Commonwealth of Australia v Lee [2008] NSWSC 1014

Commonwealth of Australia v Lee [2008] NSWSC 1014

The s 66G proceedings should be stayed conditionally because, although the current material did not support relief under s 102, Mr Lee had indicated an intention to pursue relief under s 103 and a sale under s 66G could render that possible buy-back claim nugatory. Section 100 did not preclude a stay, the Commonwealth did not assert prejudice, and the stay was justified only if Mr Lee promptly sought to amend the related proceedings to claim s 103 relief.

Jurisdiction
Australia
Judgment Date
09 September 2008
Procedural Posture
Equity Proceedings Seeking Orders Under S 66 G of the Conveyancing Act 1919 (nsw), With an Interlocutory Application to Stay Proceedings / Ex Tempore Judgment on Defendant's Application for Stay Until Determination of Related Common Law Division Proceedings
Outcome
Stay granted conditionally; proceedings transferred to the Common Law Division and to be listed for directions with proceedings 13862 of 2006; costs of the notice of motion to be costs in the proceedings.
Legal Topics
['stay of Proceedings' 'forfeited Property' 'appointment of Trustees for Sale' 'buy Back of Forfeited Property' 'tenancy in Common' 'proceeds of Crime Act 2002 (cth) Ss 102, 103, 104 and 105' 'conveyancing Act 1919 (nsw) S 66 G']
['practice and Procedure' 'equity' 'proceeds of Crime' 'property Law'] ['stay of Proceedings' 'forfeited Property' 'appointment of Trustees for Sale' 'buy Back of Forfeited Property' 'tenancy in Common' 'proceeds of Crime Act 2002 (cth) Ss 102, 103, 104 and 105' 'conveyancing Act 1919 (nsw) S 66 G']

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Procedural Posture

Equity Proceedings Seeking Orders Under S 66 G of the Conveyancing Act 1919 (nsw), With an Interlocutory Application to Stay Proceedings / Ex Tempore Judgment on Defendant's Application for Stay Until Determination of Related Common Law Division Proceedings

Legal Issues

  1. 1 ["Whether the Commonwealth's s 66G proceedings should be stayed pending determination of proceedings 13862 of 2006 brought by Mr Lee and others under the Proceeds of Crime Act 2002 (Cth)." "Whether Mr Lee had shown an arguable basis for relief under s 102 of the Proceeds of Crime Act 2002 (Cth) in relation to Mrs Lee's forfeited interest in the Augusta Street property." 'Whether a possible claim under s 103 of the Proceeds of Crime Act 2002 (Cth) to buy back forfeited property justified staying the s 66G proceedings.' 'Whether the policy in s 100 of the Proceeds of Crime Act 2002 (Cth), requiring disposal of forfeited property as soon as practicable, precluded a stay.']

Ratio Decidendi

The s 66G proceedings should be stayed conditionally because, although the current material did not support relief under s 102, Mr Lee had indicated an intention to pursue relief under s 103 and a sale under s 66G could render that possible buy-back claim nugatory. Section 100 did not preclude a stay, the Commonwealth did not assert prejudice, and the stay was justified only if Mr Lee promptly sought to amend the related proceedings to claim s 103 relief.

Court Disposition

Stay granted conditionally; proceedings transferred to the Common Law Division and to be listed for directions with proceedings 13862 of 2006; costs of the notice of motion to be costs in the proceedings.

Orders

  • ["Order that the proceedings be stayed until the determination of proceedings 13862 of 2006 or earlier further order, provided that the stay shall lapse if within 28 days the plaintiffs in proceedings 13862 of 2006 have not sought the defendant's consent to the filing of an amended summons seeking relief under s 103...