CONFISCATION ACT 1997 - SECT 72 Charge on property subject to restraining order or declaration

CONFISCATION ACT 1997 - SECT 72

S. 72(1) amended by No. 43/1998

s. 25(c).

    (1)     If—

S. 72(1)(a) amended by No. 43/1998

s. 25(a).

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

S. 72(1)(b) amended by No. 43/1998

s. 25(b).

        (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.

S. 72(3) amended by No. 68/2010 s. 33.

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

        (a)     the pecuniary penalty order is discharged;

S. 72(3)(ab) inserted by No. 44/2022 s. 34(1).

        (ab)     the restraining order is set aside or ceases to be in force with respect to the property;

        (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.

S. 72(5) amended by No. 44/2022 s. 34(2).

    (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 or a prescribed person or a person belonging to a prescribed class of persons may cause the charge so created to be registered under that law.

S. 72(5A) inserted by No. 44/2022 s. 34(3).

    (5A)     In the case of a charge on land that is under the operation of the Transfer of Land Act 1958 , and that is registered in accordance with subsection (5), the Minister must give written notice to—

        (a)     a person whose interest in land is subject to a charge created by subsection (1) or (2); and

        (b)     any other person recorded in the Register kept under the Transfer of Land Act 1958 as having a registered interest in the land that—

              (i)     the land is charged under this section with the amount stated in the notice; or

              (ii)     the charge has been removed.

    (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.

S. 72(7) amended by No. 44/2022 s. 34(4).

    (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 or a prescribed person or a person belonging to a prescribed class of persons, 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 .