Public Trustee has control or management of property, the Public Trustee may sell the property without obtaining an order from a court in the circumstances provided for in s 94(3).[60] This explains the need for the deeming provision in s 94(4). Without that provision, a sale by the Public Trustee without a court order would operate to terminate the pending confiscation proceedings.
4. Westpac submits that an order under s 91(2) does not involve 'unfreezing' the property the subject of a freezing order, as implied by ground 1 of the appellants' submissions. Rather, an order under s 91(2) is in the nature of granting permission for a person to sell property which is subject to a freezing order.[61] The question of statutory construction is whether the power to appoint the 'owner' of 'frozen property' to sell the property under s 91 carries with it the power to order that the net proceeds from the sale are taken to be subject to the freezing order made in respect of that property.
5. Westpac submits that such a power is legally ancillary to the exercise by the court of its power to, if it thinks fit, appoint an owner of frozen property to sell the property.[62] Absent such a power, the automatic result of a sale by a s 91 order is that the frozen property sold would be replaced with 'unfrozen' property (the net sale proceeds) and the entirety of the net sale proceeds would be released for the benefit of all owners, including those who may possibly be involved in criminal activity.[63] Westpac says that this would be contrary to the purpose of the CPCA.[64]
6. Westpac draws upon the primary judge's observations that other provisions in the CPCA do not provide the solution to the issue. The DPP cannot simply apply for a new freezing order in respect of the net sale proceeds because such application would be assessed in an environment different to when the original freezing order was made, and the ground on which the sold property was frozen may no longer exist.[65]
7. The position of Westpac is that s 34(5) and s 43(7) of the CPCA do not assist with the issue. Both sections are limited to certain types of freezing notices and orders and do not remedy the absence of an express power in s 91 to make an order for the freezing of net sale proceeds.
8. Westpac submits that the solution is instead found in recognising that s 91 contains an implicit power to order that the net proceeds of a sale, made in accordance with a s 91 order, are taken to be the subject of the original freezing order. That is because, absent such a power, it is difficult to see how the court would '[think] fit' to appoint an owner to sell frozen property, where to do so would have the effect of releasing the property for the benefit of all owners. This would make the power in s 91 futile.[66]
9. Westpac submits that the express inclusion of a deeming provision in s 94(4) does not disclose an intention to exclude an implicit power in s 91 to order that net proceeds of a sale are subject to the original freezing order.[67] The two sections operate differently; the purpose of sale under s 94 is to preserve value, so it is unsurprising that the proceeds will be deemed frozen property. The difference may also be explained by the fact that a sale under s 94, if executed by the Public Trustee, may occur without an order or involvement of the court.
10. As to the interference with rights argument, Westpac adopts the primary judge's conclusion that an order retrospectively deeming the net sale proceeds to be frozen, in effect, recognises that the benefit of the property sold resides in the net sale proceeds, and as such, the owners of the property sold will have a beneficial interest in any surplus.[68] Westpac submits that this reasoning is consistent with O 5 made by the primary judge in relation to each property, which expressly recognises that the nature and extent of the interests of the parties in the net sale proceeds are the same as their respective interests in the property sold at the time the property was frozen.

