Gottschald, P (trustee for Sarkis, A.) v The Commonwealth of Australia & Ors [1987] FCA 543

t /SUDGMENT No. 943/31.

Banking (Foreign Exchange) Regulations - Meaning of "forfeiture"

CATCHWORDS

under regulation 42(2) - Whether a Judge could validly order "the forfeiture of bank drafts (there being a large number of drafts in more than one currency) in the amount of $10,000" - Meaning and possible operation of such an order in respect of the exchange of currencies - Appropriate order where purported

forfeiture of drafts seized from the bankrupt was held invalid.

Banking Act 1959, s.39 Banking (Foreign Exchange) Regulations, reg.42

PETER WILLIAM GOTTSCHALD AS TRUSTEE OF THE BANKRUPT ESTATE OF AFIF SARKIS -V- THE COMMONWEALTH OF AUSTRALIA & ORS.

W.573 of 1984

Burchett J. Sydney 12 October 1987

IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF THE STATE OF

NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY

REASONS FOR JUDGMENT

wee

No. W.573 of 1984

BETWEEN:

lz a i]

AND:

BURCHETT J.

PETER WILLIAM GOTTSCHALD as trustee

of the bankrupt estate of AFIF SARKIS

Applicant

THE COMMONWEALTH OF AUSTRALIA

First Respondent

THE COMMONWEALTH BANK OF AUSTRALIA

Second Respondent

THE AUSTRALIAN FEDERAL POLICE

Third Respondent

This 1S an application and cross-application in respect

of the administration of an estate of a bankrupt. The issue

arises under the Banking Act 1959 and the Banking (Foreign

Exchange) Regulations made pursuant to that Act, particularly

regulation 42(2) which provides:

2.

"Subject to sub-regulations (3) and (4) [which are designed to exclude the case of an innocent owner and to ensure that such a person has an opportunity to demonstrate his innocence] where a person has been convicted by a court of an offence against' these Regulations, the court may, 1f it thinks fit, order the forfeiture of all or any of the articles in respect of which the offence was

committed."

The circumstances out of which the present questions arise may be briefly recounted. Mr. Sarkis was made a bankrupt on 22 June 1984, when the applicant became his trustee. Prior to his bankruptcy, Mr. Sarkis was (on 10 February 1984) convicted in