THE COMMISSIONER OF THE NEW ZEALAND POLICE v VEEVERS [2014] NZHC 1344

THE COMMISSIONER OF THE NEW ZEALAND POLICE v VEEVERS [2014] NZHC 1344 [16 June 2014]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV 2014-409-142[2014] NZHC 1344IN THE MATTER OF an application pursuant to ss 22, 24 and 25Criminal Proceeds (Recovery) Act 2009BETWEEN THE COMMISSIONER OF THENEW ZEALAND POLICEApplicantAND GIOVANNI SHANE ROBERTVEEVERS (AKA WILLIAMS)First RespondentKELLY BARBARA VEEVERS(AKA WILLIAMS)Second RespondentHearing: 12 June 2014(On the papers)Counsel: H McKenzie for ApplicantJ J Brandts-Giesen for RespondentsJudgment: 16 June 2014JUDGMENT OF MANDER JIntroduction[1] The Commissioner of Police makes application that property owned by the first and second respondents situated at 35 Sidey Quay, Kaiapoi, and a 2008 black Chrysler motor vehicle owned by the first respondent be restrained and placed into the custody and control of the Official Assignee.[2] In respect of the Chrysler motor vehicle, a further order is sought under s 35(e)(v) of the Criminal Proceeds (Recovery) Act 2009 (the Act) that the vehicle be sold in order to preserve its value.The application for a restraining order[3] The Commissioner's application for a restraining order is based on ss 24 and 25 of the Act. Section 24 requires the Court to be satisfied it has reasonable grounds to believe that the property is "tainted property". Under s 25 the Court must be satisfied that it has reasonable grounds to believe that the respondent has unlawfully benefitted from significant criminal activity and has an interest in the property sought to be restrained.[4] Tainted property is defined in s 5 as follows:tainted property—(a) means any property that has, wholly or in part, been—(i) acquired as a result of significant criminal activity; or(ii) directly or indirectly derived from significant criminal activity; and(b) includes any property that has been acquired as a result of, or directly or indirectly derived from, more than 1 activity if at least 1 of those activities is a significant criminal activity.[5] Significant criminal activity is defined in s 6:6 Meaning of significant criminal activity(1) In this Act, unless the context otherwise requires, significant criminal activity means an activity engaged in by a person that if proceeded against as a criminal offence would amount to offending—(a) that consists of, or includes, 1 or more offences punishable by a maximum term of imprisonment of 5 years or more; or(b) from which property, proceeds, or benefits of a value of $30,000 or more have, directly or indirectly, been acquired or derived.(2) A person is undertaking an activity of the kind described in subsection (1) whether or not—(a) the person has been charged with or convicted of an offence in connection with the activity; or(b) the person has been acquitted of an offence in connection with the activity; or(c) the person's conviction for an offence in connection with theactivity has been quashed or set aside.(3) Any expenses or outgoings used in connection with an activity of the kind described in subsection (1) must be disregarded for the purposes of calculating the value of any property, proceeds, or benefits under subsection (1)(b)[6] Section 7 of the Act provides:7 Meaning of unlawfully benefited from significant criminal activityIn this Act, unless the context otherwise requires, a person hasunlawfully benefited from significant criminal activity if the person has knowingly, directly or indirectly, derived a benefit from significant criminal activity (whether or not that person undertook or was involved in the significant criminal activity).[7] The first respondent, Giovanni Williams, has pleaded guilty to charges of cultivation of cannabis and possession of equipment under the Misuse of Drugs Act 1975 which carry maximum penalties of 7 years and 5 years imprisonment respectively. The second respondent is his wife, Kelly Williams.[8] The cultivation was carried out at the Sidey Quay property. When Police executed a search warrant at the address in February 2014 they found a total of 49 cannabis plants in three differing stages of maturity growing under lights with timers, fans and venting. There was a substantial amount of cannabis cultivation equipment. The cannabis growing operation was well established.[9] In support of his application, the Commissioner relies upon affidavit evidence from Police Senior Investigator Wendy Riach and Detective Duncan Bull. TheCommissioner's case is that the property the subject of the application is tainted property and/or that the respondents have unlawfully benefitted from significant criminal activity. This assessment is primarily based on the respondents having available to them significant funds which did not match either their income as declared to the Inland Revenue Department or which is able to be traced to legitimate sources. This ongoing pattern occurs over a number of years.