Victorian Consolidated Legislation

Confiscation Act 1997 - SECT 72

Charge on property subject to restraining order or declaration

72. Charge on property subject to restraining order or declaration



(1) If-





   (a)  a court makes a restraining order in respect of all or some of the
        property of a person; and

   (b)  a court, whether before or after the making of the restraining order,
        makes a pecuniary penalty order against that person-

then there is created, on the making of the pecuniary penalty order or the
restraining order, whichever is the later, a charge on all the property of
that person to which the restraining order applies to secure the payment to
the State of the pecuniary penalty.

(2) If a court makes a declaration under section 70(1), then there is created,
on the making of the declaration, a charge on all the property to which the
declaration applies to secure the payment to the State of the pecuniary
penalty.

(3) A charge created by subsection (1) or (2) on property ceases to have
effect if any of the following occur-

   (a)  the pecuniary penalty order is discharged;

   (b)  the property is disposed of under section 75;

   (c)  the property is disposed of with the consent of the court that made
        the pecuniary penalty order or, if a trustee has been directed to take
        control of the property, with the consent of the trustee;

   (d)  the property is sold to a purchaser in good faith for value who, at
        the time of the purchase, had no notice of the charge.

(4) A charge created by subsection (1) or (2) on property-

   (a)  except as provided by section 42(1), is subject to every encumbrance
        to which the property was subject immediately before the pecuniary
        penalty order or declaration (as the case may be) was made but has
        priority over all other encumbrances; and

   (b)  subject to subsection (3), remains on the property despite any
        disposal of the property.

(5) If-

   (a)  a charge is created by subsection (1) or (2) on property of a
        particular kind; and

   (b)  any law of Victoria provides for the registration of charges on
        property of that kind-

the applicant for the pecuniary penalty order or declaration may cause the
charge so created to be registered under that law.

(6) If the charge is registered under subsection (5), a person who purchases
the property after the registration of the charge is, for the purposes of
subsection (3)(d), to be taken to have had notice of the charge.

(7) If-

   (a)  a declaration under section 70(1) applies to property of a particular
        kind; and

   (b)  any law of Victoria provides for the registration of title to, or
        encumbrances on, or documents relating to the title to property of
        that kind-

the relevant registration authority under that law must, on application to it
by the applicant for the declaration, record on the register the prescribed
particulars of the declaration.

(8) Without limiting subsection (7), if a declaration relates to land under
the operation of the Transfer of Land Act 1958, a caveat may be lodged under
section 89 of that Act by any person mentioned in that section in relation to
that order.





(9) For the purposes of subsection (8) and without limiting that subsection-

   (a)  the applicant for the declaration; or

   (b)  if under section 71 a court directed a person to take control of the
        property, that person-

is deemed to be a person mentioned in section 89 of the
Transfer of Land Act 1958.