The Commissioner of the Australian Federal Police v Memon (No 4)

Catchwords: PROCEEDS OF CRIME – ss 92 and 92A of the Proceeds of Crime Act 2002 (Cth) – where offenders children claim beneficial interest in restrained property – whether failure to comply with requirements of s 92A will invalidate s 92 notice – whether s 92A requires personal service of notice – whether Commissioner complied with the requirements of s 92A – competing declaratory relief sought –declarations sought by Commissioner made

Legislation Cited: Criminal Code 1995 (Cth)
Proceeds of Crime Act 2002 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: Abedini v Commissioner of the Australian Federal Police [2023] VCC 658
AD v Commissioner of the Australian Federal Police [2018] NSWCA 89
Commissioner of the Australian Federal Police v Hart; Commonwealth of Australia v Yak 3 Investments Pty Ltd; Commonwealth of Australia v Flying Fighters Pty Ltd [2018] HCA 1
Halac v Commissioner of the Australian Federal Police [2016] NSWCA 146
Hyder v Commonwealth of Australia [2012] NSWCA 336
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Mai v Commissioner of the Australian Federal Police [2020] VSCA 38
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Studman v Commonwealth Director of Public Prosecutions [2007] NSWCA 285
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
The Commissioner of the Australian Federal Police v Memon (No. 1) [2020] NSWSC 1619
The Commissioner of the Australian Federal Police v Memon (No. 2) [2020] NSWSC 1636
The Commissioner of the Australian Federal Police v Memon (No. 3) [2020] NSWSC 1799

Category: Principal judgment

Parties: The Commissioner of the Australian Federal Police (Plaintiff)
Rehana Ali Mohamed Memon (Defendant)
Rabiya Kazam Mohamed (Interested party)
Sufian Kazam Mohamed (Interested Party)

Representation: Counsel:
Dr GOJ O'Mahoney and D Tang (Plaintiff)
T Muir (Defendant)
G James KC with K Lloyd and K McCallum (Interested Parties)
Solicitors:
Australian Federal Police (Plaintiff)
Kingston Fox Lawyers (Defendant)
T O’Connor Legal and Consulting (Interested Parties)

File Number(s): 2020/270652

Publication restriction: Nil

JUDGMENT

1. In September 2020, the Commissioner obtained ex parte restraining orders under the Proceeds of Crime Act 2002 (Cth) in respect of various of Ms Memon’s assets, including five residential properties. Ancillary orders and an order requiring her to provide a sworn statement about her assets and liabilities were also made: Adams J (17 September 2020 Unreported). The suspected offending on which the orders rested were offences under s 134.2, 135.1 and 400.9(1) of the Criminal Code 1995 (Cth), committed in connection with the provision of services for the National Disability Insurance Scheme.

2. Later in 2020, Johnson J gave a number of judgments refusing an application made by Ms Memon under s 24 of the Proceeds of Crime Act in relation to her expenses*: The Commissioner of the Australian Federal Police v Memon (No. 1)* [2020] NSWSC 1619, The Commissioner of the Australian Federal Police v Memon (No. 2) [2020] NSWSC 1636 and The *Commissioner of the Australian Federal Police v Memon (*No. 3) [2020] NSWSC 1799.

3. In April 2024, Ms Memon was convicted of 22 offences contrary to s 134.2 of the Criminal Code, with the result that in May 2024 she was sentenced to a total of 6 years imprisonment. The original restraining orders were later varied by consent in August 2024 by Dhanji J: (14 August 2024 Unreported).

4. On 30 January 2025, two interested parties, Ms Memon’s children, Ms Mohamed, who also represented her brother Mr Mohamed as tutor, sought declarations that two of Ms Memon’s properties, at Elm Road and Banksia Street, had not been forfeited under s 92 of the Proceeds of Crime Act. They both gave affidavit evidence, as did their father and their solicitor, Mr O’Connor.

5. The children claim that their mother held 50% of the two properties in trust for their benefit, that interest having been transferred to her for that purpose by their father in 2018, when their marriage came to an end. Those properties having earlier been acquired lawfully, by way of transfer of funds from overseas, lawful borrowing in Australia and lawful income derived in Australia.

6. In February 2025, the Commissioner sought declarations under s 95 of the Proceeds of Crime Act that the disputed properties had been forfeited on 1 December 2024. This motion was supported by the affidavit evidence of Mr Mathews, one of the AFP officers who had originally executed the search warrant at Ms Memon’s property before the restraining orders were made and Mr Bull, a Special Member of the AFP and member of the Criminal Assets Confiscation Taskforce.

7. In February 2025, Ms Memon then sought declarations that the Commissioner had failed to comply with the requirements of s 92A of the Proceeds of Crime Act, with the result that all of the property listed in schedules 1 to 5 of the 2020 restraining orders had not been forfeited.

8. The Commissioner also relied on affidavits which Ms Memon swore in October 2020, on which she had relied in the proceedings before Johnson J.

9. There is no issue that neither Ms Memon nor her children have made an application for exclusion of any of the restrained properties from the restraining orders, even though the children became aware of those orders in August 2024, before the forfeiture of the properties took effect under the statutory scheme in November 2024.

10. That was the result of the service of a notice to occupiers to which a solicitor was instructed to respond. He wrote in September 2024 to advise that the children were residing at the Elm Road property, but their claimed interest in the disputed properties was not raised or pursued, as they then still could have been by an application under s 94, for an order excluding the properties in which they claim an interest from forfeiture.

11. No notice was given of the children’s claimed interest in those properties until their current solicitor, Mr O’Connor, wrote to the Commissioner in December 2024, after the property had been forfeited in November. Still their claimed interest in the property was not pursued, as it could have been by an application under s 102, for transfer of their interest back to the children.

12. Instead, they pursued declaratory relief which depends on the disputed construction of the Proceeds of Crime Act*,* one which Ms Memon supports.

13. But there is no suggestion that the children’s father has any interest in any of the restrained properties, he having earlier transferred his interest in the Elm Road and Banksia Street properties in which the children claim an interest to Ms Memon, in accordance with a financial agreement which he had reached with her in 2018.

Conclusion

14. For reasons which follow I am satisfied that the declarations which the Commissioner seeks must be made and those sought by the other parties refused.

Issues

15. There is no issue that:

16. Ms Memon and Mr Mohamed purchased the Elm Road and Banksia Street properties as joint tenants in 2011 and 2015, with part of the purchase prices funded by way of bank borrowings secured by mortgages;

17. Those mortgages were discharged in 2018;

18. In 2018, Ms Memon and Mr Mohamed also entered into an Islamic divorce, as well as a property settlement about which they were legally advised. The result being that their financial agreement was documented, but it made no reference to the interest in the Elm Road and Banksia Street properties which the children now claim;

19. In 2018, Mr Mohamed also transferred his interest in the two properties to Ms Memon, for $1 consideration for each property;

20. At the time Ms Memon was arrested and charged in 2020, she was living at the Elm Road property with the children, then aged 12 and 14 and Mr Mohamed was living elsewhere;

21. Soon after her arrest in 2020 Mr Mohamed moved to that property to care for the children;

22. The Court’s 2020 orders, made under ss 18 and 19 of the Proceeds of Crime Act, restrained various real property specified in Schedules 1 to 5, including the Elm Road and Banksia Street properties and schedules 6 to 9 specifying restrained bank accounts and a car;

23. Orders under s 38 that the Trustee take custody of certain property were also then made;

24. It was in May 2024 that Ms Memon was convicted of “serious offence[s]” within the meaning of s 92 of the Proceeds of Crime Act;

25. Ms Memon was in custody serving her sentence when the 11 July 2024 s 92A notice was served on her then solicitor, Mr Awada. It was not served personally on Ms Memon and no such notice was served on her children or their father;

26. On 19 August 2024 the children received the letter enquiring about who was occupying the Elm Road property, which was forwarded to the solicitor Mr Awada, who they understood would take care of it;

27. The restraining orders were varied in August 2024 by consent orders made by Dhanji J, when Ms Memon was represented by Mr Awada, but they did not deal with the properties the children claimed to have an interest in;

28. On 3 September 2024, Mr Awada wrote to the Commissioner advising that Ms Memon’s children were residing at the Elm Road property; and

29. On 9 December 2024, a notice to vacate was served on the children.

30. What is in issue turns on the proper construction of the statutory scheme, the orders made in the proceedings and their effect. In particular, it is the operation of ss 92 and 92A of the Proceeds of Crime Act and their interaction which is in issue, there seemingly being no prior authority in which that has arisen to be considered.

