DIRECTOR OF PUBLIC PROSECUTIONS OF WESTERN AUSTRALIA against PAOLO MUSARRI, also known as PAUL MUSARRI

DIRECTOR OF PUBLIC PROSECUTIONS OF WESTERN AUSTRALIA against MALAGA HOLDINGS PTY LTD

BETWEEN : WESTPAC BANKING CORPORATION (ABN 33 007 457 141)

DIRECTOR OF PUBLIC PROSECUTIONS OF WESTERN AUSTRALIA

Criminal property confiscation - Application to vary previous order - Matters bearing upon the exercise of discretionary power - Turns on own facts

Criminal Property Confiscation Act 2000, s 49(2), s 91

Misuse of Drugs Act 1981

Third-named Applicant : State Director of Public Prosecutions

Lyford & Glenisia Investments Pty Ltd v Commonwealth Bank of Australia [1995] FCA 1261; (1995) 130 ALR 267

1 HASLUCK J: I have before me four applications brought pursuant to provisions of the Criminal Property Confiscation Act 2000. The applications relate to the making of a freezing order by Steytler J on 22 January 2001 and the desire of the parties before me to vary and ameliorate the effect of that order.

2 I pause to note that the order itself was the subject of a variation order made by Roberts-Smith J on 23 February 2001. I will return to the form of the Steytler J order and the Roberts-Smith J variation order in a moment.

3 It will be convenient to set the matter in context by describing the situation before me in overview before I turn to the various applications. With that thought in mind, I turn to the outline of submissions filed by one of the applicants, Paul Musarri, being submissions filed on his own behalf and on behalf of his company, Malaga Holdings Pty Ltd.

4 It appears from those submissions, and also from the affidavit of Mr Musarri sworn 6 September 2001, that Mr Musarri is a businessman and his company, Malaga Holdings Pty Ltd, was conducting a business known as Northline Radiators. It seems that Mr Musarri was arrested in August 2000 and charged with indictable offences under the Misuse of Drugs Act 1981. He is the sole director and shareholder of Malaga Holdings Pty Ltd, which henceforth I will refer to simply as Malaga.

5 Mr Musarri has been remanded in custody in Hakea Prison since August 2000. Three applications for bail - one before the Court of Petty Sessions and two before single Judges of the Supreme Court of Western Australia - have been denied.

6 The charges are the subject of three separate indictments preferred by the Director of Public Prosecutions. Mr Musarri has denied involvement in any of the charges the subject of these indictments. He is vigorously defending all of them.

7 I understand that the first indictment against Mr Musarri is due to be heard and determined over an 11 day period commencing 6 May 2002. It is the only indictment to have received a hearing date. It is likely that all charges will not be concluded before the District Court until late 2002. Mr Musarri says in his submissions that if there is an appeal against any verdict, the appeal process could extend well into 2003.

8 Mr Musarri and Malaga are variously the owners of freehold properties which are subject to mortgages in favour of Citibank and Westpac Banking Corporation Ltd. I will come to the details of these properties in a moment.

9 It seems that in late 2000 the DPP brought proceedings to freeze the assets of Mr Musarri and Malaga under the Proceeds of Crime Compensation Act 1988. Counsel notes in his submission that this Act was repealed and replaced by the Criminal Property Confiscation Act 2000 which came into effect on 1 January 2001. It is that latter act that I mentioned a moment ago and pursuant to which the freezing order I have described was made. Henceforth if I refer to the Act, it is to the Criminal Property Confiscation Act that I am referring.

10 Pursuant to the Act, the DPP obtained from the Supreme Court an order refreezing all of the assets and undertakings of Mr Musarri and Malaga. The DPP's application to obtain the freezing order was directly connected with the charges.

11 It is said in the submissions, and affirmed by counsel for Mr Musarri, that because of his incarceration he has not been able to generate an income from previous business activities conducted from the premises of Malaga Holdings to service the Westpac mortgage. Consequently the Westpac mortgage has not been duly serviced since sometime after Mr Musarri's arrest.

