Commissioner of the Australian Federal Police v Hills Greenery Pty Ltd (No 2) [2024] NSWSC 448

Supreme Court New South Wales

Medium Neutral Citation: Commissioner of the Australian Federal Police v Hills Greenery Pty Ltd (No 2) [2024] NSWSC 448 Hearing dates: 8, 9, 10, 12, 15, 18 and 19 April 2024 Decision date: 26 April 2024 Jurisdiction: Common Law Before: Ierace J Decision: (1) Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth) (the Act), the property specified in Schedule One of these orders (which is the property referred to in Schedule Four of the Amended Summons filed in these proceedings on 29 May 2020 (Summons) and, for the purposes of s 56 of the Act, has a value of AUD1,030,000), be forfeited to the Commonwealth. (2) Pursuant to section 69(2) of the Act, leave is granted to the Commonwealth, and persons acting on its behalf, to dispose of or deal with the forfeited property in Schedule One immediately. (3) The Commissioner of the Australia Federal Police and the Commonwealth are released from the usual undertaking as to costs and damages provided to the Court in these proceedings on 29 May 2020, insofar as it relates to the property specified in Schedule One of these orders. (4) The Fourth Defendant pay the Plaintiffs costs of and incidental to the Fourth Defendant's Notices of Motion filed 14 July 2020 and 28 November 2020 and the Plaintiff's costs of and incidental to his application for forfeiture of the property specified in Schedule One on and from 18 March 2024. (5) The Court notes the agreement as between the Plaintiff and the Fifth Defendant that the Fifth Defendant consents to the making of the forfeiture order in relation to his interest in the property specified in Schedule One of these orders on the basis that there be no order as to costs in relation to the Fifth Defendant's participation in the proceedings with a view to the Plaintiff and the Fifth Defendant each bearing their own costs. (6) Make no order as to the Fifth Defendant's costs, to the intent that he bear his own costs. Catchwords: CRIME – proceeds of crime – whether forfeiture orders must be made pursuant to s 49(1) of the Proceeds of Crime Act 2002 (Cth) – whether the court's discretion to refuse forfeiture orders is to be exercised under s 49(4) of the Proceeds of Crime Act 2002 (Cth) Legislation Cited: Proceeds of Crime Act 2002 (Cth), ss 5, 19, 29, 31, 49, 73, 74, 77, 78, 317, 329 Taxation Administration Act 1953 (Cth), Sch 1, ss 308-110, 308-125 Cases Cited: Commissioner of the Australian Federal Police v Fernandez (2018) 100 NSWLR 610; [2018] NSWCA 198 Commissioner of the Australian Federal Police v Hills Greenery Pty Limited [2023] NSWSC 288 Commissioner of the Australian Federal Police v Hills Greenery Pty Ltd [2024] NSWSC 189 Courtenay Investments Ltd v Director of Public Prosecutions (Cth) [2012] WASCA 121 McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 45 O'Sullivan v Farrer (1989) 168 CLR 210 at 216; [1989] HCA 61 Tedesco v Director of Public Prosecutions (2010) A Crim R 473; [2010] SASC 336 Category: Principal judgment Parties: The Commissioner of the Australian Federal Police (Plaintiff) Hills Greenery (First Defendant) NSW Greenery Pty Limited (Second Defendant) Bilal Hassan Allam (Third Defendant) ATM Greenland Pty Limited (Fourth Defendant) Belal El Alami (Fifth Defendant) Representation: Counsel: Ms S Clemmett; Ms H Lam (Plaintiff) Mr T Pickering (Second Defendant) (8 and 9 April 2024) Mr T Barber (Fourth Defendant)