New South Wales Consolidated Acts

CONFISCATION OF PROCEEDS OF CRIME ACT 1989 - SECT 48

48 Charge on property subject to restraining order or freezing notice

(1) If--

(a) in reliance on the charging, or the proposed charging, of a person with, or the conviction of a person of, a serious offence, a court has made a restraining order or confirmed a freezing notice in respect of property of a person, and

(b) in reliance on the conviction of the person for the offence, a court subsequently makes a pecuniary penalty order or drug proceeds order against the person,

then, on the making of the pecuniary penalty order or drug proceeds order, there is created, by force of this section, a charge on all the property to which the restraining order or freezing notice applies to secure the payment to the State of the penalty amount.

(2) If a charge is created by subsection (1) on property of a person on the making of a pecuniary penalty order or drug proceeds order, the charge ceases to have effect in respect of the property--

(a) on the discharge of the pecuniary penalty order or drug proceeds order on the hearing of an appeal against the making of the pecuniary penalty order or drug proceeds order, or

(b) on payment by the person to the State of the penalty amount, or

(c) on the sale or other disposition of the property--

(i) pursuant to an order made by the Supreme Court under section 47, or

(ii) by the owner of the property with the consent of the Supreme Court, or

(iii) if the restraining order or freezing notice directed the NSW Trustee and Guardian or the Commissioner of Police to take control of the property--by the owner of the property with the consent of the NSW Trustee and Guardian or the Commissioner, or

(d) on the sale of the property to a purchaser in good faith for value who, at the time of purchase, has no notice of the charge,

whichever first occurs.

(3) A charge created on property by subsection (1) on the making of a pecuniary penalty order or drug proceeds order--

(a) is subject to every charge or encumbrance to which the property was subject immediately before the pecuniary penalty order or drug proceeds order was made and, in the case of land under the provisions of the Real Property Act 1900 , is subject to every mortgage, lease or other interest recorded in the Register kept under that Act, and

(b) has priority over all other encumbrances whatever, and

(c) subject to subsection (2), is not affected by any change of ownership of the property.

(4) If a charge is created by subsection (1) on property of a particular kind and the provisions of any law (whether or not a law of the State) provide for the registration of title to, or charges over, property of that kind--

(a) the NSW Trustee and Guardian or Commissioner or an appropriate officer may or, in the case of land, shall cause the charge so created to be registered under the provisions of that law, and

(b) if the charge is so registered, a person who purchases or otherwise acquires the property after the registration of the charge shall, for the purposes of subsection (2), be taken to have notice of the charge.

(5) Where a charge under this section relates to land under the provisions of the Real Property Act 1900 , the charge has no effect until it is registered under that Act.

(6) Section 73 (2) of the Personal Property Securities Act 2009 of the Commonwealth is declared to apply to a charge created by subsection (1).