31. There is no issue about the principles which have to be applied in their construction. They are those discussed in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14]. There, it was explained that the starting point is the text of the statute whilst, at the same time, regard must be had to its context and purpose, context being regarded at this first stage and not at some later stage.

32. What is in issue thus includes:

33. The effect of the Court’s restraining orders;

34. The proper construction of ss 92 and 92A and whether:

(a) Section 92A required the Commissioner to give Ms Memon’s children a notice under that section, given their claimed beneficial interest in the Elm Road and Banksia Street properties, as a precondition to their forfeiture under s 92; (b) Section 92A required personal service of a written s 92 notice; (c) A failure to serve a s 92A notice on the children and on Ms Memon personally, invalidated the forfeiture of the restrained property under s 92; and (d) The variation of the restraining orders in August 2024 required the giving of a further s 92A notice.

3. Whether the Court should exercise the discretion it is given by s 95 to make the declarations the Commissioner sought; and
4. Whether the declarations the other parties sought should be made instead.

The parties’ cases

19. In resisting the relief the Commissioner pursued and advancing their own motion, Ms and Mr Mohamed relied on the terms of the Court’s 2020 restraining orders, which they contended could not have resulted in the forfeiture of their interest in the properties. Relying on Abedini v Commissioner of the Australian Federal Police [2023] VCC 658 at [171]-[174] and Mai v Commissioner of the Australian Federal Police [2020] VSCA 38 at [28] to submit that a right to occupy property has been recognised to be a relevant interest in the property.

20. Their interest was explained to be:

(a) The right to occupy as the current inhabitants of the Elm Road property; (b) A future right to occupy as minors whose mother had been incarcerated; (c) An equitable interest in at least 50% of both properties by way of a trust arising from the transfer from Mr Mohammed to Ms Memon and/or under their binding financial agreement and/or their family arrangement made in contemplation of the Islamic dissolution of marriage; and (d) A future beneficial interest by way of Ms Memon’s obligation to transfer to them their interest under the binding financial agreement and family arrangement and/or by way of inheritance under the Defendant's will, whether by way of implementation of that agreement or otherwise.

21. It was also contended that even if the Commissioner did not have actual knowledge of the children’s interest in the properties, he ought to have known of the potential that they had some form of equitable interest. Given that, at the time the restraining orders were sought, the Commissioner was aware of the transfer of their father’s interest in the properties in 2018 to their mother and by August 2020, having become aware that Ms Memon had executed a will at a similar time to the separation, which had made provision for their interests. That having established that there had been some relevant form of marriage settlement.

22. This had been explored in Ms Memon’s s 24 application, at a time when the Commissioner was in possession of the marriage settlement agreement. Then she gave vague evidence, nut still it ought to have led to an investigation of her children’s interests in the property in which they were living, given the extraordinary forfeiture provisions of the Proceeds of Crime Act.

23. Ms and Mr Mohamed also relied on the consequences of the construction of the statutory scheme for which the Commissioner contended, the loss of the home which their parents had arranged for them to have an interest in. As well as the claimed denial of natural justice and procedural fairness which had resulted in the Commissioner’s failure to have given them a s 92A notice, before forfeiture of the property took effect.

24. That being a notice which they ought to have been given, given what was then known about their circumstances and what the Act intended. Namely, that notice be given to those with an interest in restrained properties, before automatic forfeiture.

25. On their case, it was obvious to the whole world that they were residing at the Elm Road property at all relevant times and that any enquiry would have ascertained that they were living there with their father. Any enquiry of him would have resulted in the disclosure of their interest in the properties.

26. There was no evidence that such enquiry had been made. But s 92A contemplated that active steps would be taken to ascertain the rights and claims of those in occupation of a property, before statutory forfeiture occurred.

27. None had been taken to establish the children’s interests, despite the Commissioner having a copy of the parents’ financial agreement. Enquiry was not even made of the Official Trustee about the identity of the occupants, despite the Commissioner being a model litigant exercising broad-ranging and draconian powers.

28. The result of their exercise, on the Commissioner’s approach, having been that the children had been deprived of the opportunity which the legislative scheme intended persons such as them to have. That is, to apply to protect their interest in the restrained properties before forfeiture resulted. That was not what was intended and so the relief they sought should be granted by the Court.

29. That being because the Commissioner should be in no better position than he would have been, if proper enquiry had been made as to their interests. The failure to make relevant enquiry should thus result in the acceptance that there had been constructive notice of their interest, as that doctrine applies in real property transactions.

30. As a result, s 92 should be interpreted as providing that a person’s interest in property will not be forfeited automatically, unless a notice under s 92A is given beforehand.

31. Ms Memon’s case supported that advanced by her children, in part. She opposed the declarations which the Commissioner sought being made, relying on the Commissioner’s notice not having been served on her personally in custody, as it could have been. As well as she not having been present in court when the consent orders were made by Dhanji J in August 2024, even though she was then legally represented.

32. In written submissions the errors with the Commissioner’s notice about which complaint was made were explained to be:

33. It was not personally served;

34. The date of forfeiture was inconsistent with the date in the notice of motion filed by the Plaintiff on 10 February 2025;

35. The s 92A notice was rendered incorrect and void after the consent August 2024 orders they specifying different property and that requiring a fresh s 92A notice to be served, which had not occurred;

36. When the Court made the August orders the Commissioner was, by virtue of s 92A, required to serve a notice under that provision. It failed to do so. The former notice of 11 July 2024 did not, and could not, cure that failure;

37. Unless properly served and in the proper format, including accurate information required by the Act, a failure to serve a s 92A notice on any person that the AFP reasonably knew had an interest, including the children who claimed such an interest, the restrained properties could not forfeit; and

38. Neither the wording of the 2020 restraining orders nor do the August 2024 orders specified as they had to a particular interest of such persons in the restrained property.

39. Ms Memon also contended that s 92A was expressed in mandatory terms as a “precursor” to s 92 operating. It providing for forfeiture at the end of the 6-month period following conviction without further order of the Court, that having a draconian effect on ordinary property rights. Section 92A having been introduced in 2010 in terms which were argued to be ambiguous, the result was that it had to be construed in favour of affected citizens, rather than in favour of its drafter, the Commonwealth.

40. It was accepted that the relevant Explanatory Memorandum shed no light on the consequences of any failure to give a s 92A notice, which was also not expressly dealt with elsewhere in the Act. But it was argued that it would be inferred that the result of non-compliance with the notice provision was that forfeiture did not result under s 92.