12 It is said further, on Mr Musarri's behalf, that there is adequate equity in all of the properties secured by the mortgages. It is said that an obvious incentive for the banks to bring their s 91 applications is to force a mortgagee sale of the properties before the confiscation results in the State of Western Australia obtaining an unencumbered freehold estate in those properties pursuant to s 9(2)(a) of the Act.

13 Reference is made in the submissions to the question of whether there have been defaults concerning the Citibank mortgages. I will come to that matter in more detail in a moment but, again, for the purposes of the overview I note that in the submissions Mr Musarri concedes that Citibank has alleged non-monetary default in that its securities are jeopardised by confiscation proceedings.

14 It is said in the submissions that the applications by both banks under s 91 must have been reasonably foreseeable by the DPP and thus the State of Western Australia because a statutory declaration made by Mr Musarri under s 37 of the new Act advising all persons who had an interest in the properties was provided to the Police Assets Division. In consequence Police Assets Division were obliged to and did serve on both Citibank and Westpac copies of the freezing order.

15 It is said in the written submissions on behalf of Mr Musarri that Mr Musarri and Malaga concede that the definition of owner in the glossary to the Act gives the banks standing to apply under s 91. Equally he and Malaga have the same standing by the same definition. There is nothing in the Act which precludes an accused person who is affected by a freezing notice or order under the new Act from utilising that section. It is said further that neither s 91 nor any other provision of the new Act dictates the relative priority of rival applicants.

16 I now turn to the terms of the freezing order made by Steytler J on 22 January 2001. I will not traverse the full terms of that order. It is sufficient for present purposes to note that the order has the effect of freezing all property in Western Australia owned or effectively controlled by Mr Musarri and by Malaga. The order was made pursuant to s 43(1)(a), s 43(3)(c) and s 43(8) of the Act.

17 I need not dwell upon the effect of those provisions. It is sufficient to note that the provisions referred to occur in the context of Pt IV Div 3 of the Act concerning freezing orders for confiscable property. In s 41 provision is made for the DPP to apply to the Court for a freezing order concerning property and in s 43 one finds the basis upon which a freezing order may be made. Those provisions include the provisions relied upon in the present case. I note in passing, s 43(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."

18 As I return to the order made by his Honour Steytler J on 22 January 2001, it is important for present purposes to concentrate upon those passages in the order in which greater particularity is given to the real property of Mr Musarri and of Malaga. One finds in par 1(g) reference to real property of which Mr Musarri is the registered proprietor. The full title particulars are given but it is sufficient to note that of the two properties mentioned there, one includes the property known as 128 Balga Avenue and I understand from the materials before me that that is a property subject to a mortgage interest of Westpac.

19 As one continues to have regard to the terms of the order, looking at real property of which the company Malaga is the registered proprietor, there is quite an extensive list, including various properties at Port Hedland. For present purposes it is sufficient to note that the properties listed include 12 Commerce Street, Malaga. That is a property affected by a mortgage to Citibank.

20 The list also includes the property known as unit 3, 20 Escot Road, Innaloo. That is a property affected by a mortgage to Citibank. The list includes the property known as 38 to 40 Railway Parade, Bayswater. That is a property affected by a mortgage to Citibank. I pause to say that it is from that property, as I read the evidentiary materials, that Northline Radiators, being the business conducted by Malaga, was operating its business.

21 There is also a property at 32 Queens Road, Guildford. That property is affected by a mortgage to Westpac. There is a property at 10 Old Perth Road, Bassendean. That is a property affected by a mortgage to Citibank. The terms of the order go on to refer to certain shares held by Malaga. I will put that aspect of the matter to one side.

22 The order also contains reference to the grounds on which the order was made and, again, those grounds are clearly referable to the terms of s 43 of the Act that I mentioned a moment ago. It is apparent that the grounds were:

"An order for examination had been made in relation to the property except in relation to property that Musarri and the company has at any time given away and property acquired after this order is made. Further, an application is likely to be made against Musarri for an unexplained wealth declaration and a criminal benefits declaration within 21 days of the freezing order."

"An application is likely to be made against the company for an unexplained wealth declaration within 21 days of the freezing order. Further, there are reasonable grounds to suspect that the property is crime-derived.

