Commissioner of the Australian Federal Police v HWCJ GLB Pty Ltd (No 2) [2024] NSWSC 482

Supreme Court New South Wales

Medium Neutral Citation: Commissioner of the Australian Federal Police v HWCJ GLB Pty Ltd (No 2) [2024] NSWSC 482 Hearing dates: 26 February 2024, 27 February 2024, 28 February 2024 and 8 March 2024 Date of orders: 30 April 2024 Decision date: 30 April 2024 Jurisdiction: Common Law Before: Dhanji J Decision: In respect of each applicant, I make the following orders: (1) Pursuant to s 29 of the Proceeds of Crime Act 2002 (Cth) ("POCA"), the interest of each applicant in the property restrained by the orders made on 3 November 2022, together with any interest earned on that applicant's interest in the property while under restraint, is hereby excluded from restraint. The interest of each applicant in the restrained property is the amount or amounts, if any, set out against the name of that applicant in the Schedule attached to these orders. (2) Leave is granted to each applicant to apply for an order pursuant to s 39(2)(d) of the POCA. (3) Pursuant to s 39(1)(e)(i) of the POCA, the Official Trustee is directed to pay to each applicant the amount or amounts set out next to the name of that applicant out in the attached Schedule, together with any interest earned on that amount or those amounts while under restraint. Payment is to be made by electronic funds transfer to such account as may be specified in writing by each applicant or their legal representative. (4) These orders are stayed for a period of 28 days from today. (5) Costs are reserved. Catchwords: CRIME – proceeds of crime – where proceedings brought by the Australian Federal Police under the Proceeds of Crime Act 2002 (Cth) – monies held in various accounts with Australian banks – where those monies are proceeds of crime – organised crime syndicate - complex international investment scam – Operation Wickham – scam conducted online – where contributors to the accounts appear to have been victims of the same fraud CRIME – proceeds of crime - restraining orders made – where applicants seek recompense – various orders sought – forfeiture – exclusion – compensation – question as to the form relief should take – question as to how to treat the claims – whether as claims against the defendants' property generally, or as claims on particular accounts – where a large number of contributors to the accounts did not come forward to participate in the proceedings – question as to how the contributions of non-participants to the proceedings should be treated – consideration of the case of Robb – consideration of alternative methodologies for the division of funds – the discussion in Caron – the rule in Clayton's case – pari passu approach – 'pro rata' is still not English – lowest intermediate balance rule – layers of fiction – proposal at hearing of a hybrid method of distribution – where ultimately what is sought is the 'least unfair' outcome – most appropriate methodology applied to each account – orders made – orders stayed for 28 days Legislation Cited: Criminal Code (Cth) Proceeds of Crime Act 2002 (Cth) Cases Cited: Caron v Jahani (No 2) (2020) 102 NSWLR 537; [2020] NSWCA 117 Commissioner of the Australian Federal Police v Hart (2018) 262 CLR 76; [2018] HCA 1 Commissioner of the Australian Federal Police v HWCJ GLB Pty Ltd [2022] NSWSC 1574 Commissioner of the Australian Federal Police v HWCJ GLB Pty Ltd [2022] NSWSC 1574 Devaynes v Noble (1816) 35 ER 767 Lordianto v Commissioner of the Australian Federal Police (2018) 100 NSWLR 630; [2018] NSWCA 199 McKenzie v Alexander Associates Ltd (No 2) (1991) 5 NZCLC 67,046 National Crime Agency v Robb [2014] EWHC 4384, [2015] Ch 520 Pirina, in the matter of fund options (Australia) Pty Ltd) (in liquidation) (No 2) [2023] FCA 681 Category: Principal judgment Parties: Commissioner of the Australian Federal Police (Plaintiff) HWCJ GLB Pty Ltd (First Defendant) JCJ Health Pty Ltd (Second Defendant) GSL Bud Pty Ltd (Third Defendant) Hong HZ Pty Ltd (Fourth Defendant) LJ Yin Pty Ltd (Fifth Defendant) Wenhao Globle Pty Ltd (Sixth Defendant) TJL International Pty Ltd (Seventh Defendant) XM Global Pty Ltd (Eighth Defendant)