Asset confiscation & recovery

Confiscation and proceeds of crime lawyers in Melbourne

Confiscation laws can allow property to be restrained or forfeited in connection with alleged criminal activity, affecting homes, bank accounts, businesses and other assets.
Mazzeo Lawyers advises people affected by confiscation proceedings, including those with an interest in restrained property, on the orders made and the options available to protect their position.

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When property has been restrained, the first question is what the order affects. The next is what can be done about it.

Restraining and confiscation proceedings can affect both the person connected with the alleged offending and other people with an interest in the property. Understanding the particular order, the legislation under which it was made and any applicable time limits is critical.

RESTRAINED PROPERTY

What happens when property is restrained?

A restraining order restricts how property can be dealt with. Depending on the order, this may affect real estate, money in bank accounts, business interests and other assets.

A restraining order does not necessarily mean the property has been finally forfeited. However, it can take effect while further proceedings are determined, and there may be specific steps and time limits for challenging the order or protecting an interest in the property. Understanding what the order covers and obtaining advice early can be important.

Understand the order

The first step is to identify exactly what property is restrained, which legislation applies and what the order prevents you from doing.

Identify your interest

Ownership on paper may not tell the whole story. The circumstances in which property was acquired, funded, held and controlled can be relevant.

Act within the applicable process

Different applications have different legal requirements and procedures. Early advice allows the available options to be considered before important steps are missed.

THIRD-PARTY INTERESTS

When the property is yours too

Confiscation proceedings can affect people who are not accused of any offence. A spouse or partner may have an interest in a family home. A business partner may have an interest in company assets. Property may be jointly owned, held through a company or trust, or have been acquired using contributions from more than one person.

Where you claim an interest in restrained property, the question is not simply whose name appears on the title or account. The applicable legislation and the evidence concerning ownership, acquisition, control and the source of funds can all matter.

Mazzeo Lawyers can assess the nature of the interest being claimed, the orders affecting the property and the legal options available to protect that interest.

Under the Commonwealth Act, for example, a person claiming an interest in restrained property can apply for exclusion in specified circumstances, including after a restraining order has been made.

Your interest in the property

Whether you own, jointly own or have another legal or beneficial interest in the restrained property.

How the interest arose

Evidence about when and how your interest was acquired, including contributions towards the purchase or ownership of the property.

Connection to the alleged offending

The circumstances surrounding the property and whether your interest is independent of the conduct giving rise to the restraint.

Applying to protect your interest

Depending on the legislation and circumstances, an application may be available to exclude your interest or property from restraint or forfeiture.

Confiscation and proceeds of crime

Frequently asked questions

What does a restraining order prevent?

A restraining order generally prevents the property from being sold, transferred, mortgaged or otherwise dealt with while the order is in force. The precise terms depend on the order made by the court, so the starting point is to read the order carefully and understand exactly which property and which dealings it covers.

Yes. Restraining orders are commonly made early, often well before any criminal proceedings have concluded. Whether a conviction is ultimately required before the property can be forfeited depends on the regime and the type of order sought, which is one of the first things we identify.

A spouse, co-owner or other person with an interest in restrained property may be able to apply for exclusion of that interest. The court will consider the nature of the interest and how the property was acquired. The outcome depends on the evidence and the circumstances, and applications must be made within the time periods that apply.

Generally not while the restraining order is in force, unless the court permits it or the order is varied. In some circumstances an application can be made to vary the order, for example to allow a sale with the proceeds held pending the outcome. Whether this is possible depends on the regime and the terms of the order.

In some circumstances a court may allow restrained funds to be used for defined purposes, such as reasonable living expenses or the ongoing costs of a business. The rules differ between the Victorian and Commonwealth regimes and depend on the terms of the order, so this needs to be assessed in each matter.

Confiscation proceedings run alongside criminal proceedings but are separate from them, and the outcome of the charges can affect what happens to the property depending on the regime. Where both are on foot, we coordinate with the lawyers acting in the criminal matter so that steps taken in one do not create difficulties in the other.

Both regimes set time periods within which applications for exclusion or compensation must be made. The periods differ between regimes and depend on the order made. If an application is not made within the time that applies, restrained property can be permanently confiscated. We advise on the specific periods relevant to your matter at the outset.

A copy of the restraining order and any documents served with it, together with anything showing your interest in the property, such as a title search, mortgage documents, company or trust records, or bank statements showing how the property was acquired. If you do not have all of these, that is not a barrier to an initial conversation.

Contact Mazzeo Lawyers

Discuss a restraining or confiscation matter

If property you own or hold an interest in has been restrained, we would welcome the opportunity to discuss your circumstances. Because applications must be made within set time periods, an early conversation gives the widest range of options. All enquiries are handled in strict confidence, and an initial discussion does not commit you to anything. Our office is at

Level 8, 256 Queen Street, Melbourne VIC 3000.

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Call 03 9670 5999