41. It was also contended that the amendment of the Court’s original orders in August 2024 had the result that a further s 92A notice had to be given, before forfeiture could result under s 92. Such notice not having been given, it followed that reasonable steps had not been taken by the Commissioner to give those with an interest in property the required notice and the properties had not been forfeited.

42. Further, it would be accepted that no notice at all had been given to Ms Memon, the only s 92A notice given not having been served on her personally and the solicitors who represented her in the criminal proceedings, not having been solicitors on the record in these proceedings.

43. What the Commissioner ought to have done in those circumstances was to serve her personally with the notice where it was known that she was kept in custody, with a copy being emailed to her solicitor. That constituting the reasonable steps which should have been taken in her circumstances, given that she was then serving a term of imprisonment.

44. The result of the Commissioner’s failure to comply with s 92A was that forfeiture under Pt 2, Divs 2-3 of the Act had not resulted. With the result that the Court should now exercise the discretion s 95 gave it to refuse to make the declarations sought by the Commissioner.

45. The Commissioner resisted the cases so advanced, denying that the evidence established that before forfeiture, the reasonable belief about Ms and Mr Mohamed’s claimed interest in the disputed property, on which s 92A depended, existed. Or that their case and that of Ms Memon, that it was one which should have come into existence, given what was then known, could be accepted.

46. Further, given what was in fact known to the Commissioner, including as the result of matters which Ms Memon had pursued and evidence which she had given before Johnson J, the claimed belief could not have come into existence.

47. The construction of the Proceeds of Crime Act for which the defendants contended was also submitted not to be available given the express terms of ss 92 and 92A, considered as they had to be in their statutory context and in light of how s 92 has earlier been construed. In its terms, s 92 not making automatic forfeiture of restrained property after conviction of a serious offence dependent on prior notices having been given under s 92A.

48. In any event, Ms Memon had actually been given such notice.

49. Ms Memon had been convicted on 31 May 2024, that thus being her "conviction day". The Court’s restraining orders not having been revoked before the expiry of the relevant 6-month period which followed, on 30 November 2024 and neither an extension order nor an order under s 94 excluding any of the restrained properties from forfeiture having been made, all of the restrained properties were all forfeited that day. Including the two properties in which the children claimed only after forfeiture that they had an interest.

50. That did not depend on them having earlier been given a s 92A notice, the Act making other provision in respect of how they could pursue their claimed interest in those properties in that event, which they had not pursued.

51. The result was that the Court had no power to make the declarations sought by the other parties in respect of any of the restrained properties and that it ought to make the declarations which the Commissioner pursued.

What did the Court’s order restrain?

46. The September 2020 restraining orders were made ex parte under ss 18 and 19 of the Act, on evidence then led before Adams J. It dealt with of all of the property identified in the schedules to the orders, which was all suspected to be proceeds or instruments of Ms Memon’s relevant offending. Other ancillary orders were also then made.

47. Section 18 is concerned with proceeds of suspected serious offences and s 19 with proceeds of suspected terrorism, indictable, foreign indictable and indictable offences of Commonwealth concern. Both sections require that any order the Court makes provides that the restrained property not be disposed of or otherwise dealt with by any person, except in the manner and circumstances specified in the order. Adams J’s orders were couched in those terms.

48. Sections 18 and 19 required her Honour to make such orders, if the evidence established the existence of reasonable grounds to suspect that the property sought to be restrained was the proceeds or instrument of the specified offences. And that the authorised officer who made the supporting affidavit held the required suspicion stated in the affidavit, on reasonable grounds: ss 18(1) and 19(1). The reasons which her Honour gave explained why she had the required satisfaction.

49. In the case of the s 18 order, the property sought to be restrained had to satisfy the requirements of s 18(2). It required Adams J to be satisfied that there were reasonable grounds to suspect that the property was any one or more of the following:

“(a) all or specified property of the suspect;

(aa) all or specified bankruptcy property of the suspect;

(b) all property of the suspect other than specified property;

(ba) all bankruptcy property of the suspect other than specified bankruptcy property;

(c) specified property of another person (whether or not that other person's identity is known) that is subject to the effective control of the suspect;

(d) specified property of another person (whether or not that other person's identity is known) that is:

(i) in any case proceeds of the offence; or

(ii) if the offence to which the order relates is a * serious offence--an * instrument of the offence.”

50. In the case of the s 19 order, Adams J had to be satisfied of the matters specified in s 19(2), namely that there were reasonable grounds to suspect that the property was:

“(a) in any case-- proceeds of the offence; or

(b) if the offence to which the order relates is a serious offence--an * instrument of the offence.”

51. “Property” is defined in the Dictionary in s 338 to mean:

“real or personal property of every description, whether situated in Australia or elsewhere and whether tangible or intangible, and includes an interest in any such real or personal property.”

52. The concepts of “proceeds” and “instrument” are defined in s 329. “Proceeds” of an offence includes when property is wholly or partly derived or realised, whether directly or indirectly, from the commission of the offence: s 329(1). An “instrument” of an offence being when property is used, or intended to be used “in, or in connection with, the commission of an offence”: s 329(2).

53. Section 330, which is also expressed in very wide terms, specifies when property becomes, remains and ceases to be proceeds or an instrument of an offence. Section 330(1) providing that property becomes proceeds of an offence if:

“(a) the property is wholly or partly derived or realised from a disposal or other dealing with proceeds of the offence; or

(b) the property is wholly or partly acquired using proceeds of the offence; or

(c) an * encumbrance or a security on, or a liability incurred to acquire, retain, maintain or make * improvements to, the property is wholly or partly discharged using proceeds of the offence; or

(d) the costs of retaining, maintaining or making improvements to the property are wholly or partly met using proceeds of the offence; or

(e) the property is improved using proceeds of the offence;

including because of one or more previous applications of this section.”

54. Section 330(2) making similar provision in relation to when property becomes an instrument of an offence,

55. Adams J was satisfied that the Commissioner had established an evidentiary basis for the restraining orders which her Honour made. The result which the statutory scheme contemplated was that, unless an application was made before the automatic forfeiture provisions of the Act took effect, the restrained property would then be forfeited to the Commonwealth. That is what s 92 is concerned with.

56. On the evidence, which was not before Adams J, Ms Memon’s children always lived at the Elm Road property after their parents acquired it, apart from the period in which it had been renovated. They continued to live there after Ms Memon’s arrest, even after their father ceased living with them there.

57. Given the terms of ss 329 and 330, even if they have an interest in either property, if it was acquired even in part as the result of the proceeds of Ms Memon’s offending, or if the Elm Road renovations had been paid for using such proceeds, they would be proceeds of crime.

58. In 2020, Adams J was satisfied that the affidavit evidence she had to consider established the existence of reasonable grounds for the required suspicions under ss 18 and 19. Mr Mathews’ supporting affidavit then annexed two folders of documents which identified and described the properties sought to be restrained. It made no reference to the children having any interest in the disputed properties. Mr Mathews there also explained matters such as:

59. The investigation into Ms Memon’s activities, she then being suspected of having defrauded the NDIS scheme, which had resulted in excessive and fabricated claims being made, the proceeds of some of which she had shared with other offenders;

60. The resulting payments of over $7 million which had been made;

61. The sums transferred into Ms Memon’s bank accounts;

62. That her declared income did not accord with the funds she held in those accounts;

63. His suspicions about how mortgages on various properties had been paid by large lump sum payments; and

64. Who had assisted the police investigation into her activities.

65. On all the evidence, Adams J had to consider her Honour was satisfied that there were reasonable grounds to suspect that all of the properties sought to be restrained were the proceeds of an indictable offence, or in some cases, the instrument of a serious offence, and that Ms Memon had committed the alleged offences.

