New South Wales Crime Commission v Ying [2023] NSWSC 1439

Supreme Court New South Wales

Medium Neutral Citation: New South Wales Crime Commission v Ying [2023] NSWSC 1439 Hearing dates: 24 November 2023 Date of orders: 24 November 2023 Decision date: 24 November 2023 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 Jiansong Wen affirmed 24 November 2023, there are reasonable grounds for the suspicions stated therein The Court orders: 1. Pursuant to section 10A of the Criminal Assets Recovery Act 1990, except as provided in Orders 2, 3 and 4 below, 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 Di Ying, including the interest in property in the property specified in Schedule One, Schedule Two and Schedule Three hereto ("the restraining order"). 2. Pursuant to section 12(1) of the Criminal Assets Recovery Act 1990 the restraining order be varied to allow Di Ying or any other person ("the vendor") to deal with the interest of Di Ying in the property specified in Schedule One hereto ("the North Sydney property") for the purpose either of completing the sale of the North Sydney property or of selling the North Sydney property at a price agreed in writing by the Plaintiff ("the sale of the North Sydney property"). 3. Pursuant to section 12(1) of the Criminal Assets Recovery Act 1990 the proceeds received from the sale of the North Sydney property may be applied to pay the following: (a) the amount necessary to discharge any registered mortgage secured over the North Sydney property; (b) reasonable legal and conveyancing costs on the sale of the North Sydney property; (c) any reasonable agent's commission on the sale of the North Sydney property; (d) any fee payable to a registered valuer for a valuation of the North Sydney property; (e) any rates or other adjustments or monies reasonably payable under any Agreement for Sale; and (f) any other expenses incurred with the consent in writing of the Plaintiff, the giving of such consent to be in the absolute discretion of the Plaintiff. 4. Pursuant to section 10B(2) of the Criminal Assets Recovery Act 1990, that the net proceeds of the sale of the North Sydney property (after the payment of monies mentioned in Prayer 3 above) shall be paid to the NSW Trustee and Guardian by Bank Cheque or Electronic Funds Transfer to an account nominated by the Plaintiff, to be held by the NSW Trustee and Guardian until further order. 5. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Di Ying 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. 6. Leave is granted to the Plaintiff to obtain from the Registry dates for the examination ordered in Order 5 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 Di Ying in the property specified in Schedule Three hereto. 8. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Di Ying shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Di Ying, a statement verified by oath of Di Ying setting out the particulars sought in Schedule Four hereto. 9. Liberty is granted to the Plaintiff and Di Ying 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 11 March 2024. 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 The whole of the property described as Lot 225 in Strata Plan 93874, at North Sydney, Local Government Area North Sydney, also known as 1911/211 Pacific Highway, North Sydney NSW 2060 and registered in the name of Di Ying as sole owner. SCHEDULE TWO 1. The whole of the property described as Lot 111 in Strata Plan 103272, at Castle Hill, Local Government Area The Hills Shire, also known as 1007/9 Gay Street, Castle Hill NSW 2154 and registered in the name of Di Ying. 2. 2023 Porsche Sedan with New South Wales registration number FBD79X and registered in the name of Di Ying. 3. 2022 Porsche Wagon with New South Wales registration number EZJ67A and registered in the name of Di Ying. SCHEDULE THREE Cash in the approximate amount of $190,000 seized by New South Wales Police Force on 4 October 2023 during the execution of a search warrant at 5 Beaumont Crescent, Bayview NSW 2104. SCHEDULE FOUR 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) Criminal Assets Recovery Act 1990 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Nil Texts Cited: Nil Category: Procedural rulings Parties: New South Wales Crime Commission (Plaintiff) Di Ying (Defendant) Representation: Counsel: G Akle - Ex parte (Plaintiff)