C.P. Criminisi

The applicant mortgagee brought a motion to vary a restraint order under the Controlled Drugs and Substances Act to permit the sale of the subject property under power of sale.

The Crown consented to the sale, but the respondent owner opposed it, arguing the property had increased in value and disputing the mortgagee's claimed costs.

The court granted the motion to permit the sale, directing that the net proceeds be paid to the Crown.

The court declined to approve the mortgagee's claimed costs of over $388,000, directing that those funds be held by the Crown pending an assessment under Rule 58 and the final determination of the forfeiture proceedings.

A financial institution applied to vary a restraint order made under the Controlled Drugs and Substances Act to permit a power of sale of property and payment of its mortgage debt from the proceeds before remitting the balance to the Crown.

The Attorney General opposed the variation, arguing that the mortgagee must first establish lack of complicity or collusion in the underlying drug activity.

The court held that the restraint order permitted sale by the mortgagee but required that all net proceeds, subject only to ordinary costs of sale, be remitted to the Crown unless and until the mortgagee established its entitlement through statutory restoration proceedings.

The court declined to determine the mortgagee’s innocence on the limited record and directed that such issues be addressed in the pending forfeiture proceedings.

The requested variation was therefore refused.