66. The result was that the 2020 orders were not confined, as they could have been, to any interest Ms Memon had in the restrained properties. That was understandably not sought, nor ordered, given that she alone was then their registered proprietor.

67. The orders Adams J made were varied by consent by Dhanji J in 2024, after Ms Memon was convicted, to include in the description of the restrained properties the rental income which was being generated by some of that property. But they were not varied to restrict the restraint on either Ms Memon’s interest in the Elm Road or Banksia Street properties, or to exclude the children’s claimed equitable interests in either of them.

68. To that point, the children’s claimed interest in those properties had not been raised with the Commissioner. Nor was an application subsequently made under s 29 of the Act, to exclude their interest in those properties from the restraining order, as it could have been.

69. In all of those circumstances, the case which Ms and Mr Mohamed advanced, that the restraining orders cannot be interpreted as restraining interests that were not those of Ms Memon and in particular, as restraining their interests in those properties, cannot be accepted.

70. The Act contemplating, as it does, that an interest in property which is restrained under either ss 18 or 19 may exist, which is not the proceeds or instrument of the relevant offending. In which event, avenues are provided by the Act for an application for such an interest in the restrained property to be excluded from the restraining order.

71. Such an application under s 29 depends on an evidentiary basis for the orders sought being established. It requiring the Court to be satisfied that one of the reasons specified in s 29(2) and (3) exists. They including, relevantly, in this case, that the claimed interest was not either the proceeds or instrument of unlawful activity, or of a serious or indictable offence.

72. In the case of a third party who has acquired an interest in property, it is only in the circumstances specified in s 330(4), that the Court may conclude that the property has ceased to be proceeds or instrument of the offending. That, too, must be established by evidence, if an application for exclusion from the restraining order is to succeed.

73. Whether, had a s 29 application been made by the children or Ms Memon before the property was forfeited, it would have succeeded, does not arise to be determined. No such application has ever been made.

The proper construction of ss 92 and 92A of the Proceeds of Crime Act

68. It is the construction and interaction of ss 92 and 92A of the Act which undoubtedly interferes fundamentally with ordinary property rights, and consequently has draconian consequences, which must be resolved. They provide:

“92 Forfeiting restrained property without a forfeiture order if a person has been convicted of a serious offence

(1) Property is forfeited to the Commonwealth at the end of the period applying under subsection (3) if:

(a) a person is convicted of a * serious offence; and

(b) either:

(i) at the end of that period, the property is covered by a * restraining order under section 17 or 18 against the person that relates to the offence; or

(ii) the property was covered by such a restraining order against the person, but the order was revoked under section 44 or the property was excluded from the order under that section; and

(c) the property is not subject to an order under section 94 excluding the property from forfeiture under this Part.

(2) It does not matter whether:

(a) the * restraining order was made before or after the person's conviction of the * serious offence; or

(b) immediately before forfeiture, the property is the * person's property or another person's property.

(3) The period at the end of which the property is forfeited is:

(a) the 6 month period starting on the * conviction day; or

(b) if an * extension order is in force at the end of that period--the extended period relating to that extension order.

(4) This section does not apply if the person is taken to have been convicted of the offence because the person * absconded in connection with the offence.

(5) A * restraining order in relation to a * related offence with which the person has been charged, or is proposed to be charged, is taken, for the purposes of this section, to be a restraining order in relation to the offence of which the person was convicted.

(6) If:

(a) under section 44, a * restraining order that covered particular property is revoked, or particular property is excluded from a restraining order; and

(b) the security referred to in paragraph 44(1)(e), or the undertaking referred to in paragraph 44(2)(e), in connection with the revocation or exclusion is still in force;

the property is taken, for the purposes of this section, to be covered by the restraining order.

92A Notice of date of forfeiture under this Part, etc.

(1) The * responsible authority for the * restraining order referred to in paragraph 92(1)(b) must, before property is forfeited under this Part, take reasonable steps to give any person who has or claims, or whom the authority reasonably believes may have, an * interest in the property a written notice stating:

(a) the date on which the property will be forfeited under this Part unless it is excluded from forfeiture; and

(b) the effect of section 93 (which deals with * extension orders); and

(c) that the person may be able to apply for an order under one of the following sections in relation to the property:

(i) section 29 (which deals with the exclusion of property from * restraining orders);

(ii) section 94 (which deals with the exclusion of property from forfeiture);

(iii) section 94A (which deals with compensation).

(2) However, the * responsible authority need not give a notice to a person under subsection (1) if the person has made:

(a) an application for an * extension order in relation to the property; and

(b) an application under section 30, 31 or 94 in relation to the property.”

69. These sections have to be understood in the context of the earlier mentioned definitions, as well as the s 338 definition of “interest” in relation to property or a thing, which is there defined to mean:

70. “(a) a legal or equitable estate or interest in the property or thing; or

71. (b) a right, power or privilege in connection with the property or thing.”

72. The purpose of s 92A was explained in the 2010 Explanatory Memorandum to the amending legislation, where it was relevantly stated:

“Currently under the Act, there is no requirement that a defendant or any other person be notified of the potential for automatic forfeiture. This creates a risk that a person may have their property forfeited to the Commonwealth without knowing the date that forfeiture is due to take place or having the opportunity to consider their rights in relation to the property. The purpose of this amendment is to ensure that a person who may have an interest in property will be given notice of the automatic forfeiture and their associated rights in relation to that property.”

71. The Explanatory Memorandum does not refer to the consequences of a failure to give a s 92A notice to a person who has an interest in restrained property. Nor does the Act itself.

72. It is s 95 which empowers the Court to declare that restrained property has been forfeited if the responsible authority, in this case, the Commissioner, applies and it is satisfied that that property has been forfeited under the Act. It is pertinent that this power is also not constrained by a s 92A notice having been given before the automatic forfeiture for which s 92 provides takes effect.

73. Contrary to the case advanced for Ms and Mr Mohamed, what I am satisfied must be accepted is that the statutory scheme contemplates that a person may have an interest in restrained property, but will not have been given a s 92A notice, before it is forfeited by operation of s 92.

74. This being why s 92A requires notice of the forfeiture date only to be given to those whom “the authority reasonably believes may have an interest in the property” which will be forfeited, unless further orders are made. And also why various avenues are provided which enable persons who have not received such a notice to pursue their claimed interests in the restrained property not only before, but also after automatic forfeiture takes effect.

75. Despite this, it is not an exclusion or transfer order which Ms Memon and her children pursue, but rather declaratory relief. They contending that the result of a failure to given them a s 92A notice is that no forfeiture of the properties in which they claim to have an interest can result under s 92.

76. I am satisfied that this also cannot be accepted.

77. Such a construction not according with what was decided in Studman v Commonwealth Director of Public Prosecutions [2007] NSWCA 285 and Halac v Commissioner of the Australian Federal Police [2016] NSWCA 146, considered in AD v Commissioner of the Australian Federal Police [2018] NSWCA 89. There, at [49], it was observed that:

“The effect of s 92 is that there is an automatic forfeiture of property the subject of a restraining order provided the conditions specified in the section are satisfied and the time specified for forfeiture has arrived.”.

78. Further, that “any apparent injustice to a person whose property has been forfeited is ameliorated by Divs 3 and 4 of Pt[s] 2-3, which provide for the recovery of forfeited property.”: at [55]. It is Div 3 which regulates how forfeited property may be recovered by persons who have an interest in it.

