The Commissioner of the Australian Federal Police v Pharmacy Depot Hurstville Pty Ltd (in liq) [2019] NSWSC 643

Supreme Court New South Wales

Medium Neutral Citation: The Commissioner of the Australian Federal Police v Pharmacy Depot Hurstville Pty Ltd (in liq) [2019] NSWSC 643 Hearing dates: 10 – 12 April 2019 Decision date: 03 June 2019 Jurisdiction: Common Law Before: R A Hulme J Decision: (1) Applications pursuant to ss 29 and 31 and pursuant to s 44 of the Proceeds of Crime Act 2002 (Cth) for exclusion of property at Arncliffe from the restraining order made on 10 March 2017 refused. (2) Applicants to pay the plaintiff's costs. Catchwords: CRIMINAL LAW – proceeds of crime – restraining order – application for exclusion of property from restraining orders – when property becomes, remains and ceases to be proceeds or an instrument under s 330(4)(a) Proceeds of Crime Act 2002 (Cth) – third parties – sufficient consideration – issue of knowledge or reasonable suspicion in circumstances that loan funds were proceeds of crime – applicants' case that acquisition of funds for purchase of residential property made pursuant to a loan not accepted – alternative basis for discretionary exclusion based on undertaking to repay pursuant to s 44 – strong subjective case presented – bank funds to repay obtained on wrongful basis – applicants' onus not discharged – application for exclusion of property from restraining order refused Legislation Cited: Corporations Act 2001 (Cth), s 471B Criminal Code (Cth), ss 134.2, 400.9(1) Proceeds of Crime Act 2002 (Cth), ss 5, 18, 18(2)(c), 18(2)(d), 29, 29(1), 29(2)(c), 30, 31, 31(4), 31(6) 44, 44(2), 44(2)(c), 44(2)(d), 47(4), 48(3), 73, 317, 329, 330, 330(3), 330(4)(a), 337, 338 Cases Cited: Commissioner of the Australian Federal Police v Hart (2018) 262 CLR 76; [2018] HCA 1 Lordianto v Commissioner of the Australian Federal Police [2018] NSWCA 199 Category: Principal judgment Parties: The Commissioner of the Australian Federal Police (Plaintiff/Respondent) Pharmacy Depot Hurstville Pty Ltd (In Liquidation) (First Defendant) Yaakop Youssef (Second Defendant) Hamza Amin Zoghbi (Third Defendant) Zeinab Youssef (aka Haidar) and Hussein Mohamed Ali Haidar (Applicants) Representation: Counsel: Ms E A Cheeseman SC with Ms D Tang (Plaintiff) Mr J Dooley (Applicants)