24 Provision was made in the order for there to be leave for the business Northline Radiation to be managed subject to various conditions. I pause to say that it appears to have been common ground before me that as a consequence of the arrest and incarceration of Mr Musarri, it has proved not possible to maintain the conduct of the business.

25 I digress briefly at this point to refer to the affidavit of Mr Musarri sworn 6 September 2001 as it has some bearing on that aspect of the matter. It is said in par 7 of the affidavit that being incarcerated has meant that he has not been able to conduct his business, Malaga Radiators, notwithstanding the modification of the freezing order to allow the business to be operated as a going concern.

26 Mr Musarri says that in the first month following the freeze he had his foreman Allen Barnett attempt to run the business for him, but that has not been successful due to his other commitments. Income from that business was previously used to supplement other moneys being paid towards the Westpac mortgages.

27 As I noted earlier, the order made by Steytler J was varied. It appears from the terms of the variation order made by his Honour Roberts-Smith J on 23 February 2001, that provision is made for Citibank to be at liberty to deduct certain rental moneys arising from the Port Hedland properties to satisfy the obligations of Malaga to make periodical payments.

28 It emerges, then, as I continue to look at the matter in overview that, broadly described, it has become apparent as a matter of reality both to Mr Musarri and to his company Malaga that in order to organise his affairs both with a view to discharging his liabilities and to attend to the need of arranging for his defence that he must realise upon certain of his assets. It is against that background that Mr Musarri and the company Malaga have made an application to ameliorate the effect of the order previously made.

29 On the other side of the coin, it is recognised by the two mortgagees, Westpac and Citibank, that there is a need on their part to pursue the remedies under their mortgage instruments to which they claim to be entitled. The stance of the Director of Public Prosecutions as the original applicant for the order made by Steytler J is to indicate broad support for the applications made by the two banks but to oppose the application for relief or amelioration sought by Mr Musarri and his company Malaga.

30 This brings me now to the basis upon which the present applications are essentially made. In that respect I turn to s 91 of the Criminal Property Confiscation Act 2000. It is said in s 91(1):

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

31 By s 91(2) of that provision it is said:

"On hearing an application the Court may, if it thinks fit, by order appoint a person to control and manage the property while the freezing notice or freezing order is in force or to sell or destroy the property."

32 As I look at the statutory provisions, I also take account of the fact that by s 49 of the Act concerning the duration of freezing orders, a facility is allowed to the applicant for the order to intervene in a way which will have an ameliorating effect.

33 Thus in s 49(2)(d) it is provided that the freezing order stops being in force as soon as one of certain specified events happens, including in s 49(2)(d) "the freezing order is set aside at the request of the applicant for the freezing order or in proceedings on an objection". I note that the application for relief or for an amelioration of the freezing order made by the DPP is advanced pursuant to that section.

34 I note in passing that in the course of argument questions arose as to whether there was also an avenue to ameliorate the effect of the order to be found in s 83 and s 84 of the Act. This was a matter touched on by counsel for Westpac. Section 83 concerns the release of crime derived property; s 84 concerns the setting aside of orders of other frozen property.

35 I pause there to say, without purporting to decide the extent of the powers in question, that I see no need to explain the exact application of those provisions to the circumstances of the present case. This is because I have come to the conclusion that there is power to act in the circumstances of the present matter pursuant to s 91 of the Act, being the provision that I mentioned a moment ago.

36 Against that general background it will be useful if I now turn to the application made by Citibank, which company was represented by Mr Corboy at this hearing. The application for relief is reflected in a chamber summons dated 10 July 2001 and that application is supported by a number of affidavits. I will not traverse the full particularity of those affidavits, but in particular I take account of the affidavit of Maxine Blunt sworn 6 July 2001. In that and in the other affidavits reference is made to the basis upon which it is asserted that the mortgagor is in default in a manner which permits the bank to proceed.

37 In the course of developing submissions in support of the application Mr Corboy emphasised that there was a concession on the papers before me, namely, that within the special meaning attributed to the relevant terms in the Act both Citibank and Westpac could be described as owners in that they had a legal or equitable interest in the properties affected by their security. They of course are the properties I described a moment ago in the course of my overview.