1. Ground 1 asserts that the primary judge erred in law in concluding that, on the proper construction of s 91 of the CPCA, 'the court had an implied power to order that the net proceeds of the sale of the unfrozen property be taken to be frozen property the subject of the original freezing order'. The implication that the property was 'unfrozen' for the purposes of sale is incorrect.
2. Section 91(2) provides that, on hearing an application by an owner to sell frozen property, the court may, if it thinks fit, appoint the person: (a) to control and manage the property while the freezing notice or freezing order is in force; or, (b) to sell or destroy the property. The prohibition in s 50(1) against dealing with frozen property does not apply to a person acting in accordance with an order under s 91(2).[69]
3. Thus, contrary to what is implied by ground 1, an order under s 91(2) does not involve 'unfreezing' the property subject of a freezing order. Rather, an order under s 91(2) is in the nature of granting permission for a person to, relevantly, sell the property the subject of a freezing order. To think of an order under s 91(2) as 'unfreezing' the property runs the risk of confusing the essential question of statutory construction raised by ground 1.
4. That question is whether, as the primary judge held, the grant of the power to appoint an 'owner' of 'frozen property' to sell the property carries with it the power to order that the net proceeds from the sale are taken to be subject to the freezing order made in respect of the property.
5. The starting point is the text of s 91. That section makes provision for the sale of frozen property where an application is made by an owner to the court. As the property in question here is registerable real property, 'the court' in this case is the Supreme Court.[70] The court may, if it thinks fit, appoint the person to sell the property. The power to make a sale order is therefore a discretionary one. The section does not stipulate any factors that must be taken into account in deciding whether to make an order. The phrase 'if it thinks fit' are words of wide import, though it may be inferred that the exercise of that discretion will be informed by the objectives of the CPCA.
6. It is consistent with the conferral of a discretion that it was envisaged that there would be a range of possible outcomes available to the court. It is not simply a binary question of ordering a sale or not ordering a sale. Whether the court will think fit to order a sale may depend on the terms and conditions of that sale. This implies that it will be open to the court to impose conditions that will make a sale of the property appropriate.
7. In conferring the power to make orders under s 91 on existing courts, including in this instance the Supreme Court, the legislature must be presumed to have intended to take the courts as they are found. This necessarily implies that the court, when exercising that power, can use any ancillary powers or procedures that are available to it. Further, the conferral of the power to order a sale of frozen property must be assumed to carry with it everything that is reasonably required or legally ancillary to the accomplishment of a sale of frozen property under the CPCA.
8. A power to order that the net proceeds of a sale are to be deemed frozen property under the existing freezing order must be legally ancillary to a sale order. That is because the purpose of a freezing order is to preserve property so that it will be available to meet any confiscation order that is ultimately made. A sale order with an ancillary order deeming the net proceeds to be property frozen under the freezing order would have the effect of continuing to preserve the value that would have been available to meet a confiscation order if that property had not been sold.
9. In contrast, an interpretation of s 91 which contends that there is no power to make an ancillary order regarding the proceeds of sale is not easily reconciled with the purposes of the CPCA. Relevantly, the long title of the CPCA makes clear that the purposes of the CPCA include to provide for the confiscation in certain circumstances of property acquired as a result of criminal activity and property used for criminal activity.[71] That purpose would not be served if, upon a sale pursuant to a s 91 order, the net sale proceeds are released to all owners, including, possibly, persons who were involved in (or who know of) the criminal activity which led to the property being frozen and liable to confiscation. The appellants accepted at first instance that that would be the effect of a sale order without any ancillary order, and do not challenge it on appeal.[72]
10. Further, if there was no power to make an ancillary order regarding the proceeds of a sale of frozen property, the effect of a sale order would be to discharge the freezing order. That outcome sits uncomfortably with the fact that the CPCA provides detailed procedures for the setting aside or discharge of freezing orders. It is unlikely that the legislature intended that an owner could avoid the mechanisms for discharging a freezing order under s 49 and s 82 to s 84 by making an application for sale of the property under s 91. That a sale under s 91 is generally not intended to terminate a freezing order is also consistent with the fact that such a sale is not a prohibited dealing under s 50.
11. The objective of s 91 is to allow for frozen property to be sold without prejudicing the contingent interest of the State in that property. There are many reasons why an owner may wish to sell property that is frozen. For example, a registered owner may want to preserve value in a falling market, or take advantage of a high value in a buoyant market, or discharge a mortgage that is reducing the equity. A mortgagee may want to recover loan funds because a mortgage has fallen into default, as is the case here. The interests of an owner in these circumstances are served by permitting a sale, even if the net proceeds remain subject to the freezing order. It would not be in the interests of owners or the State if a sale of frozen property could not occur. If a sale could not occur, a registered owner would be deprived of the opportunity to take advantage of a changing market and a mortgagee could be trapped in a mortgage arrangement that is in default. Section 91 alleviates some of the possible unintended consequences of a freezing order.
12. The fact that s 91 does not provide for the net proceeds to be automatically deemed frozen must be understood in the context that a sale of property under that section can only occur by order of the court. Since an order deeming the net proceeds to be frozen property is ancillary to the power of the court to order a sale of the property, there was no necessity to include an express deeming provision in s 91. It is reasonable to infer that the legislature recognised that the courts would have the power to make ancillary orders of this nature if it was appropriate to do so.
13. The appellants suggest that a power to make orders regarding the proceeds is not reasonably necessary because there are other provisions in the CPCA that could have a similar effect. That suggestion cannot be accepted. As the primary judge observed, the issue is not alleviated by the ability of the DPP to apply for a new freezing order in respect of the net sale proceeds. This is because any such application would need to be assessed in a different environment to that when the original freezing order was made, and the ground on which the sold property was frozen may no longer exist.