79. That does not accord with the construction of ss 92 and 92A for which Ms Mohamed, Mr Mohamed and Ms Memon contend.

The meaning of the term “reasonably believes”

80. The meaning of the term “reasonably believes” used in s 92A is also in issue. It is not defined and so its meaning must be gleaned from its statutory context.

81. No authority which supports the construction for which Ms and Mr Mohamed contended was pointed to. I accept that it is not one which sits comfortably in this statutory scheme.

82. Their case was that the term should be construed as requiring “an objective inquiry as to the belief which the responsible authority should have had in the circumstances, or the belief that may reasonably be attributed to it, including through constructive notice.” This being “particularly so in circumstances where the responsible authority is, as here, an authority or corporation which operates through its own officers and, as here, either made no, or insufficient inquiry, or is silent as to the formation of any particular belief.”

83. It was also argued that the Commissioner “cannot avoid the rights of interested parties by lack of enquiry or wilfully shutting their eyes to circumstances that would be investigated by a party in their circumstances having the knowledge obtained by reasonable enquiry and the ability to investigate and utilise the machinery of compulsory disclosure.”

84. That being supported by the Commissioner’s officers having made no or insufficient inquiry about the children’s interests and the evidence led being silent as to the formation of any particular belief about their claimed interest. The Commissioner not being able to avoid the rights of interested parties by lack of enquiry or wilfully shutting his eyes to circumstances that should be investigated, by reasonable enquiry and compulsory disclosure.

85. I am satisfied that despite the attraction of the case so put, it cannot be accepted, given all that this statutory scheme provides for.

86. That including the draconian consequences of orders made under ss 18 and 19 of the Act. They requiring that a restraining order must be made in circumstances where there are “reasonable grounds” to suspect that a person has committed a serious offence and automatic forfeiture, unless the Court makes a further order excluding specific property from the restraining order.

87. In Hyder v Commonwealth of Australia [2012] NSWCA 336, the obligations imposed by ss 18 and 19 were considered, as was the question of how the required suspicion might be formed and proven. It was there accepted that there must be some factual basis for either reasonable grounds to suspect or believe the specified matters, but that they may be based on hearsay material, as well as by materials which may be inadmissible in evidence: at [15].

88. It follows that in construing s 92A, account must also be taken of the fact that the service of the notice it provides for does not depend on the existence of a suspicion, but on the existence of a belief about a person’s interest in restrained property.

89. While both the suspicion ss 18 and 19 require and the belief that s 92A requires must have a reasonable basis, it must be accepted that these requirements necessarily contemplate the existence of two different things. The two words not being synonymous. If the requirements were intended to be exactly the same, the same term would undoubtedly have been used in all these provisions, but they were not.

90. I am also not persuaded that the s 92A requirement that before forfeiture, the responsible authority take reasonable steps to give notice to persons whom it reasonably believes may have an interest in the restrained property, can sensibly be construed as requiring service of a notice on those who the authority ought to have formed a belief about, in their particular circumstances.

91. That is not what s 92A provides for. The obligation to give a notice is rather imposed when the required reasonable belief has actually come into existence. That will undoubtedly depend on what becomes known to the authority before forfeiture, but still requires the formation of a belief.

92. Whether a reasonable belief has come into existence is a question of fact to be determined on the evidence, in the event of a dispute. It does not depend on whether it should have come into existence, or on a consideration of whether it would have, if other enquiries had been pursued.

93. It follows that the case advanced by the Commissioner as to the construction of this aspect of s 92A must be accepted. As must that in the case of the children, the required reasonable belief never came into existence, let alone before the forfeiture of the property in November 2024.

What did the evidence establish?

94. The evidence did establish the fact that the children were living with Ms Memon at the Elm Road property was known to the Commissioner at the time of Ms Memon’s arrest in 2020. It was also known that, subsequently, the children’s father returned to live with them there for a time, when their mother went into custody after her arrest.

95. That this should later have put the Commissioner on notice that the children had a legal right to occupy the Elm Road property, or had a beneficial interest in either property, does not follow.

96. Before forfeiture, Ms Memon had repeatedly claimed that it was she alone who had an interest in those properties. That was her affidavit evidence both before Johnson J and in the affidavit she was required to swear in accordance with s 39. She was their registered proprietor and when cross examined, claimed that she owed her husband over $350,000 in respect of the properties. But she did not claim that her children had any interest in them.

97. By way of contrast, in these proceedings, Mr Mohamed denied that Ms Memon owed him such an amount. His evidence being that they had agreed that she would hold the interest he had transferred to her in the two properties, for which he was paid $1 for each, for their children.

98. That was not, however, reflected in the written financial agreement which they had entered in 2018. On his evidence, this aspect of their agreement was oral and never documented, as was their arrangement in relation to the $100,000 amount she had transferred to him, on his evidence, to be used for the care and support of the children while she was in custody.

99. At the time their earlier financial arrangement had been agreed, they both had the assistance of lawyers. No evidence was called from any of them. On the evidence that Mr O’Connor gave, the inference which must be drawn is that their evidence would not have supported the case that the children and Ms Memon advanced: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8. There being no explanation for such evidence not having been called, despite attempts at having one of them provide a statement.

100. Nor was the claimed interest reflected in the will which Ms Memon executed after the financial agreement was entered. It willed her property to her children on them reaching the age of 18, but made no reference to her only having a half share in the two disputed properties, or no interest in them.

101. Mr Matthews’ 2020 affidavit established that at the time the application for a restraining order was made, the Commissioner was aware that Ms Memon was the sole registered proprietor of the properties the children dispute, Mr Mohamed’s interest in them having been transferred to her in 2018. That was reflected in title searches which did not disclose the existence of any other interest in the property.

102. Mr Matthews explained the basis of his suspicion that the funds which had been used to pay down the mortgages were the proceeds of crime, given payments made into Ms Memon’s Westpac account and payments made with funds derived from that account, to pay down the mortgages.

103. Ms Memon had sworn affidavits in October 2020 when pursuing orders before Johnson J where she explained the circumstances of her and her family. They also made no reference to her children having any interest in the disputed properties. Nor was this referred to in the cases which the parties then advanced.

104. Nor did the 12 October 2020 affidavit in which Ms Memon disclosed her interests in properties to the Court, refer to any interest which her children had in any of those properties.

105. Mr Mathews’ December 2024 affidavit explained that notices under s 92A were sent to Ms Memon’s solicitor and Westpac in July 2024. There is no suggestion that any were served on the children or Mr Mohamed.

106. Mr Bull’s affidavit explained how the proceedings before Jonhson J came to be pursued by Ms Memon in 2020, who was initially legally represented and finally self-represented after her solicitor ceased to act. With other solicitors having come on to the record and then ceasing to act in 2022 and 2024. It was in February 2024 that Mr Awada confirmed that he was acting. He later filed a notice of appearance and appeared and represented Ms Memon in various ways, including consenting to the orders made by Dhanji J, on Ms Memon’s instructions.

107. It was in December 2024 that the Commissioner communicated with Mr Awada, seeking Ms Memon’s consent to the orders that the Commissioner then proposed to pursue, given his view that the property the subject of the restraining orders had been forfeited to the Commonwealth, by operation of s 92. He later provided orders signed on her behalf.

108. It was in January 2025 that advice of a change of solicitor was given. It emerged that Mr Awada had earlier not successfully filed his notice of appearance with the Court and he then confirmed that he no longer acted. He sent the Court a notice of ceasing to act in February 2025.

