New South Wales Crime Commission v Hindmarch [2023] NSWSC 332

New South Wales Crime Commission v Hindmarch [2023] NSWSC 332

Leave to issue a writ of possession was appropriate because previous orders required the respondent to pay a proceeds assessment amount and authorised the Trustee to take control and sell the property, the respondent had refused to discharge the order, and adequate notice had been given to him and other possible occupants. Mesne profits were refused because the Trustee had not yet obtained actual possession of the property. Indemnity costs were ordered because the respondent's refusal to comply with court orders, defiance, and evasion of service amounted to delinquent conduct sufficient to justify such an order.

Jurisdiction
Australia
Judgment Date
20 March 2023
Procedural Posture
Application for Orders Ancillary to Orders Made Under the Criminal Assets Recovery Act 1990 (nsw), Including Leave for a Writ of Possession, Mesne Profits and Indemnity Costs / Ex Parte Application Before Campbell J
Outcome
Leave granted for the issue of a writ of possession; mesne profits refused; respondent ordered to pay the Trustee's costs on an indemnity basis.
Legal Topics
['enforcement of Proceeds Assessment Order' 'writ of Possession of Land' 'mesne Profits' 'indemnity Costs' 'ex Parte Proceedings']
['civil Procedure' 'proceeds of Crime' 'costs'] ['enforcement of Proceeds Assessment Order' 'writ of Possession of Land' 'mesne Profits' 'indemnity Costs' 'ex Parte Proceedings']

Case Brief

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Procedural Posture

Application for Orders Ancillary to Orders Made Under the Criminal Assets Recovery Act 1990 (nsw), Including Leave for a Writ of Possession, Mesne Profits and Indemnity Costs / Ex Parte Application Before Campbell J

Legal Issues

  1. 1 ['Whether leave should be granted under r 39.1(d) of the Uniform Civil Procedure Rules 2005 (NSW) for the issue of a writ of possession of the land in favour of the Trustee.' 'Whether an order for mesne profits should be made where the Trustee was entitled to possession but had not yet obtained actual possession of the land.' "Whether the respondent's conduct justified an order that he pay the Trustee's costs on an indemnity basis."]

Ratio Decidendi

Leave to issue a writ of possession was appropriate because previous orders required the respondent to pay a proceeds assessment amount and authorised the Trustee to take control and sell the property, the respondent had refused to discharge the order, and adequate notice had been given to him and other possible occupants. Mesne profits were refused because the Trustee had not yet obtained actual possession of the property. Indemnity costs were ordered because the respondent's refusal to comply with court orders, defiance, and evasion of service amounted to delinquent conduct sufficient to justify such an order.

Court Disposition

Leave granted for the issue of a writ of possession; mesne profits refused; respondent ordered to pay the Trustee's costs on an indemnity basis.

Orders

  • ['Leave is granted under r 39.1(d) of the Uniform Civil Procedure Rules 2005 (NSW) for the issue of a writ of possession of the land in favour of the Trustee.' "The writ should not be executed until six weeks' notice of the intended execution is given by either the Trustee or the Sheriff." 'The prayer for relief...