New South Wales Crime Commission v Sammak [2014] NSWSC 925

Supreme Court New South Wales

Medium Neutral Citation: New South Wales Crime Commission v Sammak [2014] NSWSC 925 Hearing dates: 10 July 2014 Decision date: 10 July 2014 Jurisdiction: Common Law Before: Davies J Decision: 1. Pursuant to section 10A of the Criminal Assets Recovery Act 1990 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 Youssef Joey Sammak, including the interest in property in the property specified in Schedule One hereto, except as provided in Orders 2, 3 and 4 below ("the restraining order"). 2. Pursuant to section 12(1) of the Criminal Assets Recovery Act 1990 the restraining order be varied to allow Youssef Joey Sammak or any other person ("the vendor") to deal with the interest in property of Youssef Joey Sammak in the property specified in Item 1 of Schedule One hereto ("the Blair Athol property") for the purpose of completing the sale of the Blair Athol property ("the sale of the Blair Athol property"). 3. Pursuant to section 12(1) of the Criminal Assets Recovery Act 1990, the monies received from the sale of the Blair Athol property be applied to pay the following: (a) the amount necessary to discharge any registered mortgage secured over the Blair Athol property; (b) reasonable legal and conveyancing costs on the sale of the Blair Athol property; (c) any reasonable agent's commission on the sale of the Blair Athol property; (d) the fee payable to a Registered Valuer for a valuation of the Blair Athol property; (e) any rates or other adjustments or monies reasonably payable under any Agreement for Sale; and (f) any other expenses incurred with consent in writing of the Plaintiff such consent to be in the absolute discretion of the Plaintiff. 4. Pursuant to section 10B(2) of the Criminal Assets Recovery Act 1990, the net proceeds of the sale of the Blair Athol property (after the payment of monies referred to in Order 3 above) be paid, by Bank Cheque, to the NSW Trustee and Guardian, to be held by it until further order. 5. 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 Youssef Joey Sammak in the property described in Item 3 of Schedule One hereto. 6. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Youssef Joey Sammak 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. 7. Leave is granted to the Plaintiff to obtain from the Registry dates for the examination ordered in Order 6 above. 8. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Youssef Joey Sammak shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Youssef Joey Sammak, a statement verified by oath of Youssef Joey Sammak setting out the particulars sought in Schedule Two hereto. 9. Liberty is granted to the Plaintiff and Youssef Joey Sammak to apply on three (3) days' notice. 10. The costs of obtaining these orders shall be costs in the cause. 11. 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 1. The whole of the property described as Lot 1303 in Deposited Plan 1049027 at Blair Athol, Parish of St Peter, County of Cumberland also known 2 St Simon Close, Blair Athol, New South Wales 2560 and registered in the name of Youssef Joey Sammak. 2. The whole of the property described as Lot 2252 in Deposited Plan 1049390 at Prestons, Parish of St Luke, County of Cumberland also known as 2 Messina Circuit, Prestons, New South Wales 2170 and registered in the names of Samir Sammak and Houda Sammak as joint tenants in ½ share, Youssef Joey Sammak in ¼ share and Solomon Simon Sammak in ¼ share as tenants in common. 3. The amount of approximately $59,950 cash seized by police during the execution of a search warrant on premises at 2 St Simon Close, Blair Athol, New South Wales on 8 July 2014. SCHEDULE TWO 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 - proceeds assessment order - restraining orders Legislation Cited: Criminal Assets Recovery Act 1990 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Interlocutory applications Parties: New South Wales Crime Commission (Plaintiff) Youssef Joey Sammak (Defendant) Representation: Counsel: E Goh (Plaintiff) No appearance (Defendant) Solicitors: New South Wales Crime Commission (Plaintiff) No appearance (Defendant) File Number(s): 2014/204128