[10] A review of the respondents' taxation history reveals a combined averageannual income for the past eight years of little over $13,500 and, taking into account Family Tax Credits, an average income of little more than $19,700 per year.[11] Financial analysis shows that from 1 April 2007 to 21 January 2014 the total deposits into the respondents' bank accounts from unknown sources amounted to $119,478 and total cash purchases over the same period of $41,448. It is theCommissioner's case that the respondents have received an unlawful benefit of a little less than $161,000.[12] There is ancillary evidence relating to Mr Williams depositing large amounts of cash into his BNZ current account throughout 2013. This cash smelled of cannabis. On the same days as the deposits of cash there were electronic transfers to the respondents mortgage account, reducing the amount owed in respect of the loan secured by the mortgage over the Sidey Quay property.[13] By formal notice dated 19 May 2014, the respondents have consented to the making of a restraining order with respect to the Kaiapoi property. They however oppose the making of such an order with respect to the Chrysler motor vehicle and oppose the motor vehicle being sold in order to preserve its value.[14] The hearing of the Commissioner's applications has therefore focussed on theapplication for a restraining order in respect of the Chrysler motor vehicle and whether, if such an order is made, the vehicle should be sold.The respondents' evidence[15] The respondents have both filed affidavits together with an affidavit in the name of Shiloh Carroll. These affidavits provide accounts of the various vehicles traded by the respondents.[16] The first respondent has deposed that the Chrysler vehicle was purchased in September 2011 for the sum of $22,000 which was paid for by way of an extension to the respondents' mortgage of $20,000. He believes it is now worth perhaps $15,000 and accepts, like all motor vehicles, it is depreciating with time.[17] The first respondent states that at the time of his arrest in February 2014 he and his wife had three vehicles, including a small BMW motor vehicle which had been purchased for Mrs Williams in September 2011 by way of a standing loan facility. It is his evidence that the BMW was expensive to maintain, that his wife did not like driving it in any event, and that expensive damage was caused to the suspension as a result of the rough roads caused by the earthquakes.[18] As a result of these issues, a Ford motor vehicle was purchased in July 2013 which is now used by the first respondent's wife to travel to work on a daily basis.$17,000 was advanced from the respondents' mortgage to pay for this vehicle. The first respondent deposed in his affidavit that $25,000 was advanced but that only $20,000 was spent. That comprised $17,000 to buy the Ford and $3,000 for what is described as miscellaneous purchases.[19] The first respondent deposed that it was his intention to sell the BMW upon the purchase of the Ford, but that it took some six months of advertising on Trade Me before it sold. The third car was the Chrysler motor vehicle which the first respondent claimed in his affidavit was financed in the manner previously described.[20] Between Mr Williams arrest and the execution of the interim restraining order obtained without notice, the BMW was sold for $10,050 to Privateer Fisheries Ltd based in Dunedin. The proceeds of the sale were deposited into the respondent'sbank account on 17 March 2014. The respondents claim that the BMW motor vehicle was not tainted property and that the proceeds of its sale were spent on livingexpenses and lawyers' bills.[21] Mr Williams states that he trades for profit various items both on Trade Me and offline which involve cash sales, and that he has received financial help from his family, including his mother who lives in Australia. He does not understand that monies generated from what he describes as his "hobby" (dealing in goods) to be taxable. Similarly, cash is said to be obtained from mutton birding.[22] Mr Williams states in his affidavit that the Chrysler motor vehicle is needed because the family requires a second car. He deposes that there is no direct bus routefor his wife to travel to Christchurch to her work. He refers to family commitments regarding the care of his grandfather in Rangiora who is terminally ill and visits to his grandmother in Ohoka two to three times a week. Mr Williams further deposes to parental commitments regarding his children and the need to take them to and from school and to attend sports activities. This is said to be becoming increasing pressing in the winter months. The first respondent emphasises the need to drive his children to after school activities, to sport and to collect them from school in his capacity as the chief caregiver while his wife is at work.