New South Wales Crime Commission v Kane (No 3) [2015] NSWSC 1963

New South Wales Crime Commission v Kane (No 3) [2015] NSWSC 1963

The Court refused restraining orders over the Neville, St Marys and Mt Druitt properties because the material did not establish reasonable grounds for the authorised officer's suspicion that Mr Kane acquired serious crime derived property because of another person's serious crime related activities; the material indicated that the Dural property was financed by bank funds, that Mr Kane gave sufficient consideration for his interest by providing labour and materials, and that he had no reason to suspect the other person's fraud. In any event, the Court held that it had discretion as to the form of any restraining order and would not restrain the remaining properties where there was no...

Jurisdiction
Australia
Judgment Date
18 December 2015
Procedural Posture
Application for Restraining Orders and Ancillary Interim Relief in Unexplained Wealth Proceedings Under the Criminal Assets Recovery Act 1990 (nsw) / Further Hearing After Earlier Ex Parte Restraining Orders and Notice to the Defendant
Outcome
Restraining order refused in respect of Mr Kane's interests in the Neville property, the St Marys property, and the Mt Druitt property; liberty to apply granted; costs ordered for the defendant for the specified period; undertaking released.
Legal Topics
['restraining Orders' 'unexplained Wealth Orders' 'reasonable Grounds for Suspicion' 'serious Crime Derived Property' 'judicial Discretion Under S 10 a Criminal Assets Recovery Act 1990 (nsw)']
['criminal Assets Recovery' 'statutory Interpretation' 'civil Procedure'] ['restraining Orders' 'unexplained Wealth Orders' 'reasonable Grounds for Suspicion' 'serious Crime Derived Property' 'judicial Discretion Under S 10 a Criminal Assets Recovery Act 1990 (nsw)']

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Procedural Posture

Application for Restraining Orders and Ancillary Interim Relief in Unexplained Wealth Proceedings Under the Criminal Assets Recovery Act 1990 (nsw) / Further Hearing After Earlier Ex Parte Restraining Orders and Notice to the Defendant

Legal Issues

  1. 1 ["Whether there were reasonable grounds for the authorised officer's suspicion under s 10A(5)(a)(ii) that Mr Kane acquired serious crime derived property because of serious crime related activities of another person." 'Whether, where s 10A(5)(a)(ii) is relied upon, a restraining order may extend to interests in property not themselves reasonably suspected to be serious crime derived property.' 'Whether the Court has discretion as to the form and scope of a restraining order under s 10A once the statutory conditions are satisfied.']

Ratio Decidendi

The Court refused restraining orders over the Neville, St Marys and Mt Druitt properties because the material did not establish reasonable grounds for the authorised officer's suspicion that Mr Kane acquired serious crime derived property because of another person's serious crime related activities; the material indicated that the Dural property was financed by bank funds, that Mr Kane gave sufficient consideration for his interest by providing labour and materials, and that he had no reason to suspect the other person's fraud. In any event, the Court held that it had discretion as to the form of any restraining order and would not restrain the remaining properties where there was no...

Court Disposition

Restraining order refused in respect of Mr Kane's interests in the Neville property, the St Marys property, and the Mt Druitt property; liberty to apply granted; costs ordered for the defendant for the specified period; undertaking released.

Orders

  • ["Refuse a restraining order in respect of the defendant's interest in the properties in paragraphs 1 (the Neville property), 4 (the St Marys property), and 5 (the Mt Druitt property) of Schedule One to the summons." 'Grant liberty to the parties to apply if so advised in respect of previous orders.' "The plaintiff...