14. Nor is the issue addressed by the operation of s 34(5) and s 43(7) of the CPCA. Section 34(5) permits a freezing notice, issued under s 34(3), to include property acquired after the freezing notice is issued. Section 43(7) permits a freezing order, made under s 43(3) or (5), to include property acquired after the freezing order is made. Section 34(5) and s 43(7) are limited to certain types of freezing notices and orders, and thus do not remedy the absence in s 91 of an express power to make an order in respect of the freezing of net sale proceeds. In any event it must be doubted that the proceeds of the sale of frozen property are property acquired after the freezing order was made. The purpose of these provisions is to deal with newly acquired property.
15. The power in s 82(5) and s 83(3) of the CPCA to make an order in objection proceedings that the objector be paid out an amount equal to the value of their interest in the property does not assist. That power only permits such a payment to be made when the property is sold after confiscation. It would only ensure that a mortgagee's interest was protected once confiscation had occurred.
16. The solution to this issue must be found in recognising that there is an implicit power to order that the net proceeds of a sale, conducted under a s 91 order, are taken to be the subject of the original freezing order. Viewed another way, because the power to appoint an 'owner' to sell 'frozen property' may only be exercised 'if [the court] thinks fit', the power would be rendered ineffective if there were no accompanying power to order the net sale proceeds to be subject to the original freezing order. This is because, absent such a power, it is difficult to see how the court could '[think] fit' to appoint an owner to sell frozen property if the effect was to release the net sale proceeds for the benefit of all owners. The court could not form such a view without considering the position of all owners, then concluding that it would be appropriate for all owners to have the benefit of the net sale proceeds. There is no reasonable possibility that such an outcome would ever occur, and the practical reality is that s 91 would be rendered futile.
17. As to the reliance placed on s 94 of the CPCA, the inclusion of an express deeming provision in that section does not stand in the way of the conclusion that there is an implicit power to order that the net proceeds of a sale, carried out under a s 91 sale order, are taken to be subject to the original freezing order. Section 94 is similar to s 91 only in that they both provide for the sale of frozen property. However, the circumstances in which such sales can occur are very different.
18. Section 94 is concerned only with property that is deteriorating in value or where the cost of managing the property will exceed its value. Only a person who has responsibility for the control and management of the property can apply to the court for a sale order under s 94. Further, if the Public Trustee has the control or management of property that is deteriorating in value, the Public Trustee may sell the property without a court order. Where property is sold under s 94, s 94(4) provides that the net proceeds are taken to be frozen property that is subject to the freezing notice or freezing order made in respect of the sold property.[73]
19. The fact that a sale of frozen property may occur under s 94 without a court order provides a ready explanation for the presence of a deeming provision in s 94 and not in s 91. Without such a provision in s 94, there would be no mechanism for preserving the net value of the property in the event of sale by the Public Trustee. It is reasonable to infer that the legislature considered that a deeming provision was necessary in s 94 to cover this eventuality, when it was not necessary in s 91 as no sale could occur under that provision other than by order of the court, which has implied power to make such an order. The differences between the two sections exclude the application of the expressio unius est exclusio alterius maxim. The express inclusion of the deeming provision in s 94(4) does not evince an intention to exclude an implicit power in s 91 to order that the net proceeds of a sale, under a s 91 order, are subject to the original freezing order.
20. Finally, the appellants submit that an order that the net proceeds of a sale, carried out pursuant to a s 91 order, are deemed to be 'frozen property' under the original freezing order has the effect of altering or defeating the rights of parties (including under s 28 of the CPCA). The implication is that this court should be slow to imply such a power having regard to the quasipenal nature of the CPCA. This submission should be rejected for the reasons given by the primary judge.[74] As the primary judge explained, it cannot be assumed that an order deeming the net sale proceeds to be frozen will adversely affect the rights of parties who have acquired interests in the property. Such an order, in effect, recognises that the benefit of the property sold now resides in the net sale proceeds, and the owners of the property sold will ordinarily have a beneficial interest in any surplus.[75]
21. Consistent with this finding, the orders made by the primary judge expressly recognise that the nature and extent of the interests of the relevant parties (the appellants and Westpac) in the net sale proceeds are the same as the nature and extent of their respective interests in the property sold at the time it was frozen. Thus, the appellants' financial position is not adversely affected by the sale and their rights are preserved.
22. In any event, even if an order deeming the net sale proceeds to be frozen were to have the effect of altering or defeating the parties' rights, this is not itself a sufficient reason not to recognise the implicit power to make such an order. In Mansfield, Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ said that the CPCA establishes a 'statutory scheme having a significant impact upon personal and property rights'.[76] This is not a case of resolving intractable ambiguity in favour of the registered owners; rather it is a case where the implied power is plainly consistent with the purpose and context of the CPCA.
23. Finally, there have been other decisions by judges of the General Division regarding the interpretation of s 91. In Westpac Banking Corporation & Ors,[77] Hasluck J held that orders for the sale of property on the application of a registered mortgagee, as well as orders facilitating the sale process and distributing the sale proceeds, can be made as a matter allowed for by the CPCA and pursuant to incidental powers. In Permanent Trustee Co Ltd v The State of Western Australia,[78] McKechnie J came to a different view. In NWC v The State of Western Australia,[79] Hill J preferred the view of Hasluck J. It is unnecessary to analyse the reasoning in each of those cases, all of which were referred to by the primary judge. On an appeal of this nature, the correctness standard applies and it is necessary for this court to form its own view of the correct interpretation of s 91.[80]
24. For the above reasons, the primary judge did not err in concluding that the court has an implied power to order that the net proceeds of the sale of frozen property be taken to be frozen property the subject of the original freezing order. Whilst leave to appeal should be granted, ground 1 should be dismissed.

