COMMISSIONER OF NZ POLICE V BRADLEY & ORS HC ROT CIV-2011-463-000675

COMMISSIONER OF NZ POLICE V BRADLEY & ORS HC ROT CIV-2011-463-000675 [5 July 2012]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYCIV-2011-463-000675[2012] NZHC 1594IN THE MATTER OF an application pursuant to sections 20, 21,25, 34, 43, 44 and 52 of the CriminalProceeds (Recovery) Act 2009BETWEEN THE COMMISSIONER OF NEWZEALAND POLICEApplicantAND AARON MICHAEL BRADLEYFirst RespondentAND BRETT GEORGE ORMONDSecond RespondentAND WESTPAC NEW ZEALAND LIMITEDThird RespondentHearing: 5 July 2012Appearances: C Macklin for ApplicantG Burt on instructions from W Lawson for First RespondentNo appearances by or on behalf of Second and Third RespondentsJudgment: 5 July 2012JUDGMENT OF WOOLFORD JSolicitors/Counsel:Crown Solicitor, Rotorua.Lance Lawson, Rotorua.[1] On 31 October 2011 the Commissioner of Police filed an application for restraining and forfeiture orders against the respondent pursuant to the Criminal Proceeds (Recovery) Act 2009.[2] The application related to:(a) the land and buildings at 16 Jameson Avenue, Rotorua, owned by the second respondent but occupied by the first respondent;(b) the assets of the first respondent's company, Cutting Edge 2008 Limited, namely, a Toyota Ace van, registration UH6235, two ride on lawnmowers, and two trailers;(c) a Mitsubishi Canter light truck, registration YH6523;(d) cash of $104,370 located and seized by Police at 16 Jameson Avenue, Rotorua, during the search of that address on 10 August 2010; and(e) all funds in a Bonus Bond account under the Bond holder number 9903008 to value of $8,040.[3] The grounds on which the orders were sought were that the first respondent, Mr Bradley, had unlawfully benefited from significant criminal activity, namely, the supply of methamphetamine and the possession of methamphetamine for supply and that the property sought to be restrained was tainted property. Restraining orders were made by Priestley J on 25 October 2011.[4] The second respondent had initially filed a notice of opposition but by notice of discontinuance dated 13 December 2011, he stated he did not wish to proceed with his defence of the application by the Commissioner of Police.[5] The Commissioner has also advised Westpac New Zealand Limited, the third respondent, that it sought to restrain and forfeit the land and buildings at 16 JamesonAvenue, Rotorua, subject to the rights, title and interests of Westpac as registered mortgagee of the property being expressly excluded from restraint or forfeiture. On that basis, the third respondent neither consents nor opposes the application to restrain or forfeit the property and abides the decision of the Court.[6] The first respondent continued to oppose the application on the basis that:(a) Although the property at 16 Jameson Avenue, Rotorua, was owned by the second respondent, he had an equitable interest in it;(b) The property described in the application was not tainted. The funds used to purchase the property and the money located at 16 Jameson Avenue, Rotorua, were accumulated by legitimate means;(c) The first respondent's only significant criminal activity related to the period of 22 July 2010 to 10 August 2010;(d) There was no evidence to support the contention that the first respondent was involved in or benefited from significant criminal activity at the time the allegedly tainted property was acquired;(e) The first respondent would suffer undue hardship as a result of an order for forfeiture.[7] The application was set down for a day's hearing on 5 July 2012. On 4 July2012 a memorandum of counsel was received regarding a proposed settlement of the application for forfeiture. The parties proposed settlement on the following terms:Property Forfeited by Consent(a) The following property is forfeited by consent, pursuant to s 50 of the Criminal Proceeds (Recovery) Act 2009 (Act):(i) All the land and buildings of 16 Jameson Avenue, Rotorua, described in the certificate of title SA 39C/994 SouthAuckland Land Registration District being 703 square metres more or less on Lot 193 Deposited Plan South Auckland 10334; and(ii) Cash $104,370:- located and seized by Police at 16 Jameson Avenue, Rotorua, during the search of that address on 10 August 2010. This money is currently held by the Official Assignee.(b) This order is subject to the secured interests of the third respondent in the property specified at (a)(i) above.Property Retained by the First Respondent(c) By consent, Mr Bradley is to retain the following property:(i) Assets of the first respondent's company, Cutting Edge 2008Limited, as set out in the company accounts for the year ended 31 March 2009, namely:1. Two ride on mowers described in the depreciation schedule as an Oleo Mac Ride On Mower and Ride On lawnmower; and2. Two trailers described in the depreciation schedule as Trailer and Lawnmower Trailer.(ii) Mitsubishi Canter light truck, registration YH6523.(iii) All funds in Bonus Bonds account under the Bond holder number 9903008.Other Terms(d) All proceedings in respect of the Toyota Ace van, registration UH6235, are discontinued. The van was never seized by the Official Assignee.(e) Pursuant to s 35(e)(v) of the Act, the land and buildings specified at (a)(i) above are to be sold immediately.(f) There are no issues between the parties as to costs. Costs will lie where they fall.[8] Section 95 of the Act provides:(1) The Commissioner may enter into a settlement with any person as to the property or any sum of money to be forfeited to the Crown.(2) A settlement does not bind the parties unless the High Court approves it.(3) The High Court must approve the settlement if it is satisfied that it is consistent with—(a) the purposes of this Act; and(b) the overall interests of justice.[9] The approval by this Court of a proposed settlement is not a rubber stamping exercise. Parliament has entrusted the Court with a supervising jurisdiction aimed atensuring that settlements are consistent with Parliament's intent in enacting the statute.[10] Having read the documents filed with Court, I am satisfied that approving the settlement is consistent with the purposes of the Act and with the interests of justice because:(a) The substantial assets listed in the initial application are to be forfeited to the Crown. This is the cash sum of $104,370 as well as whatever equity remains in the land and buildings of 16 Jameson Avenue, Rotorua, after repayment of the Westpac mortgage.(b) The retention by the first respondent of the assets of his property maintenance business will enable him to resume work upon release from prison. There is also a real dispute about where the money came from to purchase the business, with documentation from third persons attached to the first respondent's affidavit evidencing the advance of funds from them to the first respondent.(c) Although the bonus bonds are to be retained by the first respondent, I am advised that he will be required to make a contribution to his legal aid costs from these funds.(d) There will be a considerable saving of time and especially cost with the settlement.[11] Accordingly, I am satisfied that the settlement provides for the forfeiture of the property representing the value of the unlawfully derived income and, in the circumstances of the case, it is in the overall interests of justice.[12] There will be orders in terms of the draft order submitted to Court this morning, which repeats the terms of the proposed settlement set out in [7] above._________________________Woolford J