Proceeds of Crime Act 2002

CHAPTER 2 - THE CONFISCATION SCHEME  

PART 2-6 - UNEXPLAINED WEALTH ORDERS  

Division 4 - Enforcement of unexplained wealth orders  

SECTION 179SA   Charge on property subject to restraining order  

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.