The Commissioner of the Australian Federal Police v Pharmacy Depot Hurstville Pty Ltd (in liq) [2019] NSWSC 643

The Commissioner of the Australian Federal Police v Pharmacy Depot Hurstville Pty Ltd (in liq) [2019] NSWSC 643

The applicants failed to prove on the balance of probabilities that the funds provided by Pharmacy Depot were loans or that the elements of s 330(4)(a) were satisfied, so the property did not cease to be proceeds or an instrument of unlawful activity. The proposed s 44 undertaking was not satisfactory because the applicants sought to release the property from restraint using bank funds obtained on a wrong and misleading basis, and they did not establish that discretionary exclusion should be made.

Jurisdiction
Australia
Judgment Date
03 June 2019
Procedural Posture
Application Under Ss 29 and 31, Alternatively S 44, of the Proceeds of Crime Act 2002 (cth) to Exclude Property From a Restraining Order / Notice of Motion Filed 13 April 2018 After Restraining Order Made on 10 March 2017
Outcome
Applications refused; applicants ordered to pay the plaintiff's costs.
Legal Topics
['restraining Order' 'exclusion of Property From Restraining Order' 'proceeds of Unlawful Activity' 'instrument of a Serious Offence' 'third Party Acquisition for Sufficient Consideration' 'knowledge or Reasonable Suspicion' 'undertaking Under S 44 of the Proceeds of Crime Act 2002 (cth)']
['criminal Law' 'proceeds of Crime' 'confiscation of Property'] ['restraining Order' 'exclusion of Property From Restraining Order' 'proceeds of Unlawful Activity' 'instrument of a Serious Offence' 'third Party Acquisition for Sufficient Consideration' 'knowledge or Reasonable Suspicion' 'undertaking Under S 44 of the Proceeds of Crime Act 2002 (cth)']

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Procedural Posture

Application Under Ss 29 and 31, Alternatively S 44, of the Proceeds of Crime Act 2002 (cth) to Exclude Property From a Restraining Order / Notice of Motion Filed 13 April 2018 After Restraining Order Made on 10 March 2017

Legal Issues

  1. 1 ["Whether the applicants' interests in the Arncliffe property should be excluded from the restraining order under ss 29 and 31 of the Proceeds of Crime Act 2002 (Cth)." 'Whether the funds provided by Pharmacy Depot to the applicants were acquired by a third party for sufficient consideration without knowledge, and in circumstances that would not arouse a reasonable suspicion, that the funds were proceeds or an instrument of an offence within s 330(4)(a).' 'Whether the applicants established that the funds received from Pharmacy Depot were loans.' "Whether the property should be excluded from restraint under s 44(2) on the basis of the applicants' proposed undertaking."]

Ratio Decidendi

The applicants failed to prove on the balance of probabilities that the funds provided by Pharmacy Depot were loans or that the elements of s 330(4)(a) were satisfied, so the property did not cease to be proceeds or an instrument of unlawful activity. The proposed s 44 undertaking was not satisfactory because the applicants sought to release the property from restraint using bank funds obtained on a wrong and misleading basis, and they did not establish that discretionary exclusion should be made.

Court Disposition

Applications refused; applicants ordered to pay the plaintiff's costs.

Orders

  • ['The applications pursuant to ss 29 and 31 and pursuant to s 44 of the Proceeds of Crime Act 2002 (Cth) for exclusion of property at Arncliffe from the restraining order made on 10 March 2017 are refused.' "The applicants are to pay the plaintiff's costs."]