Commissioner of the Australian Federal Police v Cacu (No 2) [2015] NSWSC 1894

Supreme Court New South Wales

Medium Neutral Citation: Commissioner of the Australian Federal Police v Cacu (No 2) [2015] NSWSC 1894 Hearing dates: On the papers Decision date: 11 December 2015 Jurisdiction: Common Law Before: Adams J Decision: 1. The plaintiff to pay the first defendant's costs of and relating to his motion for a stay of proceedings.

2. The second defendant to pay the costs of the plaintiff in relation to her motion for a stay of proceedings, not including costs of matters also relating to the first defendant's motion.

3. Each party to pay their own costs in respect of the consent orders. Catchwords: COSTS – general rule that costs follow the event – application for stay of orders made pursuant to ss 39 and 180 of the Proceeds of Crime Act 2002 (Cth) – separation of issues where different outcomes Legislation Cited: Proceeds of Crime Act 2002 (Cth), ss 39, 42, 180 Cases Cited: Commissioner of the Australian Federal Police v Cacu [2015] NSWSC 1232 Category: Costs Parties: Commissioner of the Australian Federal Police (Plaintiff) Ergun Cacu (First defendant) Sofya Kuzniatsova (Second defendant) Representation: Counsel: T M Thawley SC/ C Conde (Plaintiff) P Singleton (Defendants)

Solicitors: AFP Proceeds of Crime Litigation Unit (Plaintiff) Gregory J Goold Solicitor (Defendants) File Number(s): 2015/00072625

Judgment

Introduction 1. On 10 March 2015 the plaintiff obtained ex parte orders under the Proceeds of Crime Act 2002 (Cth) which, amongst other things, required the defendants to provide statements of financial affairs under s 39 of the Act and attend for examination under s 180 of the Act. On the following day Federal agents arrested Mr Cacu and charged him with offences which, in substance, reflected the suspicions upon which the orders of 10 March 2015 were based. The defendants sought, in notices of motion filed on 1 and 24 April 2015 a stay of the orders requiring Mr Cacu to file statements of financial information until after the determination of the criminal proceedings involving him and, as well, a general stay of the proceedings under the Act until those criminal proceedings had been determined. They also sought an order for the return of a vehicle to Mrs Kuzniatsova and an extension of time for them to challenge the restraining orders. 2. On 3 September 2015 I made orders staying the requirement for Mr Cacu to provide statements of his affairs and attend for examination until his impending trial had been completed but, in relation to Ms Kuzniatsova, who had not been charged and was not facing pending criminal proceedings, I refused a stay of the orders made on 10 March 2015. See Commissioner of the Australian Federal Police v Cacu [2015] NSWSC 1232. 3. I also made an order, following competing submissions, extending time in which to make applications under s 42 of the Act to revoke the restraining orders that, at that time, applied to the defendants' property. Consent orders as to a motor vehicle were also made in favour of Ms Kuzniatsova. I ordered written submissions should be filed on the question of costs.