New South Wales Consolidated Acts

CRIMINAL ASSETS RECOVERY ACT 1990 - SECT 25

25 Exclusion of property from restraining order and assets forfeiture order

(1) If an assets forfeiture order--

(a) has been applied for but not made--a person whose interest in property might be subject to the order if made, or

(b) has been made--a person whose interest in property was forfeited by the order,

may apply to the Supreme Court for an order (in this section called an
"exclusion order" ) excluding the interest from the operation of the assets forfeiture order or any relevant restraining order.

(2) The Supreme Court must not make the exclusion order applied for unless it is proved that it is more probable than not that--

(a) in the case of an order relating to fraudulently acquired property--the interest in property to which the application relates is not fraudulently acquired property or is not illegally acquired property, or

(b) in any other case--the interest in property to which the application relates is not illegally acquired property.

(3) An exclusion order must declare the nature and extent of the interest in property to which it relates and--

(a) if the interest has been forfeited to the Crown, but not disposed of--must require the Crown to vest the interest in the claimant, or

(b) if the interest has been disposed of--must require payment by the Crown to the claimant of an amount declared by the Supreme Court to be the value, as at the date of the order, of the former interest of the claimant.

(3A) Despite subsections (1)-(3), the Supreme Court is not to make an exclusion order if the Supreme Court finds that it is more probable than not that the property to which the application for the assets forfeiture order, or the assets forfeiture order, relates is serious crime use property or an interest in property that is capable of being the subject of a substituted serious crime use property declaration.

(4) After an assets forfeiture order has been made, an application for an exclusion order may not be made by a person--

(a) if the person was given notice of the proceedings that led to the relevant restraining order or assets forfeiture order--unless it is made within 6 months after the assets forfeiture order took effect and leave to apply has been granted by the Supreme Court, or

(b) in any other case--unless it is made within 6 months after the assets forfeiture order took effect or the Supreme Court has granted leave to apply after that time.

(5) Notice of an application for an exclusion order is to be given to the Commission and any other person required by the regulations to be given notice and a person entitled to be given notice may appear, and adduce evidence, at the hearing of the application.

(6) The applicant for an exclusion order must give the Commission notice of the grounds on which the exclusion order is sought.

(7) If the Commission proposes to contest an application for an exclusion order, it must give the applicant notice of the grounds on which the application is to be contested.
In such a case, the Commission is not required to give the applicant notice of those grounds, and the application must not be heard, until the Commission has had a reasonable opportunity to conduct an examination of the applicant under section 12 or 31D.

(8) An application may be made by a person under this section whether or not the person has also made an application under section 10C and whether or not any such application is successful.