NSW Crime Commission v Rootes [2019] NSWSC 1387 (3 October 2019)

Last Updated: 11 October 2019

Supreme Court New South Wales

Case Name:	NSW Crime Commission v Rootes
Medium Neutral Citation:	[2019] NSWSC 1387
Hearing Date(s):	3 October 2019
Decision Date:	3 October 2019
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	See paragraph [6]
Catchwords:	PROCEEDS OF CRIME – proceedings finalised by consent
Legislation Cited:	Criminal Assets Recovery Act 1990 (NSW), ss 10A, 10B, 22, 28A, 31A, 31B, 62
Category:	Principal judgment
Parties:	NSW Crime Commission (Plaintiff) Caine Leslie Rootes (Defendant)
Representation:	Counsel: P Donnelly (Plaintiff, mentioned for the Defendant) Solicitors: NSW Crime Commission (Plaintiff)
File Number(s):	2019/96288

JUDGMENT – EX TEMPORE

1. The New South Wales Crime Commission (the plaintiff) for whom Ms Donnelly appears, and Caine Leslie Rootes (the defendant) seek orders in terms of a document entitled "consent order". Ms Donnelly mentions the appearance of the defendant's legal representative, Mr Styles.
2. The background to the application is that on 27 March 2019 the Court made a restraining order pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW) (the Act) in respect of all of the defendant's property interests. On 27 March 2019 the plaintiff applied to this Court for orders under ss 22 and 28A of the Act for a forfeiture order and unexplained wealth order respectively.
3. The minute of order notes that, for the purposes of ss 31A and 31B of the Act, the defendant warrants to the plaintiff that the defendant's only interests in property as at the date of the signing of these orders are the defendant's interests in property specified in schedules 1, 2 and 3 hereto.
4. The orders which are sought to be made by consent will finalise the proceedings and the issues between the parties. The parties wish me to make orders pursuant to s 10B(3)(b) of the Act, making provision for reasonable legal expenses of the defendant which are set out in the draft order. An order for forfeiture pursuant to s 22 of the Act is also provided for.
5. The application for an unexplained wealth order is sought to be dismissed, as is the balance of the summons. The parties also seek, all issues between them having been resolved, that all future listings of these proceedings be vacated. They have come to an agreement that the plaintiff and the defendant are each to bear their own costs.

Orders

6. In these circumstances I am prepared to make the orders by consent and am, indeed, obliged to make them by reason of s 62 of the Act. I note the matters in paragraphs 1, 2, 3, 4, 10 and 11 and I make orders in terms of paragraphs 5, 6, 7, 8 and 9 of the document entitled "consent order" which I will sign and date and place with the papers and provide a copy to Ms Donnelly.

THE COURT NOTES that:

1. On 27 March 2019 the Court made an Order (“the restraining order”) pursuant to section 10A of the Criminal Assets Recovery Act 1990 (“the Act”) in respect of all of the interests in property of Caine Leslie Rootes (“the Defendant”).

2. On 27 March 2019 the Plaintiff applied to the Court:

(1) pursuant to section 22 of the Act for an order forfeiting to, and vesting in, the Crown certain interests in property of the Defendant; and

(2) pursuant to section 28A of the Act for an unexplained wealth order in respect of the Defendant (“the application for an unexplained wealth order”).

3. For the purposes of sections 31A and 31B of the Act or otherwise, the Defendant warrants to the Plaintiff that the Defendant’s only interests in property as at the date of the signing of these orders are the Defendant’s interests in the property specified in Schedule One, Schedule Two and Schedule Three hereto.

4. The restraining order remains in force.

BY CONSENT AND WITHOUT ADMISSIONS EXCEPT FOR THE PURPOSE OF THESE ORDERS THE COURT ORDERS that:

5. 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 these proceedings, out of the property specified in Schedule Two hereto, agreed at:

(1) an amount of $9275.51 (inclusive of GST), such sum to be paid to Gregory J Jones of Counsel; and

(2) an amount of $9275.51 (inclusive of GST), such sum to be paid to John Styles Solicitors.

6. Pursuant to section 22 of the Act the interests in property of the Defendant in the property specified in Schedule One hereto be forfeited to, and vest in, the Crown.

7. The application for an unexplained wealth order is dismissed.

8. The balance of the summons is dismissed and all future listings of these proceedings are vacated.

9. The Plaintiff and the Defendant are to pay their own costs.

THE COURT FURTHER NOTES that:

10. In consideration of these Orders being made the Defendant releases the Crown and the Plaintiff from any claim for damages in consequence of the making of the restraining order or otherwise, agrees not to make applications under sections 24, 25 or 26 of the Act and agrees not to appeal from, or seek leave to appeal from, any order made in these proceedings.

11. By virtue of the provisions of section 10D(1) of the Act the restraining order ceases to remain in force at the time of entry of these orders in respect of the interests in property of the Defendant:

(1) in the property specified in Schedule Three hereto; and

(2) in the property specified in Schedule Two hereto, upon the satisfaction of Order 5 above.

SCHEDULE ONE

1. Funds held by the NSW Trustee and Guardian representing approximately $9,370 of cash seized by NSW Police Force on 18 March 2019 during the execution of a search warrant at the premises at 386 Fitzroy Street, Dubbo NSW 2830, plus any interest earned thereon.

2. Funds held by the NSW Trustee and Guardian representing approximately $110,000 of cash seized by NSW Police Force on 18 March 2019 during the execution of a search warrant located in a safe at the premises at 8 Alluvial Court, Dubbo NSW 2830, plus any interest earned thereon.

3. Unregistered Holden street custom vehicle.

SCHEDULE TWO

Funds held in Commonwealth Bank of Australia account number 253410579903 and held in the name of Caine Leslie Rootes.

SCHEDULE THREE

1. 2009 Toyota Hilux with New South Wales registration number CB38AR and registered in the name of Caine Leslie Rootes.

2. Unregistered 2017 Husqvarna motor bike.

3. Funds held in Commonwealth Bank of Australia account number 253410463142 and held in the name of Caine Leslie Rootes.

4. Funds held in Commonwealth Bank of Australia account number 253410099221 and held in the name of Caine Leslie Rootes.

5. Funds held in the Commonwealth Bank of Australia account number 253410548330 and held in the name of Caine Leslie Rootes.

**********