Commissioner of Police v Tenjay [2019] NSWSC 381

Supreme Court New South Wales

Medium Neutral Citation: Commissioner of Police v Tenjay [2019] NSWSC 381 Hearing dates: 2 April 2019 Date of orders: 02 April 2019 Decision date: 02 April 2019 Jurisdiction: Common Law Before: Campbell J Decision: Orders in accordance with Short Minutes of Orders Catchwords: CRIMINAL LAW – Law Enforcement Powers Responsibility Act – section 219 – property delivered to persons who appear lawfully entitled – Court satisfied on the balance of probabilities that defendants entitled to claimed interest in high performance vehicle – discretionary powers of Court in determining application – complex estate – orders made for payment of amount representative of defendants interest – payment to be made to accountants and held on trust Legislation Cited: Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 219 Cases Cited: Mavris & Anor v Level 12 Property Holdings Pty Limited [2018] NSWSC 957 Category: Procedural and other rulings Parties: Commissioner of Police (Plaintiff) Tenjay Pty Ltd (Defendant Representation: Counsel: A Deards (Plaintiff) C Hagon (Defendant)

Solicitors: File Number(s): 2018/398226

EX TEMPORE Judgment - revised 1. By summons filed on 28 December 2018, the Commissioner of Police seeks an order pursuant to s 219 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) for the delivery of a motor car to such persons as appear to be lawfully entitled to it. The Commissioner has taken, appropriately, the position of a stakeholder of the property, and not actively contended for a particular result. The property is a McLaren high performance sports car. It was seized by police during the course of investigations into drug importation and dealing. It was found in the possession of a person who disclaims any proprietary interest in it. 2. The Commissioner's application is supported by an affidavit of Christopher Wallace, the solicitor with carriage of this matter under the control and supervision of the solicitor on record. In his affidavit of 21 December, Mr Wallace sets out the enquiries investigating police, and he, have made to identify and find the owner of the vehicle. It is unnecessary to go through all the steps taken. 3. I am satisfied that certain persons identified as having a possible interest have been excluded. The evidence supports the conclusion, on my reading of it, that Mr Wallace has reached, recorded at paragraph 21 of his affidavit, that there are three corporate entities that may be lawfully entitled to the vehicle. They are, (a) Tenjay Pty Limited ("Tenjay"), (b) Mazzco Investments Pty Limited ("Mazzco"), and (c) Tumeke Holdings Pty Limited ("Tumeke"). Each of those entities has been named as defendants. Tenjay and Mazzco are represented before me today by Mr Hagon, solicitor and have agreed to that single representation. In the circumstances that have transpired, I am not of the view that there is any conflict of interest in the matter. I will deal with Tumeke's position later in these reasons. 4. Mr Hagon has also read two affidavits, the first from Mr Najib Nehme sworn 2 April 2019, that is today, and an affidavit of Despina Mavris sworn 1 April 2019, yesterday. I am satisfied, from the whole of the evidence, including the affidavit of Mr Wallace, that each of the three entities have what could be described as an interest in the vehicle. 5. At the time the police seized the vehicle, it was in fact registered to a person named Shaun Hannah, but the evidence satisfies me that Mr Hannah, who had acquired the vehicle in September 2015, sold it through a dealership referred to in the evidence as Trivett for the sum of $275,000 around 8 October 2016. It appears that that sale also involved Tenjay Pty Limited, controlled by Mr Elias Nehme. 6. Mr Najib Nehme is the administration officer of Tenjay, which trades in the style "Scuderia Graziani". In his affidavit he deposes that the vehicle was sold through Tenjay to a Mr Jim Mavris for that price of $275,000. The purchase price was only partly paid. Mr Mavris traded-in an Audi RS7 performance vehicle, the property of Tumeke, a company controlled by him. The amount of the trade-in vehicle was $125,000. He also paid the sum of $50,000 out of funds held by Mazzco, another company controlled by him. Mazzco. It is not in dispute that Mr Mavris owed Tenjay the unpaid balance of $100,000 on the purchase of the vehicle when it was seized. That fact appears at paragraph 7 of Mr Nehme's affidavit. It also appears in the statement that Mr Nehme made to investigating police on 25 January 2018 which is annexure C to Mr Wallace's affidavit. 7. Mr Hagon has handed up some short minutes of order proposing that the vehicle be delivered to Tenjay, which still runs the dealership, where it will be sold and the proceeds of sale will be distributed in the following way: $100,000 to Tenjay being the balance due on the original purchase price; Tenjay will also credited for the costs of sale, including its selling commission; and the balance is to be paid to the second and third defendants proportionately in accordance with their actual financial contribution: as to Tumeke, 71.5 percent; and, as to Mazzco 28.5 percent. I am satisfied that those percentages represent the proportionality between the $125,000 and the $50,000 provided in part payment as I have already described. 8. There is one difficulty discussed during the evidence. Which is that Mr Mavris has died. On the evidence before me, he took his life whilst in custody, on remand, facing serious criminal charges. At the time of his death, he was the sole shareholder and director of Mazzco. He was also the sole shareholder and director of Tumeke. Tumeke is not represented before me today, as Mr Hagon has explained, no person has lawfully been appointed to take the place of Mr Mavris, no person can instruct solicitors to act for it. 9. The evidence before me indicates that Mr Mavris used a firm of accountants to handle his financial affairs. The name of that firm is Maddison York. Mr Wallace deposes to a telephone conversation with a Mr Malcolm Davies of that firm on 12 December 2018 who informed him that the Fortis Law Group were acting for Tumeke. That is apparently not correct for the reason explained by Mr Hagon, but it does indicate that Maddison York is still acting for the company as accountants. 10. Apparently, the estate is complicated. Fortis Law Group have received instructions from Mrs Mavris, who is the sole executrix and beneficiary named in the Will, to act on behalf of the estate, but no application for probate has yet been lodged let alone finalised. Mrs Mavris has been appointed a director of Mazzco, the third defendant, under an order made by Slattery J on 25 June 2018 (see Mavris & Anor v Level 12 Property Holdings Pty Limited [2018] NSWSC 957). No application was made in respect of Tumeke. 11. I am satisfied, on the balance of probabilities, that the three defendants are entitled to the interests in the vehicle they claim, and in truth agree among themselves and that I should make orders as sought in the short minutes under s 219. However, so far as that is concerned, the amount that represents Tumeke's interest should, in my opinion, be paid after sale to Maddison York. The accountants should hold the money on trust for their client, Tumeke, until it can be dealt with in accordance with proper instructions. I will request counsel to bring in amended short minutes of order giving effect to these reasons.