Commissioner of Police v Vincent

JurisdictionNew Zealand
CourtHigh Court
JudgeAllan J
Judgment Date28 Mar 2012
Neutral Citation[2012] NZHC 562
Docket NumberCIV 2012-404-925

[2012] NZHC 562

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV 2012-404-925

Between
Commissioner of Police
Applicant
and
Lee Vincent
First Respondent

and

Dianne Erlene Ashby
Second Respondent
Appearances:

M Harborow for applicant

No appearance for first respondent

T J Rainey for second respondent

Application to rescind a without notice restraining order issued under s22 Criminal Proceeds (Recovery) Act 2009 (“CPRA”) (application for restraining order without notice) — without notice orders expired after seven days unless on notice order applied for within that time — on notice application could not be served on respondents within prescribed time limit — whether applicant was obliged under s39(2) CPRA (order under s22 continued in force until application for on notice order disposed of) to both file and serve the on-notice application within the statutory time limit.

Held: Section 39(2) CPRA had to be read alongside s39(1). The intention of the legislature was to distinguish between applications made without notice (and therefore not to be served), and those made on notice (which were intended to be served). The expression “with notice” in s39(2) did not denote the service obligations or impose an obligation that service had to be effected with the seven day period. Where the Act made specific provision for service, it was explicit.

Although Parliament's intention was to require the applicant to act with all due speed in making and prosecuting an on-notice application, the key provision in achieving the statutory purpose was to require that the application be filed within the stipulated seven day period. There was no obligation to serve within that period. Once the application was filed, service obligations arose under r7.22 High Court Rules (prompt service of any application and supporting affidavit on every party).

A's interpretation of s39(2) would give rise to serious practical difficulties. The applicant might often, at the time of filing an application, be uncertain as to the identity of all of the parties to be served and those who might have an interest in the property sought to be restrained. If A was correct, any person subsequently identified as having an interest, who was served outside the seven day period, would be able to argue that the without notice order had lapsed. There were often difficulties in serving notices, such as in the present case, where the first respondent was believed to be in Thailand but there was no address for service. The provisions of s39 would become unworkable.

In addition, given that a seven day extension was available under s41 CPRA (extending duration of restraining order) without notice, there was no justification to impose service obligations on the applicant within the same seven day period, where the application was made under s39(2).

The legislation was designed to deter serious crime and the Courts ought to construe and apply the Act “as effectively as reasonably possible” ( R v Pedersen). Upholding A's contentions would limit the practical effectiveness of the legislation.

Application to rescind restraining order dismissed.

JUDGMENT OF Allan J

Introduction
1

On 23 February 2012, the Commissioner of Police applied by way of without notice application for restraining orders against the respondents under the Criminal Proceeds (Recovery) Act 2009 (the Act). The affidavit evidence in support of that application disclosed alleged significant criminal activity as defined in s 6 of the Act. The police case is that apparently legitimate activities have been used as a facade for the manufacture and distribution of “Ecstasy type pills” containing Class B and C controlled drugs. The applicant adduced evidence of significant items of property and substantial movements of cash, all claimed to be associated with these illegal activities.

2

The respondents to the application were Mr Lee Vincent (also known as Kemp Warwick Ashby), as first respondent, and Dianne Erlene Ashby, as second respondent. Ms Ashby is the mother of the first respondent.

3

On 23 February 2012, MacKenzie J made an order in chambers on the applicant's without notice application, in the following terms:

  • (a) The following property shall be treated for the purpose of these orders as though the first respondent, Lee Vincent, has an interest in it, and shall not be disposed of or otherwise dealt with by any person other than as provided for in this order, and is to be under the Official Assignee's custody and control:

    • (i) the proceeds of the sale (Sale) of 1/288 Lake Road, Hauraki, North Shore (certificate of title NA28D/215) in February 2012 (after repayment of Pepper New Zealand (Custodians) Ltd as mortgage under mortgage 7540284.2);

    • (ii) If the Sale does not proceed, all interests in the property at 1/288 Lake Road, Hauraki, North Shore (certificate of title NA28D/215) excluding the interest of Pepper New Zealand (Custodians) Ltd as mortgagee under mortgage 7540284.2;

    • (iii) The sum of $149,925.00 held on behalf of Mr Vincent by Stepping Stone Finance Limited;

    • (iv) The following Bangkok Bank bank accounts in Thailand: 5527026834 and 096 0 27905 7 in the name of Lee Vincent;

    • (v) The property at room 69, 5 th floor, 700/69 Naklua Soi 18/1, Pattaya, Thon Buri 20150, Thailand.

