Proceeds of Crime Act 2002

CHAPTER 2 - THE CONFISCATION SCHEME

PART 2-6 - UNEXPLAINED WEALTH ORDERS

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Division 4 - Enforcement of unexplained wealth orders

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SECTION 179SA Charge on property subject to restraining order

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179SA(1)
If:

(a) an *unexplained wealth order is made against a person; and

(b) the person is the *suspect in relation to a *restraining order that is or has been made against:

(i) the *person ' s property; or

(ii) another person ' s property in relation to which an order under subsection 179S(1) is, or has been, made;

then, upon the making of the later of the orders, there is created, by force of this section, a charge on the property to secure the payment to the Commonwealth of the person ' s *unexplained wealth amount.

179SA(2)
The charge ceases to have effect in respect of the property:

(a) upon the discharge of the *unexplained wealth order or the *restraining order by a court hearing an appeal against the making of the order; or

(b) upon payment to the Commonwealth of the *unexplained wealth amount in satisfaction of the unexplained wealth order; or

(c) upon the sale or other disposition of the property:

(i) under an order under Division 4 of Part 4-1 ; or

(ii) by the owner of the property with the consent of the court that made the unexplained wealth order; or

(iii) if the restraining order directed the *Official Trustee to take custody and control of the property - by the owner of the property with the consent of the Official Trustee; or

(d) upon 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; or

(e) upon the *responsible authority for the unexplained wealth order or restraining order determining, by writing, that the charge should cease to have effect in respect of the property;

whichever first occurs.

179SA(3)
The charge:

(a) is subject to every *encumbrance on the property (other than an encumbrance in which the person referred to in paragraph (1)(a) has an *interest) that came into existence before the charge and that would, apart from this subsection, have priority over the charge; and

(b) has priority over all other encumbrances; and

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

179SA(4)
Subsection 73(2) of the Personal Property Securities Act 2009 applies to the charge (to the extent, if any, to which that Act applies in relation to the property charged).

Note:

The effect of this subsection is that the priority between the charge and a security interest in the property to which the Personal Property Securities Act 2009 applies is to be determined in accordance with this Act rather than the Personal Property Securities Act 2009 .

179SA(5)
A determination made under paragraph (2)(e) is not a legislative instrument.

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History

S 179SA substituted by No 6 of 2015, s 3 and Sch 1 item 24, effective 26 February 2015. No 6 of 2015, s 3 and Sch 1 item 34, contains the following application provision:

34 Application of amendments
…

(6)
Despite the repeal of section 179SA of the Proceeds of Crime Act 2002 made by this Schedule, that section, as in force immediately before that repeal, continues to apply in relation to an unexplained wealth order made before the commencement of this item.

(7)
Sections 179SA and 179SB of the Proceeds of Crime Act 2002 , as substituted by this Schedule, apply in relation to an unexplained wealth order made on or after the commencement of this item:

(a) whether the unexplained wealth order relates to wealth acquired before, on or after that commencement; and

(b) whether the restraining order referred to in subsection 179SA(1) is made before, on or after that commencement.

…

S 179SA formerly read:

SECTION 179SA Legal expenses
179SA(1)
If the court considers that it is appropriate to do so, it may order that the whole, or a specified part, of specified property covered by an order under subsection 179S(1) is not available to satisfy the *unexplained wealth order and may instead be disposed of or otherwise dealt with for the purposes of meeting a person ' s reasonable legal expenses arising from an application under this Act.

179SA(2)
The court may require that a costs assessor certify that legal expenses have been properly incurred before permitting the payment of expenses from the disposal of any property covered by an order under subsection (1) and may make any further or ancillary orders it considers appropriate.

S 179SA inserted by No 3 of 2010, s 3 and Sch 1 item 13, effective 19 February 2010.

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