Commissioner of the Australian Federal Police v Ergun [2023] NSWSC 1107

Supreme Court New South Wales

Medium Neutral Citation: Commissioner of the Australian Federal Police v Ergun [2023] NSWSC 1107 Hearing dates: 4 September 2023 Date of orders: 4 September 2023 Decision date: 04 September 2023 Jurisdiction: Common Law Before: Campbell J Decision: Order made for examination in accordance with short minutes of order Catchwords: CRIME — confiscations — application for examination — extant restraining order — evidence demonstrates a sufficient interest in the property — order made for examination Legislation Cited: Proceeds of Crimes Act 2002 (Cth) s 180 Category: Procedural rulings Parties: Commissioner of the Australia Federal Police (Plaintiff) Sinan Ergun (Defendant) Representation: Counsel: R Bianchini (solicitor) (Plaintiff) No appearance (Defendant)

Solicitors: Solicitor for the Australian Federal Police (Plaintiff) File Number(s): 2021/153632

ex tempore JUDGMENT (revised) 1. This is an application made by the Commissioner of the Australian Federal Police under s 180 of the Proceeds of Crimes Act 2002 (Cth) for an order for the examination of Mr Sinan Ergun in respect of interests in property the subject of a restraining order. 2. A restraining order was made on 27 May 2021 in this Court on the grounds set out in the affidavit of Federal Agent Mark Beard sworn 27 May 2021. Property covered by that order extended to a home unit, being unit 86/12‑18 Bathurst Street, Liverpool. As I will explain there are grounds established in the material for believing Mr Ergun is a person who has an interest in that property. 3. I should say the matter has proceeded on an ex parte basis. Having said that I am satisfied by reference to the evidence that Mr Bianchini has read in support of the motion of 19 July 2023, by which the order is sought, that the evidence has been served personally on Mr Ergun. I am also satisfied by reference to Exhibit A that Mr Ergun has received notice that the Commissioner would move for the order today, when the matter was listed before the Registrar for directions by means of referral to the duty judge (which this week happens to me). 4. It does seem from the material that has been read and Exhibit A that Mr Ergun has failed to attend previous directions hearings. Although I am satisfied that he had duly received notice of them. For instance, by email on 4 and 11 August and a telephone call on his mobile phone, which is disclosed in Exhibit A, Mr Ergun spoke to Mr Bianchini, a solicitor in the legal office of the AFP, indicating he was aware of the directions hearing on 14 August 2023 and he requested a three-week adjournment as he had been overseas for a period of time leading up to early August. 5. Apparently, the directions hearing was adjourned until today, 4 September, not quite three weeks, but Mr Ergun was advised of that date by the letter of 31 August, which is Exhibit A. That letter was delivered by email to the address that Mr Ergun had previously used himself. The AFP requested a response from him, but he did not oblige in that regard. 6. I am told by Mr Bianchini, and I accept, that when the matter was before the Registrar today Mr Ergun was called three times and he failed to appear. Likewise, when the matter was called on before me, I caused his name to be called outside the court three times, in accordance with established practice, and once again he failed to appear. On the basis of the evidence read and tendered by Mr Bianchini I am well satisfied Mr Ergun has had adequate notice of the application and of the intention of the Commissioner to make the application today. 7. I also record that in support of the application, an affidavit of Esmeray Ergun affirmed on 9 March 2023 has been read. In that affidavit Ms Ergun deposes that she is the mother of both Sinan Ergun and his sister Sibel Ergun. At paras [19]-[27] of that affidavit she deals with the property at Bathurst Street, Liverpool and says that her family, which I take to be her husband and her children, discussed acquiring that property for her son Sinan, but putting it in her daughter Sibel's name to try and protect the family assets in the event of a breakdown in the relationship between her son Sinan and his then partner. Considerable sums of money, she says, were provided by Sinan and deposited into an account with the Commonwealth Bank in respect of both the settlement of the purchase and, I infer, the repayment of the mortgage. 8. I am well satisfied that the evidence demonstrates at a level sufficient for the purpose of this application that Mr Ergun is a person who may have an interest in that real property, and it furthers of the purpose of the legislation, having regard to the restraining order, that he should be examined on oath about his interests in that property and generally in relation to his financial affairs. 9. I record that it is not said that Mr Ergun has engaged in serious illegal conduct. It is appropriate I make an order in accordance with the short minutes of order that Mr Ergun be examined in relation to his interest in the property and his financial affairs generally, and those of his sister, who is named as the registered proprietor in respect of the property. 10. I make orders in accordance with the short minutes of order handed up by Mr Bianchini, signed by me and dated today, that order may be entered forthwith, and the seal of the Court may be affixed to it.