New South Wales Crime Commission v Sun [2015] NSWSC 1178

Supreme Court New South Wales

Medium Neutral Citation: New South Wales Crime Commission v Sun [2015] NSWSC 1178 Hearing dates: 10-13 August 2015 and 2 October 2015 Date of orders: 12 October 2015 Decision date: 12 October 2015 Jurisdiction: Common Law Before: Fagan J Decision: (1) Pursuant to s 22, Criminal Assets Recovery Act 1990 the interest of Xiao Yan Xu, the Second Defendant, in the property comprised in Lot 6 in Deposited Plan 872204 known as 14 Wondabah Place, Carlingford, New South Wales be forfeited to and vest in the Crown. (2) Pursuant to ss 27 and 28(3) of the Criminal Assets Recovery Act the Second Defendant pay to the Treasurer the amount of $1,136,707.57. (3) The Notice of Motion filed by the Second Defendant on 3 February 2014 is dismissed. (4) The Second Defendant pay the Plaintiff's costs of the proceedings insofar as they relate to the Second Defendant. Catchwords: CRIMINAL LAW – proceeds of crime – application for assets forfeiture order – application for proceeds assessment order under – Criminal Assets Recovery Act 1990 (NSW), ss 22, 27– whether Defendant had engaged in serious crime related activity – obtaining financial advantage by false or misleading statement – Crimes Act 1900 (NSW), s 178BB – provision of false documents in support of loan application – evidence of expenditure – whether expenditure funded from sources unrelated to illegal activity Legislation Cited: Crimes Act 1900 (NSW) Criminal Assets Recovery Act 1990 (NSW) Evidence Act 1995 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Elias v Director of Public Prosecutions (NSW) [2012] NSWCA 302 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) ALJR 170 New South Wales Crime Commission v Elie Akiki (Supreme Court of NSW, Greg James J, 3 December 2002, unreported) New South Wales Crime Commission v Kelaita [2008] NSWCA 284; (2008) 75 NSWLR 564 New South Wales Crime Commission v Shamaileh [2013] NSWSC 258 R v Maslen and Shaw (1995) 79 A Crim R 199 R v Walsh (1990) 52 A Crim R 80 Category: Principal judgment Parties: New South Wales Crime Commission (Plaintiff) Andrew Sun (First Defendant) Xiao Yan Xu (Second Defendant) Representation: Counsel: C Dobraszczyk (Plaintiff) GD Wendler (Second Defendant)