38 Counsel for Citibank drew out of the evidentiary materials particulars of the manner in which the defaults are said to have occurred. I accept that his description of those defaults is an accurate summation. In doing so I have taken account not only of the evidentiary materials, but also of the fact that there was no serious challenge to the Citibank view advanced by counsel for Mr Musarri and Malaga at the hearing before me.

39 Indeed, as I have already indicated, there was a broad recognition at this hearing that it was necessary and desirable that appropriate orders were made to ameliorate the effect of the freezing order. The real matter in controversy was the question of who should be empowered to effect the sale and the manner in which the distribution of the proceeds of sale should be effected.

40 It is therefore sufficient to say in general terms that the defaults under the Citibank mortgage were said to be not only in respect of outstanding monetary liabilities, but also because the recent events the subject of my overview description have had a material adverse effect upon both the value of the land in question (in that the land has been affected by the freezing order) and upon the ability of the mortgagor to repay. It follows from what I have said that Mr Musarri and Malaga are indeed affected by the events and I have already noted that the radiator repair business has not been able to continue.

41 Mr Corboy referred to the fact that the various provisions of the mortgage documents in these circumstances permit and allow for the forming of an opinion which can then be used to constitute and justify the issue of a default notice. I accept that the necessary opinion has been formed, the necessary default notice has been properly issued, and thus there is a foundation of default which permits this mortgagee to exercise its powers.

42 It is against that background where there is both a desire, it seems, upon the part of the mortgagor to realise his assets, and a desire upon the part of the mortgagee to enforce what the mortgagee sees as its legitimate security, that the question of the discretion allowed to the court pursuant to s 91 falls to be considered.

43 As I review the materials and arguments that have been put before me, various matters bear upon the exercise of that discretion. I take account of the fact, as I have noted, that counsel for the DPP does not oppose the making of an order of the kind sought by Citibank. To avoid any ambiguity in that regard it will be useful to pause briefly and describe in overview the nature of the orders sought by Citibank in its summons of 10 July 2001.

44 Reference is made to the properties I have earlier identified, namely, the property at 12 Commerce Street, the property at unit 3, 20 Escot Road, the property at 38 to 40 Railway Parade, Bayswater and the property at 10 Old Perth Road, Bassendean.

45 The chamber summons then goes on to make some reference to the Port Hedland properties and the way in which they are affected by other security instruments. The bank proposes in its summons that provision shall be made for the sale of the affected properties and with provision being made for the setting of a reserve price and other precautionary conditions.

46 The summons continues with clauses directed to the manner in which the proceeds will be applied and the proposal is that they will be applied in discharge of the costs of the sale, in discharge of the amount secured by the registrable interest, in payment of amounts owing to the bank pursuant to the mortgages and charges.

47 Reference is made to the charged assets being sold at the best price that can be secured and with similar provisions concerning the charged properties. The conditions contemplate that the various accounts will then be closed. Importantly at par 19:

"The DPP will pay the surplus into an interest bearing account with the Public Trustee in the name of the DPP and Malaga."

"In any application made pursuant to the act the money shall be dealt with as if the property the subject of the freezing order."

49 Thus, the scheme of what is proposed is evident; that is, that the properties be sold subject to certain precautions to ensure that the mortgagee proceeds in a timely and reasonable way, which, of course, in any event, the mortgagee is required to do pursuant to well-recognised common law principles.

50 It is said on behalf of the applicant, as a first matter bearing upon the exercise of the discretion, that it has a legitimate commercial interest pursuant to its mortgage and other security documents in the enforcement of its claim to the charged property. This will be done in a way that does not prejudice the interests of Mr Musarri or Malaga. Provision will then be made for the surplus remaining to be held in the way the summons describes.

51 I turn now to another matter bearing upon the exercise of the discretion. This is implicit in what I have already mentioned, namely, Mr Musarri and Malaga do not oppose the sale, although there is, as I have indicated, some controversy as to the manner in which the sale should be conducted and how the proceeds should be applied.