  • (b) The following property shall be treated for the purpose of these orders as though the second respondent, Dianne Ashby, has an interest in it, and shall not be disposed of or otherwise dealt with by any person other than as provided for in this order, and is to be under the Official Assignee's custody and control.

    (i) All interests in the property at 2/288 Lake Road, Hauraki, North Shore (certificate of title NA28D/216) excluding the interest of Pepper New Zealand (Custodians) Ltd as mortgagee under mortgage 7570162.2.

4

On 29 February 2012, the applicant made an application on notice for the same orders which had earlier been granted without notice.

5

The on-notice application was served on the second respondent's solicitors on 2 March 2012. No service has been effected on the first respondent, who is believed to be in Thailand. The applicant intends to make an application for substituted service on him.

6

The on-notice application was set down for mention in the Duty Judge List on Monday 12 March 2012. Mr Rainey, counsel for the second respondent, filed a notice of opposition, together with a notice of application to rescind the earlier without notice restraining order. This present judgment is concerned with the second respondent's contention, appearing in the application to rescind, that the order made by MacKenzie J on 23 February 2012 has lapsed by reason of the applicant's failure to serve the subsequent on-notice application within the prescribed time limit.

7

In passing, it is appropriate to note Mr Rainey's advice to the Court that the second respondent will oppose the on-notice application on the merits, insofar as it concerns her property at 2/288 Lake Road, Hauraki, North Shore. She says that she has no knowledge of any significant criminal activity. Nor, she argues, are there reasonable grounds to believe that she has unlawfully benefited from any such activity. Nevertheless, the second respondent has, through Mr Rainey, undertaken to the Court, that she will take no step to dispose of that property without giving 14 days prior notice to the applicant's solicitors.

8

For present purposes those matters are of secondary significance only. The current question is whether, in order to preserve the order made on 23 February 2012, the applicant was obliged both to file and serve a subsequent on-notice application within the statutory time limit. The second respondent argues that he has failed to do so with the result that the order of 23 February has lapsed. Mr Harborow mounts a contrary argument.

The statutory scheme
9

An applicant for a restraining order may apply on notice or without notice. Provision for these alternative modes of application is made in ss 21 and 22 of the Act, which respectively provide:

21 Application for restraining order on notice

(1) An applicant for a restraining order must,—

  • (a) so far as is practicable, serve a copy of the application on any person who, to the knowledge of the applicant, has an interest in the proposed restrained property (including, if applicable, the respondent); and

  • (b) serve a copy of the application on the Official Assignee.

(2) The court hearing an application for a restraining order may, at any time before the application is finally determined, direct the applicant to serve a copy of the application on a specified person or class of persons, in the manner and within the time that the court thinks fit.

22 Application for restraining order without notice

(1) A court that receives an application for a restraining order may, on the request of the applicant, consider the application without notice being given to any or all of the persons mentioned in section 21(1)(a) if the court is satisfied that there is a risk of the proposed restrained property being destroyed, disposed of, altered, or concealed if notice were given to the person or those persons.

(2) If an application is made for a restraining order without notice, the court must, so far as it is practicable and consistent with the interests of justice, ensure that the application is dealt with speedily.

(3) Any provisions of this subpart that relate to restraining orders applied for on notice apply, with any necessary modifications, to restraining orders applied for without notice.

10

In the present case, the applicant resorted to s 22. Accordingly, MacKenzie J made the order without hearing from either of the respondents, and indeed before any step was taken to...

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2 cases
  • Vincent and Another v Commissioner of Police
    • New Zealand
    • Court of Appeal
    • 3 September 2013
    ...above n 1, at [32]. 4 Criminal Proceeds (Recovery) Act, ss 21, 22 and 25. 5 As set out by Allan J in Commissioner of Police v Vincent [2012] NZHC 562 at [3] [ Vincent (HC) — lapse of restraining 6 At [34]. 7 On the basis that the Commissioner had not led evidence of efforts made to serve Mr......
  • CIV HC AK CIV 2012-404-925
    • New Zealand
    • High Court
    • 28 March 2012
    ...HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2012-404-925 [2012] NZHC 562 Hearing: BETWEEN COMMISSIONER OF POLICE Applicant AND LEE VINCENT First Respondent AND DIANNE ERLENE ASHBY Second Respondent 12 March 2012 Appearances: M Harborow for applicant No appearance for first respondent T ......

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