Youssef v Commissioner of the Australian Federal Police [2019] NSWCA 272

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Youssef v Commissioner of the Australian Federal Police [2019] NSWCA 272 Hearing dates: 21 October 2019 Decision date: 06 November 2019 Before: Gleeson JA at [1] Emmett AJA at [4] Barrett AJA at [19] Decision: (1) Dismiss the summons seeking leave to appeal. (2) Order that the applicants pay the respondent Commissioner's costs. Catchwords: CRIME – dealing with money suspected of being proceeds of crime – restraining order on property – Proceeds of Crime Act 2002 (Cth), s 44 – where applicants purchased real property using money alleged to be proceeds of crime – restraining order under s 18 made in respect of the property – applicants apply under s 44 for exclusion of the property from the restraining order upon their undertaking to use their best endeavours to obtain money from a particular bank account and pay it to the liquidator of the company from which they had received the alleged proceeds of crime – that bank account given "post credits only" status by bank – the application for the loan facility under which the money in the account was obtained from the bank was shown to contain material misstatements – no evidence from the applicants establishing that the bank would allow drawing on the account – whether primary judge erred in finding the undertaking not satisfactory and in refusing to make s 44 excluding order Legislation Cited: Conveyancing Act 1919 (NSW), s 187 Criminal Code (Cth), ss 134.2, 400.9 Proceeds of Crime Act 2002 (Cth), ss 18, 29, 34, 37, 44 Real Property Act 1900 (NSW), s 74F Supreme Court Act 1970 (NSW), s 101 Cases Cited: Australian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 Commissioner of the Australian Federal Police v Pharmacy Depot Hurstville Pty Ltd [2019] NSWSC 643 Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410 House v The King (1936) 55 CLR 499; [1936] HCA 40 Category: Principal judgment Parties: Zeinab Youssef (First Applicant) Hussein Mohamed Ali Haidar (Second Applicant) Commissioner of the Australian Federal Police (Respondent) Representation: Counsel: J Dooley (Applicants) EA Cheeseman SC / D Tang (Respondent)