52 A further matter bearing upon the exercise of the discretion is to take account of the context in which the dispute occurs, that is to say, the matters under consideration arise out of contractual arrangements freely entered into between the parties. To my mind, commercial realities of this kind have a bearing upon what is proposed.

53 Reference has been made to Fisher and Lightwood's Law of Mortgages. I am referring to the Australian edition at par 20.18. There is a reference in the relevant passage to the mortgagee's duty in respect of sale and to the notion that a mortgagor must be bound by and must recognise the consequences of having entered into security arrangements should default eventually be made.

54 As I look at other matters bearing upon the exercise of the discretion, I must take account of the fact that before me is an application made by Mr Musarri and Malaga in which a different approach is proposed. Hence, it will be useful at this point to pause briefly and look at the chamber summons dated 7 September 2001, being the chamber summons and the proposal contended for by Mr Musarri.

55 In that chamber summons reference is made to the freezing order. It is proposed that the Citibank application of 17 July and the Westpac application of 14 August be dismissed. It is then proposed in par 2:

"The freezing order made by his Honour Steytler J on 22 January 2001 be further modified to enable Paul Musarri and Malaga to each sell all property respectively owned by them upon the following terms and conditions."

56 The terms and conditions are then described. It is proposed that a selling agent by the name of Ray White Real Estate Agents should be appointed to handle the sale. It is proposed that the gross proceeds of sale be applied in the following priority: in meeting Ray White's agent's commission, in meeting settlement agent's fees, in meeting municipal and other obligations, in paying to Citibank and Westpac whatever is respectively due to them under securities secured against the titles to the property; the net proceeds following such outlays then be paid to the Director of Public Prosecutions.

57 It is then said that the proceeds of the sale in the hands of the DPP be applied towards payment of an amount of $100,000 to Frank Genovese in respect of past accounting work performed by him, this being described as an outstanding debt. It is proposed that there be a payment of $80,000 to Pryles and Defteros for their legal fees - they being the legal advisers to Mr Musarri and Malaga - and the balance be invested by the DPP. It is said further that such additional orders consistent with these orders as are needed to safeguard the public interest should be made.

58 It is said in support of this matter, and very powerfully by Mr Wells as counsel for the applicant, that in looking at the exercise of the discretion and in construing the provisions of the Act, regard and weight must be given to long-established traditions of the common law which can be traced back to the Magna Carta. He encapsulates his remarks in that regard by referring to cl 39 of Magna Carta in which it is said:

"No free man shall be seized or imprisoned or stripped of his rights or possessions and nor will we proceed with force against him or send others to do so except by the lawful judgment of his equals by the law of the land."

59 It is said, in summary, that this principle is a thread which has run through many centuries of the common law and it might therefore be said in the present case that as Mr Musarri and Malaga effectively are the proprietors of the properties in question, and neither the company nor the individual has been subject to any conviction or adverse verdict, events should not be allowed to occur which might have the effect of stripping the owners of their assets.

60 I hear those arguments with great attention and I do believe they should be accorded respect. However, it is material to note that the provision of Magna Carta just mentioned is subject to the proviso that a person is not to be denied his entitlement except by the law of the land. That of course is an important proviso in the context of the present situation because the law of the land in the present case is reflected in the Act that I mentioned a moment ago. Parliament has decided to introduce special measures which are thought to be necessary to combat some of the difficulties of modern times as reflected throughout the world and in our own society, particularly in regard to the field of drug trafficking.

61 Accordingly, balanced against the important principle that Mr Wells refers to is the equally important principle that in Australian society Parliament exercises sovereign power. If Parliament has chosen to enact its will in the form of a statute, then, of course, proper weight must be given to the relevant statutory provisions. That is the position I find myself in as I weigh up these factors bearing upon the exercise of the discretion contained in s 91.

