Commissioner of Police v Vincent
| Jurisdiction | New Zealand |
| Judge | Allan J |
| Judgment Date | 28 March 2012 |
| Neutral Citation | [2012] NZHC 562 |
| Docket Number | CIV 2012-404-925 |
| Court | High Court |
| Date | 28 March 2012 |
and
[2012] NZHC 562
CIV 2012-404-925
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
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.
M Harborow for applicant
No appearance for first respondent
T J Rainey for second respondent
JUDGMENT OF Allan J
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.
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.
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.
On 29 February 2012, the applicant made an application on notice for the same orders which had earlier been granted without notice.
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.
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.
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.
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.
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.
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 serve notice of the application on them.
By virtue of s 39(1) of the Act, a restraining order made without notice under s 22 ceases to be in force on the date that is the end of the period of seven days commencing on the date on which the restraining order is made. But if an applicant takes the steps laid down in s 39(2) within the prescribed time, then the initial restraining order continues in force beyond the end of the seven day period.
Section 39(2) provides:
(2) However, if, before restraining order A expires, an application is made with notice for a restraining order on notice (“restraining order B”) in relation to the same property to which restraining order A relates (whether or not the application also relates to any other property), restraining order A continues in force until the application for restraining order B is finally disposed of.
An applicant for a second restraining order must prosecute the application with all due diligence, failing which the Court is empowered to strike the proceedings out. 1 Further, the Court is enjoined to ensure that the application is dealt with speedily, so far as it is practical and consistent with the interests of justice to do so. 2
Section 37 provides:
37 Duration of restraining orders and further orders
(1) A restraining order expires on the earlier of the following:
(a) the date that is the end of the period that is 1 year after the date on which the restraining order is made:
(b) the date of the making or declining of a forfeiture order associated with the same property.
(2) Despite subsection (1),—
- ...
To continue reading
Request your trial
-
Vincent and Another v Commissioner of Police
...dismissed. The appellants must pay the respondent costs for one standard appeal on a band A basis, plus usual disbursements. 1 Commissioner of Police v Vincent [2012] NZHC 2581 at [78(a)] [ Vincent 2 At [78(c)]. 3 Before Priestley J and in this Court, the Commissioner also relied on s 24 o......
-
CIV HC AK CIV 2012-404-925
...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 ......