Supreme Court New South Wales Medium Neutral Citation: New South Wales Crime Commission v Acharya [2018] NSWSC 1372 Hearing dates: 5 September 2018 Date of orders: 05 September 2018 Decision date: 05 September 2018 Jurisdiction: Common Law Before: Davies J Decision: 1. Pursuant to section 12(1) of the Criminal Assets Recovery Act 1990 the restraining order made 20 April 2017 in these proceedings be varied to permit the Defendant's wife ("Pratibha Chitale") to apply to the Family Court of Australia for the following orders: 1) That within 120 days of the date of these Orders the Applicant Wife [Pratibha Chitale]: 1.1 Pay to the NSW Trustee and Guardian an amount equal, as at that date, to one half of the net equity in the property situated and known as 21 Parklands Road, North Ryde, NSW being property described in certificate of title Lot 5 in Deposited Plan 25675 ("The North Ryde Property") ("the principal sum"), 1.2 do all acts and things necessary to refinance the mortgage secured over the North Ryde Property and release and indemnify the husband with respect to the said mortgage. 2) That the principal sum referred to in Order 1 herein is to remain under the control of the NSW Trustee and Guardian on the basis that it is restrained property of Acharya pending the resolution of the Supreme Court proceedings. 3) That upon compliance with Order 1 and 2 herein, pursuant to s106A of the Family Law Act the Applicant Wife be appointed as trustee for the Respondent Husband to do all such acts and things and sign all such documents as may be required to transfer to the wife or such other person as nominated by the wife all of the husband's right title and interest in the North Ryde Property. 4) That for the purposes of calculating the net equity in Order 1 herein, the net equity is equal to the value of the North Ryde Property, namely and unless otherwise agreed, $1,350,000, less the amount of the debt secured by the Mortgage ("net equity"). 2. Pursuant to sections 10B(1) and 12(1) of the Criminal Assets Recovery Act 1990 the principal sum to be transferred by Pratibha Chitale pursuant to the anticipated Family Court orders ("the principal sum") shall be subject to the restraining order made in these proceedings on 20 April 2017. 3. Pursuant to section 10B(2) of the Criminal Assets Recovery Act 1990 the NSW Trustee and Guardian take control of the principal sum. 4. Pursuant to section 14 of the Civil Procedure Act 2005 the requirement and time for service of this motion on the Defendant, as fixed by Part 18, Rule 18.2(1) and Rule 18.4 of the Uniform Civil Procedure Rules 2005, be dispensed with. 5. Pursuant to section 14 of the Civil Procedure Act 2005 the requirement and time for service of any affidavit in support of this motion on the Defendant, as fixed by Part 10, Rule 10.2(1) of the Uniform Civil Procedure Rules 2005, be dispensed with. 6. The costs of this motion be costs in the cause. Orders to be entered forthwith. Catchwords: CRIMINAL LAW – proceeds of crime – restraining orders over jointly owned property – variation to create fund to be restrained pending unexplained wealth order Legislation Cited: Civil Procedure Act 2005 (NSW) Criminal Assets Recovery Act 1990 (NSW) Criminal Assets Recovery Act Regulation 2017 (NSW) Family Law Act 1975 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Nil Texts Cited: Nil Category: Procedural and other rulings Parties: New South Wales Crime Commission (Plaintiff) Shyam Acharya (also known as Sarang Chitale) (Defendant) Representation: Counsel: S Vorreiter (Plaintiff) – Ex parte Solicitors: Legal Unit, New South Wales Crime Commission (Plaintiff) File Number(s): 2017/118115 Publication restriction: Nil Judgment 1. On 20 April 2017, restraining orders were made pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW) in respect of the interests in property of the defendant, on the basis that the defendant was a person who was suspected of being involved in serious crime-related activity, as defined in that Act. The defendant was not able to be served with the restraining orders, but pursuant to reg 5 of the Criminal Assets Recovery Act Regulation 2017 (NSW), an advertisement was placed in the Sydney Morning Herald on 27 June 2018. The publication of the notice in that way is an authorised from of service under the Regulation. 2. The only known property of the defendant was what appears to be the matrimonial home at XX Parklands Road, North Ryde. Pratibha Chitale was married to the defendant and she is a co-owner of that property. There are family law proceedings that have been commenced by the wife against the defendant in relation to the matrimonial property. 3. The Crime Commission and the wife have now reached agreement in relation to the North Ryde property, so that a fund can be created in respect of which an unexplained wealth order can be made at a future time. 4. The details of the arrangement made are set out in a deed which has been entered into between the Crime Commission and the wife dated 29 August 2018. That deed provides, amongst other things, that the wife will make application to the Family Court in her proceedings there to effect the settlement that has been made between the Crime Commission and her. 5. It is in those circumstances that the Crime Commission, by notice of motion filed 30 August 2018, seeks to vary the restraining order already made. The variation of the order will put into place in the present proceedings the arrangement that has been made pursuant to the deed entered into between the Crime Commission and the wife. The restraining orders will then apply to the fund created, leaving the North Ryde property with the wife. 6. The whereabouts of the defendant remains unknown, except that he has left Australia and is believed to be residing somewhere in India. An affidavit of Katie Elaine Bourne sworn 29 August 2018 in support of the present motion, provides evidence that as at 23 August 2018, the New South Wales Police have no further information as to his current whereabouts. In those circumstances, the Commission seeks orders in its motion dispensing with the need to serve the notice of motion and affidavit in support on the defendant. 7. I am satisfied, on the basis of the evidence contained in Ms Bourne's affidavit, that the restraining order should be varied in the way the Commission seeks. I am also satisfied that it is appropriate in the circumstances to dispense with the requirement for service of the motion and supporting affidavit. 8. There will be orders in terms of paragraphs 1 to 6 of the draft order provided to me, which I have signed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 September 2018