109. Mr Bull also confirmed that the existence of a financial agreement entered by Ms Memon and Mr Mohamed under s 90C of the Family Law Act 1975 (Cth) came to light around April 2021 in the criminal proceedings. At a time when the property was already in the custody and control of the Official Trustee, in accordance with s 38 of the Proceeds of Crime Act.

110. It was in August 2024 that the Trustee communicated with the occupants of the Elm Road property, to which Mr Awada responded in September 2024, advising that two people, the children, were then residing there.

111. The children’s solicitor, Mr O’Connor, first communicated with the Commissioner in December 2024. In his affidavit, Mr O’Connor referred to steps taken to lead evidence from Mr Hasan, a former solicitor, for whom he had drafted an affidavit. In cross examination, it emerged that he had declined to sign the affidavit, despite which he was not subpoenaed.

112. In cross examination, Mr O’Connor agreed that, contrary to his evidence, in 2020, Ms Memon had been cross examined about the $1 payment for the transfer of her former husband’s interests in the properties. And that she had not disclosed or suggested that she held them on trust for her children. He also accepted that her evidence had not been accepted, without corroboration.

113. Mr Mohamed’s March 2025 affidavit claimed that after his parents separated in 2018, his mother had told him that his father had transferred his interests in the Elm Road and Banksia Street properties to her, for their children. It was in December 2024 that they received the Trustee’s notice to vacate.

114. Ms Mohamed’s affidavit evidence was to similar effect, but she claimed to have a more detailed understanding ([12]-[14]):

“My mother was quite open with me and would discuss family matters with me. I believe that I first recall discussing the situation with the Elm Road property several months after my parents separated. I understood there was a prospect of a religious divorce and a possible application to the Family Law Court for a property settlement.

I understand that my parents entered an arrangement to transfer to my mother, my father's interest in the two properties at Elm Road and Banksia Street, so she would hold both her and my father's interest in the properties for my brother and me to share. I understood that my mother was to have had the right to reside at the Elm Road property but that my brother and I were to have the properties when we grew older. I was not aware precisely of the terms of this arrangement. I recall having a conversation with my mother in late 2018 when she said words to the effect of:

"When you and your brother grow up, you will have both the properties."

Around the time of the separation, my mother would leave the home and have discussions with my father. I was not party to these conversations, but often my mother would come home and recount the conversations to me.

I have a specific recollection of her coming home after one of these meetings and informing me that my father was transferring to my mother, his portion of the properties and that they would go to me and Sufian.”

115. Ms Mohamed confirmed having received the 9 December 2024 advice that the property had been forfeited and requiring the occupants to vacate.

116. Their father’s evidence was to a somewhat different effect. He referred in his March 2025 affidavit to his intention, when finalising his financial affairs with Ms Memon in 2018, that she was to hold his share in the properties for the benefit of their children. But that was not reflected in the financial agreement which they then entered. Nor is there any document in evidence which accords with them then having then having had such an intention, or instructing their legal advisers accordingly.

There is no evidentiary basis for the claimed belief

117. On all of this evidence, I am satisfied that an evidentiary basis for the claim that the belief required by s 92A in respect of the children having an interest in the property was or ought to have been formed by the Commissioner before the forfeiture took effect, was not established.

118. It follows that, even if the construction for which Ms and Mr Mohamed contended could have been accepted, their case on the evidence could not have been.

119. That the required belief was not formed was understandable, given what was known to the Commissioner before the expiry of the 6-month period after Ms Memon’s conviction in May 2024. Including, as the result of evidence which she had given in these proceedings in 2020, about the nature of her interest in the properties.

120. Even now, the existence of the claimed interest is in issue, despite the evidence which the children have led about how they came to believe they had an interest in the property as the result of the steps taken by their parents in 2018. Their claimed interest did not necessarily accord with the financial agreement which their parents entered, nor with their mother’s will.

121. It was their father’s evidence about what he and Ms Memon had agreed orally on which their claims depend, but even his evidence did not entirely support theirs. Nor did the evidence that Ms Memon has given.

122. All of the claimed circumstances were certainly not known to the Commissioner before the forfeiture took effect in November 2024. And even knowing of them, the Commissioner still has not accepted that they gave rise to the claimed interest in the restrained properties.

123. In the result I am unable to accept either that the required reasonable belief that the children had an interest in the restrained properties came into existence, or that it ought to have, before the property was forfeited. The result is that it cannot be concluded that Ms and Mr Mohamed ought to have been given a s 92A notice, as they claimed.

Does s 92A require personal service of a notice?

124. I am also satisfied that Ms Memon’s case that s 92A imposes an obligation for the required notice to be served personally, cannot be accepted.

125. Not only is that not expressly required, the inference that personal service was required would be contrary to the requirement which is actually imposed by s 92A. Namely, to “take reasonable steps” to give the required notice.

126. What is reasonable will depend on the particular circumstances. It undoubtedly includes personal service, but other forms of service, such as by mail or electronic communication when personal service is not possible, or even difficult, may also satisfy the requirement to take reasonable steps to serve a notice.

127. There was no issue that Ms Memon could have been personally served in custody.

128. But still I am satisfied that when a person is known to be legally represented, service on a solicitor who accepts service on his or her client’s behalf, will also satisfy the obligation to take reasonable steps to serve a s 92A notice. There being no just reason to doubt that a legal representative who has the obligations which the Legal Profession Uniform La**w imposes, will misrepresent their authority to accept such service.

Notice was given to Ms Memon

129. In this case the s 92A notice was served on Ms Memon’s solicitor who later appeared in these proceedings to consent to the variation to the restraining orders which Dhanji J ordered, before the forfeiture took effect. No evidence was called from that solicitor and Ms Memon did not actually deny having become aware of the s 92A notice.

130. In those circumstances it cannot sensibly be concluded that reasonable steps were not taken to serve Ms Memon with that notice. This aspect of her case thus also cannot succeed.

The claimed invalidity of forfeiture under s 92, when a s 92A notice has not been given

131. I am also satisfied that it cannot be concluded that the result of either the s 92A notice which was given, or the failure to give such a notice to the children before forfeiture, resulted in the invalidity of the forfeiture of any of the restrained properties.

132. The result is that the declaratory relief which the Commissioner resists, cannot be granted and if Ms Mohammed, Mr Mohamed or Ms Memon wish to pursue any claimed interest in the now forfeited properties, that must be pursued by application made under other provisions of the statutory scheme.

133. In resolving what was in issue about automatic forfeiture under the Act in the event that a s 92A notice has not been given to a person who has or claims to have an interest in restrained property, it must be born in mind that in some cases property can be forfeited even before automatic forfeiture occurs.

134. Applications for such forfeiture orders must be made before the end of 6 months after the person’s conviction of the relevant offences: s 59. That being the time when automatic forfeiture occurs: s 92.

135. Property specified in a forfeiture order vests absolutely in the Commonwealth at the time it is made: s 66. Except in the case of real property, which does not vest until the applicable registration requirements have been complied with, until such time the Commonwealth only having an equitable interest in the property: s 67.

136. Notice of a s 59 forfeiture application must be given not only to the convicted person, but also to any person who claims an interest or whom the authority again, reasonably believes, may have an interest in the property: s 61. Those who claim an interest may appear and adduce evidence at the hearing of the application: s 64.

137. Section 54 creates a presumption that property found in a person's possession at the time of, or immediately after, the person committed the relevant offence was used in, or in connection with, the commission of the offence.

