Proceeds of Crime Act 2002

CHAPTER 2 - THE CONFISCATION SCHEME  

PART 2-5 - LITERARY PROCEEDS ORDERS  

Division 4 - Enforcement of literary proceeds orders  

SECTION 169   Charge on property subject to restraining order  

169(1)    
If:

(a) a * literary proceeds order is made against a person in relation to an * indictable offence; and

(b) a * restraining order 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 168(1) is, or has been, made; and

(c) the restraining order relates to that offence or a * related offence;

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 * literary proceeds amount.

169(2)    
The charge ceases to have effect in respect of the property:

(a) if the * literary proceeds order was made in relation to the person ' s conviction of the * indictable offence and that conviction is * quashed - upon the order being discharged under Division 5 ; or

(b) upon the discharge of the literary proceeds order or the * restraining order by a court hearing an appeal against the making of the order; or

(c) upon payment to the Commonwealth of the * literary proceeds amount in satisfaction of the literary proceeds order; or

(d) 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 literary proceeds order; or

(iii) where 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

(e) 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;

whichever first occurs.

169(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.

169(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 1:

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 .

Note 2:

Subsection 73(2) of the Personal Property Securities Act 2009 applies to charges created by this section after the commencement of subsection (4) (which is at the registration commencement time within the meaning of the Personal Property Securities Act 2009 ).