62 For these reasons I consider that an application of the kind outlined by Mr Musarri must be weighed up very carefully. If a power of sale of the kind envisaged by him is put in place, it is possible that the sale would not be effected expeditiously and certainly an order of the kind proposed would effect quite a fundamental transformation of the freezing order originally made by Steytler J. To my mind, there is force in the submission put before me by counsel for the DPP that in making orders of the kind proposed under s 91, one must have regard to the scheme of the order which is to be varied or partially set aside. The scheme of the existing order is a matter which bears upon the exercise of the discretion.

63 There is another matter raised by counsel for the DPP which must also be considered. It is said that the affidavit evidence relied upon by counsel for Mr Mussari does not specify with particularity or in the form of compelling evidence the way in which the supposed debts to Mr Genovese and the legal firm are said to have been incurred. The evidence bearing upon that point in effect amounts to an assertion that debts of that kind exist. Nonetheless, I am left with a degree of ambiguity as to just how real and pressing the obligation to pay is, and as to the circumstances in which the obligations came into being.

64 Thus, as I review all the relevant factors, being the factors I have attempted to summarise, I am ultimately of the view, as I address the Citibank application, that the application made by Citibank should be allowed in the manner proposed. I will endeavour to draw together the relevant factors in this way. It is recognised by all parties before me that it is necessary and suits the interests of the various parties that there be a realisation of these assets. It seems to me that the protective safeguards reflected in the terms of the proposed Citibank orders are sufficient to protect the position of Mr Mussari and his company in regard to the valuation of the property and the manner in which the sale should proceed.

65 Thus, I am minded to make the orders sought by Citibank. I am satisfied having heard argument that the orders proposed are consistent with the scope of the power described in s 91. I am reinforced in that conclusion by the submissions made by Mr Corboy directed to what he describes as the incidental power.

66 There was some debate about the nature of an incidental power in the course of the hearing before me. In accepting Mr Corboy's submission in that regard, I understand him to be putting it no higher than to say that there are various decided cases bearing upon the presence of an incidental power which suggest that orders of the kind proposed (which allow for a sale of the kind proposed and the distribution of proceeds) can be made as a matter allowed for by the Act and pursuant to the incidental power. I put entirely to one side any question as to whether the so-called incidental power permits the resolution of other, broader issues concerning the disposition of objections and so forth.

67 That being my ruling in response to the Citibank application, the same reasoning bears upon the other applications before me. It follows that I need not address the other applications with the same degree of particularity. Let me say, however, in regard to the application by chamber summons dated 7 September 2001 made by the applicants Mr Mussari and Malaga, that for the reasons I have previously given I am not persuaded that the discretion allowed to me should be exercised in the manner proposed or that otherwise orders should be made of the kind contended for. This application comes before me not in isolation but in the context of the other applications which, for the reasons I have given, do seem to allow for an equitable arrangement to be made to vary or set aside the order previously made in a manner which will permit the assets to be realised. In these circumstances, I have decided to dismiss that application.

68 When I turn to the application by Westpac, again I do not propose to repeat myself. It is sufficient to say in regard to this application that, in my view, the defaults referred to in the affidavits have been sufficiently made out. They are described in the evidentiary materials and they were not seriously challenged at the hearing before me. The matters of discretion I have referred to previously bear upon this application in much the same way as I have detailed in regard to the application made by Citibank. In particular, I notice that in the chamber summons dated 10 August 2001 provision is made also for the obtaining of formal valuation reports.

69 It follows that I am prepared to allow the Westpac application on the basis proposed, although, as I have said before, notwithstanding the terms of the amended summons, I see the orders to be made as being made pursuant to s 91(2). I make no ruling as to whether such orders can be made pursuant to s 82 and s 83 of the Act.

70 Finally, I turn to the application made by the DPP. That, as I say, was an application advanced pursuant to s 49 of the Act. The application in question, dated 17 December 2001, was in respect of a comparatively minor matter, namely, that the freezing order be set aside to the extent that it relates to the following property the subject of an objection dated 27 March 2001 filed by Orix Australia Corporation Ltd, namely, ADV 3000B baseless 3-tonne two-post vehicle hoist serial number 2387. As it is the applicant for the original order who is the party making the application, and as the application was not opposed, I consider it should be granted.

71 I will hear from the parties as to whether any further orders and directions are required.