Commissioner of the Australian Federal Police v Xin [2024] NSWSC 891

Supreme Court New South Wales

Medium Neutral Citation: Commissioner of the Australian Federal Police v Xin [2024] NSWSC 891 Hearing dates: 16 October 2023 Date of orders: 24 July 2024 Decision date: 24 July 2024 Jurisdiction: Common Law Before: Rothman J Decision: (1) The Motion of Tara Global Pty Ltd, notice of which was filed on 3 July 2023, is dismissed. (2) The Motion of Tara Global Pty Ltd, notice of which was filed on 13 July 2023, is dismissed. (3) The Motion of MX Seven Investments Pty Ltd and Wisdom AWCS International Pty Ltd, relating to variation of the Restraining Orders (hereinafter the "Restraining Orders") in paragraphs [113] and [119] of the Restraining Orders made 31 January 2023, is dismissed. (4) Pursuant to ss 29 and 31(1) of the Proceeds of Crime Act 2002 (Cth), the interests of Perpetual Corporate Trust Ltd (ACN 000 341 533) (hereinafter "Perpetual") as registered mortgagee of the real property located at 119 King Street, Sydney in the State of New South Wales being Lot 2 in Deposited Plan 1 104058 (hereinafter the "King Street Property") be excluded from the Orders made by the Court on 31 January 2023. (5) Pursuant to s 39(1)(b) of the Proceeds of Crime Act, notwithstanding the Restraining Orders, Perpetual, and persons acting on behalf of Perpetual, may deal with the King Street Property in accordance with the terms of the registered mortgage AS437510. (6) Pursuant to s 39(1)(b) of the Proceeds of Crime Act, the Restraining Orders in respect of the King Street Property be varied in accordance with the following: (a) In respect of any sale of the King Street Property by or on behalf of Perpetual pursuant to the terms of its registered mortgage AS437510, Perpetual is to use all reasonable endeavours to provide to the plaintiff, by email to his legal representatives and Tara Global Pty Ltd, by email to its representatives, copies of all documentation associated with any sale of the King Street Property including the following documents, by no later than 48 hours prior to completion of the sale, but in any event prior to completion: (i) settlement sheet; (ii) tax invoices for any agent's commission payable on the sale; (iii) the memorandum of fees for the solicitor acting for Perpetual on the conveyance; and (iv) any other documents evidencing the disbursements of the sale price reasonably requested by the plaintiff and Tara Global. (b) On completion of any sale of the King Street Property envisaged by the above Order, the "net proceeds of sale" (as defined below) shall continue to be subject to the terms of the Restraining Orders until further Order of the Court (subject to Part 2-1 Division 6 of the Proceeds of Crime Act). (c) On completion of any sale of the King Street Property, the seller will direct the buyer to pay to the Official Trustee's nominated account the "net proceeds of sale" remaining (if any). (d) On completion of any sale of the King Street Property, pursuant to s 38 of the Proceeds of Crime Act, the Official Trustee is to take custody and control of the net proceeds of sale (as defined below) pending further Order of this Court. (e) The net proceeds of sale referred to in these Orders means the sale price of the King Street Property less the following; (i) the amount of principal owing under the registered mortgage AS437510; (ii) any amounts payable on account of any outstanding rates due to the relevant Council, Sydney Water, and Revenue NSW in respect of land tax; (iii) reasonable legal fees and disbursements payable to the solicitor acting for Perpetual; (iv) reasonable real estate agent's fees and commission in respect of the sale (as agreed in writing by the Plaintiff); and (v) any other reasonable expenses in connection with the sale with the written consent of the Plaintiff; provided that Perpetual has provided to the Plaintiff written evidence in support of those amounts prior to completion. (7) The amount of interest and/or penalties payable under registered mortgage AS437510 is to be the subject of an account and/or agreement between the Plaintiff, Tara Global Pty Ltd and Perpetual Corporate Trust Pty Ltd and/or subject to an Order of the Court. (8) The defendants shall pay the costs of Perpetual in relation to its Motion and the Motions of any one of the defendants in which Perpetual had an interest and appeared and shall pay the costs of the Commissioner of the Australian Federal Police and the Official Trustee. Catchwords: CRIME — proceeds of crime — Proceeds of Crime Act 2002 (Cth) — application to exclude property from restraining orders — whether Official Trustee was negligent in the management of the property Legislation Cited: Proceeds of Crime Act 2002 (Cth), ss 29, 31, 38, 39(1)(b), 76, Part 2-1 Div 6, 190, 191 Civil Liability Act 2002 (NSW), Part 5 Contracts Review Act 1980 (NSW) Category: Principal judgment Parties: Commissioner of the Australian Federal Police (Plaintiff) Steven Hoitou Xin (First Defendant) Yi Ming Wang (Second Defendant) MX Investments Pty Ltd (Third Defendant) MX Seven Investments Pty Ltd (Fourth Defendant) Tara Global Pty Ltd (Fifth Defendant) Wisdom AWCS International Pty Ltd (Sixth Defendant) Representation: Counsel: A Moses SC with W Liu (Plaintiff) M W Young (Fourth and Sixth Defendants) J Yu (Second Defendant) J Foley (Third Respondent) Solicitors: Criminal Assets Litigation, Australian Federal Police (Plaintiff) Dixon Holmes (Defendants) File Number(s): 2023/32255 Publication restriction: Nil.