sec.123Third party protection relating to forfeiture

### sec.123 Third party protection relating to forfeiture This section applies in relation to— a person, other than the defendant, who has an interest in a motor vehicle forfeited to the State under part 2 , division 1 or 1A ; or a person, other than the defendant, who did not appear at the hearing of an application for a forfeiture order and has an interest in the motor vehicle forfeited to the State under the order. The person may apply to the determining court for an order under subsection (6) . Subsection (1A) applies even though the value of the motor vehicle may be more than the maximum amount that may be claimed in a personal action in the civil jurisdiction of a Magistrates Court. Unless the determining court gives leave, the application must be made— for forfeiture under part 2 , division 1 or 1A —before the end of the period of 6 months starting on the day the motor vehicle became the property of the State; or for a forfeiture order—before the end of the period of 6 months starting on the day the forfeiture order was made. The relevant court may give leave for a later application if it is satisfied that the delay in applying was not because of the applicant’s neglect. Unless the relevant court gives leave, a person who was given notice of the application for the forfeiture order can not apply to the court for an order under subsection (6) . On an application, an order may be made— declaring the nature, extent and, if necessary for the order, the value (when the declaration is made) of the applicant’s interest in the motor vehicle; and directing the State— if the motor vehicle is still vested in the State—to transfer the motor vehicle to the applicant; or if the motor vehicle is no longer vested in the State—to pay to the applicant the value of the applicant’s interest in the motor vehicle after taking into account any amount paid to the holder of a registered security interest under section 121 (2) (c) . The relevant court must, and may only, make the order if it is satisfied— the applicant has or, apart from the forfeiture, would have a genuine interest in the motor vehicle; and the relevant prescribed offence happened without the knowledge and consent of the applicant. For all applications, including applications for leave to apply— the applicant must give notice of the making of the application to the commissioner; and the party given notice is a party to the application. In this section— defendant means the person found guilty of the prescribed offence because of which the forfeiture under part 2 , division 1 or 1A happened or the forfeiture order was made. determining court means— for forfeiture under part 2 , division 1 or 1A —the Magistrates Court for the Magistrates Court district, or division of the district, in which the motor vehicle was impounded for the prescribed offence; or for a forfeiture order—the relevant court to which the application for the order was made. relevant prescribed offence means the prescribed offence because of which the forfeiture under part 2 , division 1 or 1A happened or the forfeiture order was made. s 123 prev s 123 om 2005 No. 45 s 6 pres s 123 ins 2002 No. 33 s 6 amd 2005 No. 64 s 13 ; 2007 No. 1 s 11 sch 1 ; 2013 No. 15 s 75 (sec.123-ssec.1) This section applies in relation to— a person, other than the defendant, who has an interest in a motor vehicle forfeited to the State under part 2 , division 1 or 1A ; or a person, other than the defendant, who did not appear at the hearing of an application for a forfeiture order and has an interest in the motor vehicle forfeited to the State under the order. (sec.123-ssec.1A) The person may apply to the determining court for an order under subsection (6) . (sec.123-ssec.2) Subsection (1A) applies even though the value of the motor vehicle may be more than the maximum amount that may be claimed in a personal action in the civil jurisdiction of a Magistrates Court. (sec.123-ssec.3) Unless the determining court gives leave, the application must be made— for forfeiture under part 2 , division 1 or 1A —before the end of the period of 6 months starting on the day the motor vehicle became the property of the State; or for a forfeiture order—before the end of the period of 6 months starting on the day the forfeiture order was made. (sec.123-ssec.4) The relevant court may give leave for a later application if it is satisfied that the delay in applying was not because of the applicant’s neglect. (sec.123-ssec.5) Unless the relevant court gives leave, a person who was given notice of the application for the forfeiture order can not apply to the court for an order under subsection (6) . (sec.123-ssec.6) On an application, an order may be made— declaring the nature, extent and, if necessary for the order, the value (when the declaration is made) of the applicant’s interest in the motor vehicle; and directing the State— if the motor vehicle is still vested in the State—to transfer the motor vehicle to the applicant; or if the motor vehicle is no longer vested in the State—to pay to the applicant the value of the applicant’s interest in the motor vehicle after taking into account any amount paid to the holder of a registered security interest under section 121 (2) (c) . (sec.123-ssec.7) The relevant court must, and may only, make the order if it is satisfied— the applicant has or, apart from the forfeiture, would have a genuine interest in the motor vehicle; and the relevant prescribed offence happened without the knowledge and consent of the applicant. (sec.123-ssec.8) For all applications, including applications for leave to apply— the applicant must give notice of the making of the application to the commissioner; and the party given notice is a party to the application. (sec.123-ssec.9) In this section— defendant means the person found guilty of the prescribed offence because of which the forfeiture under part 2 , division 1 or 1A happened or the forfeiture order was made. determining court means— for forfeiture under part 2 , division 1 or 1A —the Magistrates Court for the Magistrates Court district, or division of the district, in which the motor vehicle was impounded for the prescribed offence; or for a forfeiture order—the relevant court to which the application for the order was made. relevant prescribed offence means the prescribed offence because of which the forfeiture under part 2 , division 1 or 1A happened or the forfeiture order was made. - (a) a person, other than the defendant, who has an interest in a motor vehicle forfeited to the State under part 2 , division 1 or 1A ; or - (b) a person, other than the defendant, who did not appear at the hearing of an application for a forfeiture order and has an interest in the motor vehicle forfeited to the State under the order. - (a) for forfeiture under part 2 , division 1 or 1A —before the end of the period of 6 months starting on the day the motor vehicle became the property of the State; or - (b) for a forfeiture order—before the end of the period of 6 months starting on the day the forfeiture order was made. - (a) declaring the nature, extent and, if necessary for the order, the value (when the declaration is made) of the applicant’s interest in the motor vehicle; and - (b) directing the State— (i) if the motor vehicle is still vested in the State—to transfer the motor vehicle to the applicant; or (ii) if the motor vehicle is no longer vested in the State—to pay to the applicant the value of the applicant’s interest in the motor vehicle after taking into account any amount paid to the holder of a registered security interest under section 121 (2) (c) . - (i) if the motor vehicle is still vested in the State—to transfer the motor vehicle to the applicant; or - (ii) if the motor vehicle is no longer vested in the State—to pay to the applicant the value of the applicant’s interest in the motor vehicle after taking into account any amount paid to the holder of a registered security interest under section 121 (2) (c) . - (i) if the motor vehicle is still vested in the State—to transfer the motor vehicle to the applicant; or - (ii) if the motor vehicle is no longer vested in the State—to pay to the applicant the value of the applicant’s interest in the motor vehicle after taking into account any amount paid to the holder of a registered security interest under section 121 (2) (c) . - (a) the applicant has or, apart from the forfeiture, would have a genuine interest in the motor vehicle; and - (b) the relevant prescribed offence happened without the knowledge and consent of the applicant. - (a) the applicant must give notice of the making of the application to the commissioner; and - (b) the party given notice is a party to the application. - (a) for forfeiture under part 2 , division 1 or 1A —the Magistrates Court for the Magistrates Court district, or division of the district, in which the motor vehicle was impounded for the prescribed offence; or - (b) for a forfeiture order—the relevant court to which the application for the order was made.