138. But forfeiture orders can even be made in respect of property in which other people are known to have an interest, in circumstances specified in s 55. In such a case, ancillary orders for the protection of such persons, including by payment of an amount for the value of such person’s interest in the property, can also be made: s 55(2).

139. If a person has an interest in property which is not known, either before or after a forfeiture order is made, the person may apply for an order under s 57 in respect of their interest: s 57A. Section 57 empowering the Court to exclude or transfer an interest in restrained property to the applicant.

140. It is in Pts 2-3 of the Act that automatic forfeiture after conviction is provided for. There, provision is also made for compensation orders and orders for recovery of forfeited property by transfer or buy back, even after it is automatically forfeited. The Act there also recognising that forfeiture orders may be made in respect of property in which persons other than those who were given a s 92A notice, may have an interest. This Part includes:

141. Sections 96 and 97 which respectively deal generally with when property is forfeited, with an exception in the case of “registrable property”, defined in s 338 to mean “property title to which is passed by registration on a register kept pursuant to a provision of any law of the Commonwealth or of a State or Territory”. There is no issue that real property falls within that definition;

142. Section 94A, which provides for compensation orders to be made when the court is satisfied that an applicant has an interest in restrained property that was “not derived or realised, directly or indirectly, from the commission of any offence” and not from an “instrument of any offence”. It expressly contemplating that such a person may not have been given a s 92A notice, by restricting application to those who did receive such a notice, to making an application in the limited circumstances specified in s 94A(4) and (5). Those who did not receive a s 92A notice, not being so limited;

143. Sections 102 and 104, which enable the Court to deal with restrained property after forfeiture by ordering payment of an amount equal to its value, when satisfied that the applicant’s interest existed before forfeiture, was not the proceeds of unlawful activity nor an instrument of unlawful activity and was lawfully acquired. Section 104 also contemplating that an applicant may not have received a s 92A notice: s 104(2); and

144. Sections 103, 104A and 105, which after forfeiture permit the Court to make a declaration that the forfeiture ceases to operate in respect of the applicant’s interest, if various requirements as to that interest are met. That resulting in s 92 ceasing to apply to the person’s interest in the forfeited property, which must then be transferred to them. Section 104A(2) also contemplating that an applicant may not have received a s 92A notice.

145. It follows that various provisions of the statutory scheme expressly contemplate that the failure to give a person with an interest in restrained property a s 92A notice, does not result in the invalidity of the forfeiture which takes effect automatically, in accordance with s 92.

146. This accords with its construction in binding authorities of the High Court and of the Court of Appeal. In Commissioner of the Australian Federal Police v Hart; Commonwealth of Australia v Yak 3 Investments Pty Ltd; Commonwealth of Australia v Flying Fighters Pty Ltd [2018] HCA 1, it was observed at [69] that after conviction of a serious offence, any property the subject of a restraining order under the Proceeds of Crime Act that relates to that offence is automatically forfeited to the Commonwealth. That occurring 6 months after the date of the conviction, or at the end of an extended period specified in an extension order.

147. It must be accepted that the concept of such “automatic” forfeiture does not sit comfortably with a construction of s 92 which renders the forfeiture for which it provides invalid, if a s 92A notice was not served on a person who later claims to have an interest in the property.

148. In AD v Commissioner of the Australian Federal Police [2018] NSWCA 89, an extension order had been made under s 93 and the appellant had sought an exclusion order under s 94, which cannot be made after the property has already been forfeited: s 92(4). The operation of ss 92, 93 and 94 were there considered. It was held:

“49. Section 92 provides for the forfeiture of property where a person has been convicted of a serious offence and a restraining order has been made under either ss 17 or 18. Both of those conditions were satisfied in this case. Section 92(3) specifies the period at the end of which the property is forfeited, namely, six months starting on the conviction day or any extended period specified in an extension order. The effect of s 92 is that there is an automatic forfeiture of property the subject of a restraining order provided the conditions specified in the section are satisfied and the time specified for forfeiture has arrived.

50. Section 93 provides for the making of an extension order beyond the period of six months starting on the conviction day. Three conditions must be satisfied before the court may make an extension order: the application for extension must be made within six months after the start of the conviction day; the applicant must have applied for an order to exclude the property from the restraining order under ss 30 or 31 or from forfeiture under s 94; and the court must be satisfied that the application to exclude property was made without undue delay and has been followed up diligently. Importantly, s 93(1) provides for what was described in submissions as a “hard backstop” period, namely, that the extended period must end no later than 15 months from the start of the conviction day.

51. Section 94 provides that a court making a restraining order under s 92(1)(b) must make an order excluding particular property from forfeiture if satisfied of a number of conditions, including, relevantly, that the applicant has an interest in property covered by the restraining order and has been convicted of a serious offence to which the restraining order relates. Of particular importance is s 94(2), which provides that an order under the section cannot be made if the property has already been forfeited under the provisions of Pt 2-3.”

145. No reference was made in these authorities to s 92A, even though it came into operation in 2010. It requires the taking of reasonable steps to give the specified notice to a person who has or claims or whom the authority reasonably believes may have, an interest in the property. But neither s 92 nor s 92A expressly provide for the automatic forfeiture for which s 92 provides to be avoided or rendered invalid, in the event that the responsible authority has not given a s 92A notice to a person who has or claims to have an interest in the property.

146. These are powerful reasons for rejecting the construction for which Ms and Mr Mohamed and Ms Memon contended.

147. Nor do the matters on which they relied to advance their construction establish a basis on which it can justly be accepted, given the principles of statutory construction which must be applied.

148. Ms and Mr Mohamed’s case in written submissions was pressed on the basis that:

“The Interested Parties plainly had a claimable interest arising from the family arrangement to permit them to reside in the property and/or to take a further interest in the property, whether contingent or not, whether equitable or not, including under the Binding Financial Agreement. The reference in s 92A(1) to "any person who has, or claims ... an interest in the property", is not to be taken as excluding person who have not at some earlier point in time asserted a claim in terms. They embrace those with an interest who, when aware of the occasion to propound that interest, would be willing to do so. Had they been given notice, they would have claimed their interest in the property.”

149. It was also urged that they should not be treated as though they had not claimed such an interest, because they were not given a s 92A notice and/or were under a legal disability.

150. I am still satisfied that the case they advanced does not provide a proper basis for the construction urged.

151. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, non-compliance with conditions which regulate the exercise of statutory power was considered. There it was explained that an act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect and that (at [91]):

“Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.

152. It was also observed at [92] that “[t]raditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority.” But at [93] that “[a] better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales.”

153. Further at [93], that “In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".”

154. I am satisfied that the claimed purpose, that being that non-compliance with s 92A will result in the automatic forfeiture of the retained property under s 92 either not occurring or being invalid, cannot be found in this Act. That being contrary to the other provisions which I have explained and how they have been construed.

155. The required purpose having to be gleaned from the language of the Proceeds of Crime Act, its subject matter, objects and the consequences of the claimed result of failing to give a notice to someone who the responsible authority should have come to believe had an interest in the property, claimed to be the invalidity of the automatic forfeiture of restrained property which s 92 provides for.

156. That claimed purpose and the result of the responsible authority not coming to hold the required belief about a claimed interest, claimed to be that the forfeiture of that person’s interest in the property did not occur automatically or was invalid, I am satisfied is not to be found in the statutory provisions, as they must be.

157. It also has to be accepted that such a purpose does not sit comfortably within the statutory scheme, given all that it expressly permits, including the pursuit of a claimed interest, even after forfeiture.

