Commissioner of the Australian Federal Police v Aouli [2024] NSWSC 1395

Supreme Court New South Wales

Medium Neutral Citation: Commissioner of the Australian Federal Police v Aouli [2024] NSWSC 1395 Hearing dates: 18 October 2024 Date of orders: 5 November 2024 Decision date: 05 November 2024 Jurisdiction: Common Law Before: Campbell J Decision: 1. Pursuant to Sections 29 and 31 of the Proceeds of Crime Act 2002 (Cth) (the Act), the interests of NAB and its registered mortgage AM294 with respect to the property at xxxx, Connells Point NSW 2221 (the Property) be excluded from the restraining orders made on 4 August 2022 (Restraining Orders). 2. Pursuant to Section 39(1) of the Act, the Restraining Orders with respect to the Property be varied in accordance with these orders. 3. NAB is to provide the Plaintiff, by email to its legal representatives EC­CAL@afp.gov.au copies of the following documents, associated with the sale of the Property, no later than 72 hours prior to completion of the sale: a) a copy of the contract of sale; b) details in writing of the time for settlement to occur via a PEXA Workspace; c) a copy of any Australian Taxation Office foreign resident capital gains withholding clearance certificate or variation certificate; d) a copy of the statement of adjustments and the settlement statement; e) copies of any tax invoices for any agent's commission or fees payable on the sale and a copy of the memorandum of fees from any solicitor acting on the sale; and f) any other documents evidencing the disbursement of the sale price reasonably requested by the Plaintiff. 4. Upon completion of the sale of the Property, the 'net proceeds of sale' shall continue to be subject to the terms of the Restraining Orders as they relate to the Property, until further order of the Court (subject to Part 2-1 Division 6 of the Act). 5. Upon completion of the sale of the Property, pursuant to Section 38 of the Act, the Official Trustee in Bankruptcy (Official Trustee) is to take custody and control of the 'net proceeds of sale'. 6. The 'net proceeds of sale' referred to in these Orders means the sale price of the Property, less any amounts payable with respect to the sale of the Property, including: a) outstanding rates, Land Tax and other charges due; b) the amount owing under NAB's registered mortgage AM294, including NAB's legal fees and disbursements payable to the solicitor for NAB; c) reasonable real estate agent's fees and commission in respect of the sale; and d) any other reasonable expenses in connection with the sale, provided NAB has provided the Plaintiff written evidence in support of those amounts prior to completion. 7. On completion of any sale of the Property, NAB will direct the purchaser to pay to the Official Trustee the 'net proceeds of sale' as directed by the Official Trustee in writing. 8. These orders be entered forthwith. Catchwords: CRIME – confiscations – restraining order – proceeds of crime Legislation Cited: Proceeds of Crime Act 2002 (Cth), ss 17, 18, 19, 20, 20A, 25, 29, 31, 36, 37, 39, 278, 281, 330, 338 Real Property Act 1900 (NSW), ss 56, 57, 58 Trustee Act 1925 (NSW), ss 95, 98 Cases Cited: Adams v Bank of New South Wales [1984] 1 NSWLR 285 Australian Federal Police v AD (No 2) [2015] NSWSC 1756 Australian Federal Police v Xin [2024] NSWSC 1038 Bofinger v Kingsway Group Limited [2009] 239 CLR 269; [2009] HCA 44 Charles v Kay (1887) 35 Ch D 544 Commissioner of the Australian Federal Police v Aouli [2022] NSWSC 1052 Forsyth v Blundell (1973) 129 CLR 477 Kinsella v Gold Coast City Council [2015] 1 Qd R 274; [2014] QSC 65 Lordianto v Commissioner of the Australian Federal Police (2019) 266 CLR 273; [2019] HCA 39 Category: Procedural rulings Parties: Commissioner of the Australian Federal Police (Plaintiff) Maher Aouli (First Defendant) Build Line Consulting Pty Ltd (Second Defendant) National Australia Bank Limited (Interested Party) Representation: Counsel: K Anderson (Plaintiff) P English with T Gooley (Defendants) J Foley (Interested Party)