New South Wales Crime Commission v Byrne

[2026] NSWSC 820

Supreme Court of NSW

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Catchwords

1. CRIME — Confiscations — Restraining order — orders made pursuant to Criminal Assets Recovery Act 1990 — where order is sought ex parte over all of the defendants’ assets anywhere in the world — where second defendant is living in community on bail — where Court has discretion under s 10B(3)(a) to allow for reasonable living expenses when making ex parte orders — where plaintiff has failed to establish any reason for the making of an order over all of the second defendant’s assets anywhere in the world without provision for living expenses
1. CRIME — Confiscations — Restraining order — orders made pursuant to Criminal Assets Recovery Act 1990 — where plaintiff sought ancillary orders ex parte for the examination of the defendants and for defendants to provide information on verified statement — where previous decisions of the Supreme Court have expressly declined to make such orders — where plaintiff did not provide in its evidence an explanation for why the circumstances of the case warranted the making of the ancillary orders ex parte
1. CIVIL PROCEDURE — Interlocutory applications — Ex parte — Duty of disclosure — obligation of parties in ex parte applications to draw the Court’s attention to relevant authorities which may nevertheless be adverse to their claim

Quick Take

The plaintiff (NSW Crime Commission) succeeded in obtaining restraining orders under s 10A of the Criminal Assets Recovery Act 1990 over both defendants' interests in property, but the Court modified the orders to include an exception permitting the second defendant (who was on bail) to meet reasonable living expenses pending the first return date, and declined to make ancillary examination and statement-of-affairs orders ex parte under s 12. The Court held that where a defendant is at liberty in the community, the plaintiff must provide specific evidence justifying the exclusion of a living expenses exception from ex parte restraining orders, following Hammoud. The duty of full and frank disclosure in ex parte applications requires the Crime Commission to draw the Court's attention to adverse authorities — including prior decisions declining to make ancillary orders ex parte — and to address in its evidence why the particular circumstances warrant departure from those authorities. The Court left open that ancillary orders under s 12 may be made ex parte in appropriate cases but held that convenience and cost savings alone are insufficient justification.