1. The appellants submit that s 151(f) of the CPCA provides that a reference in the Act to 'dealing with property' includes doing, or attempting to do, the following: 'create, increase or alter any legal or equitable right or obligation in relation to the property'.[81] The appellants say that the primary judge erred by concluding that the accrual of rights under the mortgages did not amount to an act or omission by a party. The appellants submit that Westpac did not simply accrue rights, but rather, that it increased the obligation of the mortgagor by debiting to the relevant mortgage account its costs and default interest.[82] This did not occur automatically, but required a positive act by Westpac. The appellants say that the increase in the amount of the obligation was a prohibited dealing.
2. The appellants seek a declaration in the following terms: 'in so far as [Westpac] seeks to recover from the frozen property comprising 100 Vincent Street, Mount Lawley, 65 Etwell Street, East Victoria Park and 49 Cowle Street, West Perth, penalty interest, solicitors' costs or costs of sale, such conduct constitutes a prohibited dealing contrary to section 50 of the [CPCA]'.

1. The DPP contends that, although the question raised in ground 2 was referred to in the primary judge's reasons, the determination as to how the proceeds of the sales should be disbursed was not finally determined.[83] Rather, his Honour said that, if there was any dispute between Westpac and the appellants in this regard, it would need to be resolved in proceedings between them. The orders allowed for this by ensuring that the proceeds of sale were placed into a trust account in the name of the DPP, Westpac and the registered proprietors. The orders also stipulated that the parties' interests in the funds in that account reflected the nature and extent of their interests in the sold property.
2. Therefore, the DPP submits that ground 2 has no merit because the primary judge's observations which the appellants complain about had no role in the orders which were made.[84] That is, there was no order that quantified the amounts to be paid to Westpac, or specified that the amount was to include penalty interest, costs and charges. The declaration seeks a determination on an issue that was not finally determined by the primary judge.
3. In any event, the DPP asserts that there was no dealing contrary to s 50 because the relevant property alleged to be dealt with by Westpac is not frozen by any of the freezing orders.[85] The DPP submits that the relevant property is Westpac's choses in action arising from the loan agreements between Westpac and the registered proprietors. That property was not frozen by any of the freezing orders made, therefore s 50 is not applicable and there was no contravention of that section.
4. Like the DPP, Westpac asserts that the primary judge's conclusion which is the subject matter of ground 2 was not essential to the orders made. Westpac further submits that ground 2 should be dismissed because an appeal is against orders and not reasons for judgment.[86] Therefore, even if the appellants were successful on ground 2, it would not support setting aside the primary judge's orders.
5. Westpac also submits that there is no contravention of s 50 for the following reasons:
   1. The offence creating provision of s 50(1) requires that a person must not 'deal with' frozen property in any way. Section 50(1) does not apply to a person acting in accordance with an order under s 91(2).[87]
   2. The primary judge correctly accepted that the accrual of Westpac's rights under the mortgages does not meet the requirement of 'dealing with' under s 151, which requires doing or attempting to do something in relation to the property in question.[88] The accrual of interest and costs does not arise from Westpac doing or attempting to do something, but rather occurs by virtue of the relevant loan agreement and mortgage.
   3. Westpac rejects the appellants' submission that it increased the obligation on the mortgagor by debiting the amounts incurred to the mortgage account. The appellants' submission has ignored that the amounts owed increased pursuant to the relevant loan agreements, which occurred without any positive act by Westpac.
   4. By virtue of the TLA, Westpac's interest is in the nature of the statutory power of sale in the event of default. Upon the exercise of the power of sale, s 109 of the TLA requires that the sale proceeds are to be paid to the expenses of the sale, moneys due or owing under the mortgage, any subsequent mortgages or charges, and that any surplus be paid to the mortgagor. Accordingly, Westpac submits that the accrual of interest and costs is not derived from Westpac's rights as mortgagee, but rather through the exercise of the power of sale. Therefore, there is no relevant change to the nature of Westpac's rights as mortgagee.[89]
6. In relation to mortgaged property that is frozen, s 52 permits the making and receipts of payments in accordance with the mortgage.[90] Westpac adopts the primary judge's findings that s 52 recognises the continuation of the mortgagor's obligations under the mortgage.
7. Westpac also asserts that the appellants did not seek the declaration now sought on appeal at first instance before the primary judge. Additionally, Westpac contends that there is a disconnect between ground 2 and the declaration sought. Ground 2 complains of Westpac's supposed conduct in increasing amounts secured by adding default interest, legal costs and other expenses to the mortgage. Whereas, the declaration focusses on Westpac seeking to recover such added amounts from the frozen properties.

