New South Wales Crime Commission v Phan [2022] NSWSC 1047

Supreme Court New South Wales

Medium Neutral Citation: New South Wales Crime Commission v Phan [2022] NSWSC 1047 Hearing dates: 5 August 2022 Date of orders: 5 August 2022 Decision date: 05 August 2022 Jurisdiction: Common Law Before: Davies J Decision: Upon the Plaintiff giving the usual undertaking as to damages (the giving of which by its solicitor being noted) and Considering that, having had regard to the matters contained in the affidavit of Ryan Bull sworn [Date], there are reasonable grounds for the suspicion stated therein The Court orders: 1. Pursuant to section 10A of the Criminal Assets Recovery Act 1990 no person (other than any registered mortgagee dealing with its right to do so under the registered mortgage) is to dispose of, or attempt to dispose of, or otherwise deal with or attempt to otherwise deal with any interest in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990) of Martin Phan, including the interest in property in the property specified in Schedule One hereto and Schedule Two hereto. 2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Martin Phan shall be examined on oath before a Registrar of the Court concerning his affairs, including the nature and location of any property in which he has an interest. 3. Pursuant to section 12(1)(b)(ii) of the Criminal Assets Recovery Act 1990 Van Bay Nguyen shall be examined on oath before a Registrar of the Court concerning the affairs of Martin Phan, including the nature and location of any property in which Martin Phan has an interest. 4. Pursuant to section 12(1)(b1) of the Criminal Assets Recovery Act 1990 Maria Van Anh Bui shall be examined on oath before a Registrar of the Court concerning the affairs of Maria Van Anh Bui, including the nature and location of any property in which Maria Van Anh Bui or Martin Phan has an interest. 5. Leave is granted to the Plaintiff to obtain from the Registry dates for the examinations ordered in Orders 2, 3 and 4 above. 7. Pursuant to section 10B(2) of the Criminal Assets Recovery Act 1990 the New South Wales Trustee and Guardian shall take control of all the interest of Martin Phan in the property specified in Schedule One hereto and Schedule Two hereto. 8. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Martin Phan shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Martin Phan, a statement verified by oath of Martin Phan setting out the particulars sought in Schedule Three hereto. 9. Liberty is granted to the Plaintiff and Martin Phan to apply on three (3) days' notice. 10. The costs of obtaining these orders shall be costs in the cause. 11. These proceedings be listed for mention before the Common Law Registrar at 9:00am on Monday 7 November 2022. 12. Pursuant to Rule 36.4(1)(a) of the Uniform Civil Procedure Rules 2005 these orders are to take effect as of the date hereof. SCHEDULE ONE 1. Cash in the approximate amount of $100,950 seized by members of the New South Wales Police Force during the execution of a search warrant at 46/512 Burwood Road, Belmore NSW on 15 April 2020. 2. Richard Mile brand watch seized by members of the New South Wales Police Force during the execution of a search warrant at 46/512 Burwood Road, Belmore NSW on 15 April 2020. 3. Five (5) Rolex branded watches seized by members of the New South Wales Police Force during the execution of a search warrant at 46/512 Burwood Road, Belmore NSW on 15 April 2020. 4. One (1) Audemars Piguet watch seized by members of the New South Wales Police Force during the execution of a search warrant at 46/512 Burwood Road, Belmore NSW on 15 April 2020. SCHEDULE TWO 1. Cash in the approximate amount of $21,000 seized by members of the New South Wales Police Force during the execution of a search warrant at 46/512 Burwood Road, Belmore NSW on 15 April 2020. 2. Cash in the approximate amount of $60,000 seized by members of the New South Wales Police Force during the execution of a search warrant at 46/512 Burwood Road, Belmore NSW on 15 April 2020. SCHEDULE THREE 1. Provide full particulars of the nature and extent of all your interests in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990), including in relation to each item of property: (a) a full description of your interest in the property, including the nature of that interest and, where possible, the estimated value, or in the case of bank accounts or deposits - the estimated balance, of that interest; (b) the location of the interest; (c) the name of the person or institution in whose custody title documents in respect of the interest are believed to be; (d) the approximate date of acquisition of the interest; (e) the source of funds used to acquire the interest. 2. Provide full particulars of your liabilities on both a capital and recurring basis, including, in relation to each liability: (a) a full description of the liability including the nature of that liability and the amount of that liability; (b) the name of the person or institution to which the liability is owed. Catchwords: CRIMINAL LAW – proceeds of crime – restraining orders Legislation Cited: Crimes Act 1990 (NSW) s 193C Criminal Assets Recovery Act 1990 (NSW) ss 6, 10A, 10C, 22, 27, 28A Evidence Act 1995 (NSW) s 177 Uniform Civil Procedure Rules 2005 (NSW) r 36.4 Cases Cited: Nil Texts Cited: Nil Category: Procedural rulings Parties: New South Wales Crime Commission (Plaintiff) Martin Phan (Defendant) Representation: Counsel: M Tam - Ex parte (Plaintiff)