Supreme Court New South Wales Medium Neutral Citation: Application of the New South Wales Crime Commission; In the matter of Gupta [2022] NSWSC 900 Hearing dates: 24 March 2022 Date of orders: 24 March 2022 Decision date: 24 March 2022 Jurisdiction: Common Law Before: Hamill J Decision: The Court makes orders in accordance with orders 1, 2 and 3 of the notice of motion dated 10 March 2022. Catchwords: CIVIL – confiscation of proceeds of crime – amendment sought to restraining orders previously made – mortgagee seeking to exercise right of sale over restrained property – orders made ex parte – no question of principle Legislation Cited: Criminal Assets Recovery Act 1990 (NSW), ss 9B, 10B(2), 22, 22AA Category: Principal judgment Parties: New South Wales Crime Commission (Plaintiff) Prasun Chandra Gupta (Defendant) Representation: Counsel: S Askew (Plaintiff) Solicitors: New South Wales Crime Commission (Plaintiff) File Number(s): 2020/81019 EX TEMPORE Judgment (REVISED) 1. The New South Wales Crime Commission ("the Commission"), by way of notice of motion filed on 14 March 2022, seeks a number of orders which essentially involve making amendments to a summons originally filed on 12 March 2020. 2. That summons sought, amongst other things, restraining orders under the Criminal Assets Recovery Act 1990 (NSW) in respect of a number of items of property referred to in the schedule to the summons. One of those items of property was a property known, to all concerned and interested, as the Razorback property, which is real estate. That property was subject to a registered mortgage. The mortgagee has exercised its right to sell the property. 3. The Commission was successful in obtaining restraining orders and the purpose of the amendment is to provide a practical resolution to the situation that arises as a result of another interested party, being the mortgagee, exercising their right of sale. 4. The thrust of the orders, which accords with the Act and its purposes and gives practical effect to the current situation, is that any excess between the amount of the debt and the sale price will be held by the NSW Trustee & Guardian until further order. It allows for the money to be held somewhere, if you like, neutral, so that anyone with an interest in it can ultimately have a fight about it in court. 5. I am satisfied, in the circumstances set out in the affidavit of Katie Elaine Bourne dated 10 March 2022, along with various annexures to that and earlier affidavits filed in these proceedings, that the orders should be made. 6. Before formally making those orders, I should indicate that the solicitor for the plaintiff has provided an affidavit of service which sets out the fact that the defendant was notified by an email to his solicitor of the fact of this application. The solicitor wrote back indicating that their firm had filed a notice of discontinuance of acting. Communications have been made to the Glen Innes Correctional Centre where the defendant is now, shall I say, accommodated and there has been no response. 7. Irrespective of the defendant's position on the ultimate assertion of property interest by the Commission, the reality is that the mortgagee has rights independent of that and has chosen to exercise them and there appears, on what I have seen, to be no challenge to their entitlement to do so. So, I am unable to see any prejudice in proceeding, as I have, ex parte and I propose to make the orders in the terms set out in the notice of motion. 8. Accordingly, I make orders in accordance with orders 1, 2 and 3 and note the schedule sets out the details of the property. I order that those orders be made forthwith. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 August 2022