1. Ground 2 challenges the primary judge's conclusion that Westpac's accrual of rights under the mortgages, after the freezing orders were made, was not a prohibited dealing under s 50(1) of the CPCA. However, an appeal is against orders, not reasons for judgment.[91] The conclusion reached by the primary judge which forms the subject of ground 2 was not essential to the orders ultimately made by his Honour. Those orders (which defer consideration of the amount of the net sale proceeds to which Westpac is entitled) could have been made even if the primary judge had expressed no view about whether Westpac's continuing accrual of rights under the mortgages contravened s 50(1).
2. Ground 2 does not support the setting aside of any of the primary judge's orders. Rather, what it seeks to do is support the making of a declaration as to an issue that was not finally determined by the primary judge. An appeal is not the forum for the determination of issues that have yet to be resolved between the parties in the primary proceedings.
3. In any event, the primary judge did not err in concluding that the accrual of Westpac's rights under the mortgages was not a prohibited dealing contrary to s 50(1) of the CPCA. Section 50(1) is an offence creating provision. Section 50(1) provides that a person must not 'deal with' seized or 'frozen property' in any way. As mentioned, s 50(1) does not apply to a person acting in accordance with an order under s 91(2).[92]
4. Section 151 provides for an inclusive definition of 'dealing with' property. The chapeau of s 151 makes clear that to 'deal with' property requires 'doing or attempting to do' something in relation to the property in question. The accrual of Westpac's rights under the mortgages does not meet this characterisation. The accrual of interest and costs arises not from Westpac doing or attempting to do something in relation to the property, but rather, by operation of the relevant pre‑existing loan agreement and mortgage.
5. The appellants' claim that Westpac engaged in a positive act by debiting the relevant mortgage accounts with interest and charges, is without merit. The obligation to pay interest and charges arose from the loan agreements and mortgages, and not by reason of any entry made in the books of the bank. The obligation existed independently of any act by Westpac during the currency of the freezing orders.
6. The appellants' claim that the accrual of interest and charges was a change or increase in the mortgagor's obligations in relation to the frozen property, must also be rejected. It is important to recall here that each of the mortgages is a mortgage under the TLA. Unlike a general law mortgage, a mortgage under the TLA takes effect as a security and does not operate as a transfer of the land to the mortgagee. The interest of the mortgagee is in the nature of a statutory charge, consisting of various powers, including, relevantly, the statutory power of sale in the event of default.[93] Upon the exercise of the power of sale, the mortgagee becomes subject to the statutory obligation to apply the proceeds, in order;[94] to pay the expenses of and incidental to the sale, to pay moneys due under the mortgage, to pay any subsequent mortgages or money owing in respect of any subsequent charges (in order of their respective priorities), and to pay any surplus to the mortgagor.
7. Thus, while the accrual of interest and costs may increase the personal obligation owed by the relevant mortgagor to Westpac, it does not alter or increase Westpac's rights as mortgagee, and, in particular, Westpac's power of sale upon default. While the accrual of interest and costs means that, upon exercising the power of sale, Westpac will receive a greater amount of the sale proceeds, this is not due to any increase in its rights as mortgagee. There is no relevant change in the nature of Westpac's rights as mortgagee.
8. Further, s 52 of the CPCA provides that, where property is frozen, nothing in the CPCA prevents a mortgagee from making payments in accordance with an existing mortgage, or a mortgagee from receiving such payments. As the primary judge correctly noted, the existence of s 52 acknowledges the continuation of a mortgagor's obligations under a mortgage where property has been frozen. That accords with the view that s 50(1) does not prohibit the ongoing accrual of interest and costs on the amount secured by the mortgage.
9. It is also noteworthy that s 50 of the CPCA is an offence creating provision but does not itself refer to the legal effect of any prohibited dealing. That work is left to s 51, which provides that; despite any other enactment, any dealing with property that contravenes s 50 has no effect, whether at law, in equity or otherwise, on 'the rights of the State under this Act'. The reference only to the rights of the State implies that other rights, including the rights of a mortgagee of frozen property, are unaffected. This also accords with s 52, which, as noted, recognises the continuation of the rights and obligations under a mortgage.
10. For the above reasons, ground 2 has no merit because it seeks to impugn a finding that was not material to the outcome. Further, the declaration sought relates to a matter that was not finally determined by the primary judge. In any event, the primary judge was correct to find that the accrual of interest and charges under the mortgages did not constitute a prohibited dealing with the frozen property. Leave to appeal on ground 2 should be refused.

