New South Wales Crime Commission v Acharya

This is a notice of motion returnable before me as duty judge brought by the NSW Trustee and Guardian seeking an order under s 30(1) of the Criminal Assets and Recovery Act 1990 (“CARA”).

In the circumstances in which I will explain, the application is consented to by the plaintiff, the New South Wales Crime Commission. The defendant to the proceedings has not been able to be served and it will be necessary to dispense with service.

The background of the proceedings has been addressed in earlier judgments of this Court including, for example, New South Wales Crime Commission v Acharya [2017] NSWSC 443 and New South Wales Crime Commission v Acharya [2018] NSWSC 1372.

On 20 April 2017, this Court made an order pursuant to s 10A of the CARA restraining all property of the defendant.

On 5 September 2018, the Court made further orders directing the NSW Trustee and Guardian, that is, the applicant on the motion, to take control of the principal sum, which was one half of the proceeds of the defendant’s interest in the property that he owned with his wife in North Ryde.

On 20 November 2018, this Court made orders that the defendant pay to the Treasurer the sum of $1,928,474.09, being an unexplained wealth order made pursuant to s 28 of the CARA. By the operation of s 28C(6), the Unexplained Wealth Order for that amount is a debt payable by the defendant to the Crown and is recoverable as such. Interest accrues under the Civil Procedure Act 2005.

Further, by s 31 of the CARA, the order operates as a charge in favour of the Crown over all of the defendant's property to the extent necessary to secure payment of the assessed amount.

On 18 January 2019, the NSW Trustee and Guardian received the principal sum which I understand to be a portion of the proceeds of the sale of the property to which I referred, being $422,395.75. According to the affidavit before me, it has been held in an account earning interest at a rate between 0.81 to 1.4% per annum. This is reflective of current deposit rates, but is below the rates prescribed to apply to judgments.

As for the defendant, at no stage has he ever entered an appearance in the proceedings, nor did he enter an appearance in family law proceedings between himself and his wife. He departed Australia on 26 January 2017 and, as at 14 October 2020, he had not returned. To the best of everyone's knowledge, he is in India but his location is otherwise unknown and he is unable to be contacted.

Given the nature of the proceedings and those circumstances, I consider it appropriate to allow service of the notice of motion seeking the relief today to be dispensed with.

The only real issue concerns the form of the order. The proposed form of the order is as follows:

The schedule below identifies the principal sum to which I have referred. Proposed order 3 seeks the costs and fees of the NSW Trustee and Guardian in respect of the application be paid in accordance with s 34 of the CARA.

Section 30 of CARA provides as follows:

It can be seen that the order authorised by s 30(1) is an order "directing the NSW Trustee and Guardian to pay to the Treasurer an amount sufficient to discharge the debt created by s 27 arising out of the proceeds assessment order or unexplained wealth order".

The balance of the section then provides a mechanism by which the NSW Trustee and Guardian complies with that order. In particular, s 30(4)(a) authorises the NSW Trustee and Guardian to apply the money in payment of their fees in connection with any expenses incurred by it in connection with the performance of its duties under the restraining order and then s 30(4)(b) provides that they are to pay the rest of the money as provided by s 30(5). Section 30(5) then requires that the money is to be used to discharge the debt owed by the relevant person by paying an appropriate amount to the Treasurer. Section 30(7) provides that, upon that payment, that person's liability under the proceeds assessment order is discharged to the extent of the payment.

Hence, the scheme of the provision is simply that the making of an order under s 30(1) by the Court and then ss 30(4), (5) and (7) operate according to their terms without any further order of the Court. The best the Court can do in respect of those provisions is to make a declaration.

Accordingly, the appropriate form of order is an order made under s 30(1) on the understanding that the NSW Trustee and Guardian can then deal with the funds under ss 30(4)(a), (4)(b) and (5) in that order.

Accordingly, the orders that I make are as follows: