Commonwealth Director of Public Prosecutions v Sir Thomas Graham Fry and Anor [2009] NSWSC 261

Commonwealth Director of Public Prosecutions v Sir Thomas Graham Fry and Anor [2009] NSWSC 261

Mr Bateman supplied the money for the purchase and repair of the Lonebird, and Mr Fry's contrary account was rejected. Mr Fry therefore held legal title only as bare trustee on a resulting trust for Mr Bateman, who was the beneficial owner. The Lonebird was not an undertaking in any business of Mr Fry or Mr Bateman and was not excluded from the restraining orders. Mr Fry did not discharge the statutory onus for a declaration under s48(4), because the vessel was intended to be used in the cocaine importation and had been purchased from proceeds of illicit drug sales. It followed that the Director was entitled to the declarations sought, Mr Fry's claims failed, and his damages claim could...

Jurisdiction
Australia
Judgment Date
22 April 2009
Procedural Posture
Proceedings Under the Proceeds of Crime Act 1987(cth) Concerning Restraining Orders and Forfeiture of Property / Principal Judgment After Hearing; Declarations and Orders
Outcome
Declarations sought by the plaintiff granted; declarations and order sought by the first defendant refused; costs ordered against the first defendant.
Legal Topics
['restraining Orders Over Property' 'forfeiture to the Commonwealth' 'beneficial Ownership' 'resulting Trust' 'undertaking in Business' 'disregarding Restrained Property for Forfeiture Purposes']
['proceeds of Crime' 'criminal Law' 'equity and Trusts'] ['restraining Orders Over Property' 'forfeiture to the Commonwealth' 'beneficial Ownership' 'resulting Trust' 'undertaking in Business' 'disregarding Restrained Property for Forfeiture Purposes']

Case Brief

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Procedural Posture

Proceedings Under the Proceeds of Crime Act 1987(cth) Concerning Restraining Orders and Forfeiture of Property / Principal Judgment After Hearing; Declarations and Orders

Legal Issues

  1. 1 ['Whether the sailing vessel Lonebird was beneficially owned by Mr Fry or Mr Bateman.' 'Whether the Lonebird was embraced by the restraining order or excluded as an undertaking in a business with which a defendant was associated.' 'Whether the restraining order against Mr Fry should be disregarded to the extent that it related to the Lonebird under s48(4) of the Proceeds of Crime Act 1987(Cth).' 'Whether the Lonebird, or an interest in it, had been forfeited to the Commonwealth under s30 of the Proceeds of Crime Act 1987(Cth).' 'Whether Mr Fry could sustain a claim for damages by reason of the restraining order.']

Ratio Decidendi

Mr Bateman supplied the money for the purchase and repair of the Lonebird, and Mr Fry's contrary account was rejected. Mr Fry therefore held legal title only as bare trustee on a resulting trust for Mr Bateman, who was the beneficial owner. The Lonebird was not an undertaking in any business of Mr Fry or Mr Bateman and was not excluded from the restraining orders. Mr Fry did not discharge the statutory onus for a declaration under s48(4), because the vessel was intended to be used in the cocaine importation and had been purchased from proceeds of illicit drug sales. It followed that the Director was entitled to the declarations sought, Mr Fry's claims failed, and his damages claim could...

Court Disposition

Declarations sought by the plaintiff granted; declarations and order sought by the first defendant refused; costs ordered against the first defendant.

Orders

  • ["Declared that Mr Fry's interest in the Lonebird was only as trustee for Mr Bateman, who was its beneficial owner." "Declared that Mr Fry's interest in the Lonebird was subject to the restraining order." "Declared that Mr Bateman's beneficial interest in the Lonebird had been forfeited to the Commonwealth."...