1. The appellants accept that leave is required to appeal against the primary judge's orders. Because ground 2 cannot support setting aside the primary judge's orders, any grant of leave should be confined to ground 1. In any event, neither ground is made out. The appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] The Director of Public Prosecutions v Nguyen [2025] WASC 3 [4].

[31] See Arundel v The State of Western Australia [2022] WASCA 89 [24] ‑ [27]; Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda [2015] WASCA 101 [5].

[35] The CPCA also provides for freezing notices, but it is unnecessary for present purposes to refer to such notices.

[40] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39].

[41] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ); SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14] (Kiefel CJ, Nettle & Gordon JJ).

[42] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [25] (French CJ & Hayne J).

[43] Certain Lloyd's Underwriters [26] (French CJ & Hayne J).

[44] Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85, 113 (McHugh J). See also Taylor v Owners Strata Plan 11564 [2014] HCA 9; (2014) 253 CLR 531 [37] ‑ [40] (French CJ, Crennan & Bell JJ).

[45] Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW [1956] HCA 22; (1956) 94 CLR 554, 559.

[46] Mansfield v Director of Public Prosecutions (WA) [2006] HCA 38; (2006) 226 CLR 486.

[47] Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, 16 (Dawson J).

[48] Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 [51] (Gaudron, Gummow & Callinan JJ); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 [40] (Kiefel CJ), [52] (Gageler J), [114] ‑ [115], [118] (Keane, Nettle & Gordon JJ).

[49] Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88, 94.

[50] Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2009] WASCA 97 [32] ‑ [33] (McLure JA, Owen JA agreeing).

[70] CPCA, s 101 and definition of 'court' in the Glossary.

[71] See also Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133; (2010) A Crim R 324 [20] (McLure P), [99] (Buss JA with Owen JA agreeing).

[73] The reference in s 94(4) to 'subsection (1)' and 'subsection (2)' is an obvious typographical error; and, as the primary judge indicated in Nguyen [119], the reference should be read as referring to subsections (2) and (3).

[75] See Bofinger v Kingsway Group Ltd [2009] HCA 44; (2009) 239 CLR 269 [35].

[77] Westpac Banking Corporation & Ors [2001] WASC 365 [35], [65] ‑ [66].

[78] Permanent Trustee Co Ltd v The State of Western Australia [2002] WASC 22.

[79] NWC v The State of Western Australia [2019] WASC 485.

[80] See Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119 [14] ‑ [15].

[91] Driclad Pty Ltd v Federal Commissioner of Taxation [1968] HCA 91; (1968) 121 CLR 45, 64 (Barwick CJ & Kitto J).

[93] See Re C L Forrest Trust; Trustees Executors & Agency Co Ltd v Anson [1952] VicLawRp 51; [1953] VLR 246, 256 (Herring CJ); Figgins Holdings Pty Ltd v SEAA Enterprises Pty Ltd [1999] HCA 20; (1999) 196 CLR 245 [21] ‑ [22] (Gaudron, Gummow & Callinan JJ); Rowe v National Australia Bank Ltd [2019] WASCA 140; (2019) 56 WAR 1 [110] (Murphy JA & Sofronoff AJA).

[94] Transfer of Land Act 1893, s 109(1).