Director of Public Prosecutions v Kunz [1999] FCA 302

Director of Public Prosecutions v Kunz [1999] FCA 302

The agreement dated 15 May 1990 was a sham and contrivance, not entered into on that date but likely created in June 1998; it constituted a prohibited dealing with restrained properties, was not for sufficient consideration, nor in favour of a person acting in good faith, and therefore should be set aside ab initio pursuant to s 52 of the Proceeds of Crime Act 1987 (Cth) and s 243K of the Customs Act 1901 (Cth).

Jurisdiction
Australia
Judgment Date
25 March 1999
Procedural Posture
Civil / Final Judgment
Outcome
Second respondent's motion dismissed; agreement set aside; cost orders made.
Legal Topics
['proceeds of Crime' 'restraining Orders' 'authenticity of Agreements' 'disposition of Property' 'good Faith' 'consideration' 'legal Aid Charges' 'registration of Charges' 'stamp Duty']
['criminal Law' 'property Law' 'civil Procedure'] ['proceeds of Crime' 'restraining Orders' 'authenticity of Agreements' 'disposition of Property' 'good Faith' 'consideration' 'legal Aid Charges' 'registration of Charges' 'stamp Duty']

Case Brief

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Procedural Posture

Civil / Final Judgment

Legal Issues

  1. 1 ['Whether the agreement dated 15 May 1990 between first and second respondents was authentic or a sham' 'Whether disposition or dealing with property effected by the agreement contravened restraining orders' 'Whether agreement was entered into on the date it bears' 'Whether agreement can be set aside under s 52 Proceeds of Crime Act 1987 (Cth) and s 243K Customs Act 1901 (Cth)' 'Whether the agreement was made for sufficient consideration or in favour of a person who acted in good faith']

Ratio Decidendi

The agreement dated 15 May 1990 was a sham and contrivance, not entered into on that date but likely created in June 1998; it constituted a prohibited dealing with restrained properties, was not for sufficient consideration, nor in favour of a person acting in good faith, and therefore should be set aside ab initio pursuant to s 52 of the Proceeds of Crime Act 1987 (Cth) and s 243K of the Customs Act 1901 (Cth).

Court Disposition

Second respondent's motion dismissed; agreement set aside; cost orders made.

Orders

  • ["The second respondent's motion filed on 28 September 1998 be dismissed." "The second respondent pay the applicant's and the third respondent's costs of the said motion including reserved costs." 'The first respondent bear his own costs of the said motion.' "The document entitled 'Agreement of Loan' dated 15 May...