158. It is s 91 which provides a simplified outline of Part 2-3—Forfeiture on Conviction of a Serious Offence. It is relevant that it provides:

“Simplified outline of this Part

If a person is convicted of a serious offence, property that is subject to a restraining order relating to the offence is forfeited to the Commonwealth unless the property is excluded from forfeiture.

There are cases in which compensation is payable by the Commonwealth.

There are cases in which forfeited property can be recovered from the Commonwealth.”

159. This reflects the Principal Objects of the Act specified in s 5. They include, pertinently, not only to deprive persons of the proceeds of offences, the instruments of offences, and benefits derived from offences, but also to deprive them of unexplained wealth that they cannot establish were not derived or realised, directly or indirectly, from certain offences; to punish and deter persons from breaching Commonwealth laws; to prevent reinvestment of proceeds of crime in further criminal activities; and to undermine the profitability of criminal enterprises.

160. Consistent with this, what s 92A requires is that notice be given of the date on which forfeiture will occur automatically, unless the property is excluded from forfeiture. Those who have an interest in the property being entitled to pursue exclusion of their interests beforehand, or within any extended time ordered under s 93. If exclusion is not sought or obtained within that time, automatic forfeiture occurs. Even then, appropriate orders in respect of such an interest, if established, can still be made by the Court afterwards.

161. That neither s 92 nor 92A expressly provide that there will be no automatic forfeiture in the event that a s 92A notice is not given to a person who has an interest in restrained property, reflects that the statutory scheme recognises that a person’s interest in restrained property may not be known or pursued before forfeiture.

162. In the case of equitable interests in real property, for example, because they are not disclosed either on the register, or by anything else of which the relevant authority becomes aware of, before the restrained property is automatically forfeited.

163. Parts 2-3, as I have explained, thus makes provision that until the authority is registered as the owner of property, it has only an equitable interest in it: s 96. It being the Official Trustee who is empowered to take the required steps to have the Commonwealth registered as the owner: s 96(1)(d).

164. Even after such registration, if a person had an interest in the property before forfeiture, which was neither proceeds of unlawful activity nor an instrument of such activity, but was lawfully acquired, on application, the Court may still order the Commonwealth to transfer the forfeited property to that person, or to pay him or her an amount equivalent to its declared value: s 102. Orders may also be made in respect of such a person’s interest in the property under s 105, which provides for orders for the buyback of forfeited property.

165. It is in that context that the question of whether it is a purpose of the Act that a person’s interest in restrained property will not be forfeited if the authority should have formed a belief that they had an interest in the property and given them a s 92A notice, before automatic forfeiture occurred, arises to be considered.

166. I am not persuaded that such a purpose can be found in the Act.

167. The result is that the construction of ss 92 and 92A for which Ms and Mr Mohamed and Ms Memon contended cannot be accepted.

168. As was concluded in AD, automatic forfeiture occurs six months after the relevant conviction day, or any extended period specified in an extension order. That is irrespective of whether or not a person who has an interest in the property was given a s 92A notice before that forfeiture takes effect.

Did the variation of the restraining orders require the giving of a further s 92A notice?

169. I am satisfied that it did not.

170. When the s 92A notice was given on 11 July 2024, Ms Memon was in custody serving her sentence. Service could have been affected by sending it to where she was detained, in order that it could have been provided to her by custodial authorities. It was instead served on her solicitor, with the result that the notice came to her attention and the restraining orders were later varied by consent.

171. No further s 92A notice was then served.

172. I am satisfied that this was not required by s 92A, it requiring that notice be given of the date on which the restrained property will be forfeited, unless it is excluded from forfeiture. The variation of the restraining orders agreed in August 2024 had no effect on the forfeiture date. It being calculated by reference to the date of Ms Memon’s convictions, not the date on which the restraining orders were earlier made, or the date of their later variation: s 92(1).

173. Section 33 had required the Commissioner to give Ms Memon written notice of the restraining order. Section 37 made it an offence to dispose of or deal with property known to be covered by a restraining order, if the disposition would contravene the order.

174. Section 39 provided for the making of ancillary orders. They include orders which vary specified aspects of a restraining order: s 39(1)(a). Such an order can only be made on the application of the responsible authority, the owner of the property, the Official Trustee who was ordered to take custody and control of the property, or any other person given leave by the Court: s 39(2).

175. The variation orders were made by Dhanji J by consent at a hearing at which Ms Memon was legally represented. As a result, she did not require and was not given further notice of the orders so made. Nor did s 92A require the giving of any further notice as to the date on which the restrained property would be forfeited, that being unaffected by the variation of the restraining orders.

176. It follows that this aspect of the case Ms Memon advanced thus also cannot be accepted.

177. The result is that the orders which the Commissioner sought must be made.

Costs

178. The usual order under the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event: r 42. In this case, that is an order that Ms Memon and Ms Mohamed bear the Commissioner’s costs, as agreed or assessed, Ms Mohamed pursuing the proceedings on her own behalf and as her brother’s tutor.

179. Unless the parties approach within 21 days with short written submissions, that will be the Court’s orders.

Declarations

180. For the reasons given, I now order that the relief which Ms Memon, Ms Mohamed and Mr Mohamed pursue be refused and the declarations the Commissioner seeks made, the requirements of s 95 having been satisfied.

181. Accordingly, I declare that:

182. Pursuant to section 95 of the Proceeds of Crime Act 2002 (Cth) (Act), the Court declares that the property described in Schedule One to these orders was forfeited to the Commonwealth on 1 December 2024 pursuant to section 92 of the Act.

183. Pursuant to section 95 of the Act, the Court declares that the property described in Schedule Two to these orders was forfeited to the Commonwealth on 1 December 2024 pursuant to section 92 of the Act.

184. Pursuant to section 95 of the Act, the Court declares that the property described in Schedule Three to these orders was forfeited to the Commonwealth on 1 December 2024 pursuant to section 92 of the Act.

185. Pursuant to section 95 of the Act, the Court declares that the property described in Schedule Four to these orders was forfeited to the Commonwealth on 1 December 2024 pursuant to section 92 of the Act.

186. Pursuant to section 95 of the Act, the Court declares that the property described in Schedule Five to these orders was forfeited to the Commonwealth on 1 December 2024 pursuant to section 92 of the Act.

187. Unless the parties approach within 21 days with short written submissions, Ms Memon and Ms Mohamed are to bear the Commissioner's costs as agreed or assessed.

SCHEDULE ONE

Real property at xxx Elm Road, Auburn NSW 2144, being Lot xxx in Deposited Plan xxx, including any rental income derived from that property.

SCHEDULE TWO

Real property at xxx Banksia Street, South Granville NSW 2142, being Lot xxx in Deposited Plan xxx, including any rental income derived from that property.

SCHEDULE THREE

Real property at xxx Athel Street, North St Marys NSW 2760, being Lot xxx in Deposited Plan xxx, including any rental income derived from that property.

SCHEDULE FOUR

Real property at xxx Banksia Street, South Granville NSW 2142, being Lot xxx in Deposited Plan xxx, including any rental income derived from that property.

SCHEDULE FIVE

Real property at xxx Wellington Road, South Granville NSW 2142, being Lot xxx in Strata Plan xxx, including any rental income derived from that property.

**********

Amendments

09 October 2025

Corrected Counsel's names. Corrected date in paragraph [6]. Deleted sentence in paragraph [7]. Refered to correct section in paragraph [18(2)(c)] and [18(2)(d)].