Supreme Court New South Wales Medium Neutral Citation: New South Wales Crime Commission v Tran [2020] NSWSC 241 Hearing dates: 12 March 2020 Date of orders: 12 March 2020 Decision date: 12 March 2020 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) Pursuant to section 12(1) of the Act the restraining order be varied to allow the Defendant or any other person ("the vendor") to deal with the interest in property of the Defendant in the Cabramatta property for the purpose of selling the Cabramatta property at a price agreed to in writing by the Plaintiff ("the sale of the Cabramatta property"). (2) The vendor apply the monies received from the sale of the property to pay the following: (a) the amount necessary to discharge any registered mortgage secured over the Cabramatta property; (b) reasonable legal and conveyancing costs on the sale of the Cabramatta property; (c) any reasonable agent's commission on the sale of the Cabramatta property; (d) the fee payable to a Registered Valuer for a valuation of the Cabramatta property; (e) any rates or other adjustments or monies reasonably payable under any Agreement for Sale; and (f) any other expenses incurred with consent in writing of the Plaintiff such consent to be in the absolute discretion of the Plaintiff. (3) Pursuant to sections 10B(2) and 12(1) of the Act the net proceeds of the sale of the property (after the payment of monies referred to in Order 5 above) be paid to the NSW Trustee and Guardian by Bank Cheque or Electronic Funds Transfer to an account nominated by the Plaintiff, to be held by the NSW Trustee and Guardian until further order ("the funds held with the NSWT&G"). (4) Pursuant to section 10B(3)(b) of the Act the restraining order make provision for meeting the reasonable legal expenses of the Defendant in respect of the Defendant's current criminal proceedings and these proceedings, such expenses as agreed or assessed, to be paid to Phillip Tran, Tran Solicitors and Attorneys, at rates not exceeding those described in Schedule Two hereto and out of the funds held with the NSWT&G, upon the provision of itemised invoices by Phillip Tran to the Plaintiff. Catchwords: CRIME — confiscations — restraining order — variation Legislation Cited: Criminal Assets Recovery Act 1990 (NSW), ss 10A, 10B Category: Principal judgment Parties: New South Wales Crime Commission (Plaintiff) Van Cao Tran (Defendant) Representation: Solicitors: New South Wales Crime Commission (Plaintiff) Tran Solicitors & Attorneys (Defendant, appearance mentioned by Plaintiff's legal representative) File Number(s): 2018/280261 Publication restriction: Nil REvised EX TEMPORE Judgment 1. The matter comes before the Court today for the purposes of filing consent orders in respect of a variation of an existing restraining order made on 12 September 2018 pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW) ("the Act") in respect of the interests of property of Van Cao Tran, the defendant. Ms Donnelly appears on behalf of the plaintiff, the NSW Crime Commission. She mentioned the appearance of Mr Tran, solicitor for the defendant. 2. Ms Donnelly has provided signed consent orders, that is, consent orders signed on behalf of both the plaintiff and the defendant. 3. I have reviewed the consent orders and note that the variation in respect of the earlier restraining order is to allow the defendant to deal with an interest in property at Cabramatta for the purposes of selling the Cabramatta property at a price agreed to in writing by the plaintiff. The moneys received from the sale will be applied to discharge any registered mortgage and then pay other expenses associated with the sale and then used to fund the defendant's legal costs in defending both the confiscation proceedings and the criminal proceedings being pursued against the defendant. 4. I note the matters referred to in paras 1, 2 and 3 of the consent orders. 5. I make the orders set out in paras 4, 5, 6, 7 of the consent orders, which I have signed and I will place with the papers, and which are as follows: 1. Pursuant to section 12(1) of the Act the restraining order be varied to allow the Defendant or any other person ("the vendor") to deal with the interest in property of the Defendant in the Cabramatta property for the purpose of selling the Cabramatta property at a price agreed to in writing by the Plaintiff ("the sale of the Cabramatta property"). 2. The vendor apply the monies received from the sale of the property to pay the following: 1. the amount necessary to discharge any registered mortgage secured over the Cabramatta property; 2. reasonable legal and conveyancing costs on the sale of the Cabramatta property; 3. any reasonable agent's commission on the sale of the Cabramatta property; 4. the fee payable to a Registered Valuer for a valuation of the Cabramatta property; 5. any rates or other adjustments or monies reasonably payable under any Agreement for Sale; and 6. any other expenses incurred with consent in writing of the Plaintiff such consent to be in the absolute discretion of the Plaintiff. 1. Pursuant to sections 10B(2) and 12(1) of the Act the net proceeds of the sale of the property (after the payment of monies referred to in Order 5 above) be paid to the NSW Trustee and Guardian by Bank Cheque or Electronic Funds Transfer to an account nominated by the Plaintiff, to be held by the NSW Trustee and Guardian until further order ("the funds held with the NSWT&G"). 2. Pursuant to section 10B(3)(b) of the Act the restraining order make provision for meeting the reasonable legal expenses of the Defendant in respect of the Defendant's current criminal proceedings and these proceedings, such expenses as agreed or assessed, to be paid to Phillip Tran, Tran Solicitors and Attorneys, at rates not exceeding those described in Schedule Two hereto and out of the funds held with the NSWT&G, upon the provision of itemised invoices by Phillip Tran to the Plaintiff. ********** 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: 17 March 2020