International Finance Trust Company Ltd v New South Wales Crime Commission (No 2)

[2010] NSWCA 46

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Judgments and orders
3. › Effect of appellate judgment
4. › Dismissal of proceedings
5. › Whether dismissal discharges orders made in course of proceedings
6. › Orders of superior court valid until set aside
1. Practice and Procedure
2. › Jurisdiction
3. › Distinction between jurisdiction and satisfaction as to factual preconditions
4. › Consent orders
5. › Whether court required to undertake independent inquiry into factual basis for consent orders
1. Administrative Law
2. › Procedural fairness
3. › Hearing rule
4. › Consent orders made without notice to third party claiming interest in property
5. › Whether denial of opportunity to assert interest in property
6. › Criminal Assets Recovery Act 1990 (NSW), ss 27, 29
1. Criminal Law
2. › Recovery of proceeds of crime
3. › Restraining orders
4. › Proceeds assessment orders
5. › Interaction between provisions
6. › Effect of constitutional invalidation of one provision on orders made under other provisions
7. › Criminal Assets Recovery Act 1990 (NSW), ss 10, 12, 22, 27, 29, 33

Quick Take

The dismissal of proceedings by an appellate court does not automatically discharge consent orders made between other parties in the course of those proceedings; such orders remain valid until expressly set aside. A court making consent orders under s 27 of the Criminal Assets Recovery Act 1990 (NSW) is not required to undertake an independent inquiry into the factual preconditions where the affected party has consented. Third parties claiming interests in property subject to a proceeds assessment order are not denied procedural fairness by the making of the order without notice to them, where the statutory scheme provides a separate mechanism (s 29) for them to contest the availability of their property to satisfy the order.