[23] Until relatively recently Mr Williams has had the use of a borrowed vehicle but this has now had to be returned. The termination of this arrangement is confirmed in the affidavit of Shiloh Carroll who lent the vehicle to the respondents. Mr Williams states his intention to oppose the application for forfeiture and conteststhe Crown's analysis of the respondents' income and outgoings and the accumulation of assets and their equity in those assets.[24] Finally, he states his belief that the Crown has sufficient security in the equity of the Kaiapoi house which has a value of some $390,000 and a minimal debt of only $38,000 secured against it. He states that this asset will cover any conceivable forfeiture order.[25] Mrs Williams in her affidavit deposes to being unaware of her husband selling cannabis and that she would have known if he had done so. In effect, the second respondent deposes her lack of knowledge of the cultivation of the cannabis in the back room of the couple's double garage.[26] Mrs Williams confirms that her husband is a regular buyer and seller of items and that he goes mutton birding. She confirms that a flexi loan facility was available to the couple and that many of the items in their home were purchased second-hand and are not expensive.[27] In respect of the motor vehicles, she stated that transactions in relation to the BMW were financed through bank savings, and confirmed the unsuitability of the vehicle for the rough roads around Kaiapoi and Christchurch and the damage to thevehicle's suspension as being the reason for its sale and the earlier purchase of the Ford. She deposes that the Chrysler and the Ford are vehicles suited to the rough roads and large enough to enable them to transport their family and friends.The Commissioner's reply evidence[28] In response to the affidavit evidence filed by the respondents, Ms Riach swore an affidavit in reply. In that affidavit she contested the details provided by the first respondent in respect of the BMW transaction and other matters.[29] Having made enquiries with the previous owners of both the BMW and the Chrysler and examined bank accounts operated by the respondents, Ms Riach found the following:(a) The respondents operated a joint mortgage account against which there had been only two drawings of funds since 2006. An amount of $9,400 was withdrawn on 14 September 2011. No further mortgage drawings occurred until 17 July 2013, when the amount of $25,000 was withdrawn.(b) The $9,400 of 14 September was transferred to the respondents' jointcurrent account on that date. Two days later, on 16 September, the current account received a deposit from the Earthquake Commission of $19,013.32.(c) Six small withdrawals of cash were made from the respondents' joint current account between 7 and 14 September 2011, they total $2,450 and were funded by a direct credit from Inland Revenue on 17 August 2011.(d) Subsequently, large cash withdrawals were made of $20,000 on 21 September 2011 and $9,000 on 27 September 2011 from the joint current account. This gave the respondents a total of $31,450 cash at their disposal.[30] Enquiries from the previous owners of the BMW and the Chrysler revealed the following. The BMW was purchased in Auckland for $17,000 in cash. The ownership details were changed on 27 September 2011. The Chrysler motor vehicle was purchased by the first respondent for $22,500, again in cash, on 6 October 2011.[31] Ms Riach concludes that the cash used by the respondents to purchase the two vehicles within two weeks of each other totalled $39,500. The cash withdrawn from the BNZ accounts totals $31,450. This leaves a shortfall of $8,050 to complete the purchase of the Chrysler on 6 October. Ms Riach believes this cash, at least, was derived from significant criminal activity as neither the first or second respondent have given an explanation for the $8,050 shortfall. The couples declared income to IRD for the tax year ended 31 March 2012 was $17,873.62 for a family of five.[32] Further enquiries were made by Ms Riach in respect of the Chrysler. At the time of the vehicle seizure on 19 March 2014, the first respondent told Detective Duncan Bull of the Southern Asset Recovery Unit that the vehicle had been "put on the mortgage and the wheels were imported from the US".[33] Ms Riach in her affidavit makes the following points. The low profile tyres cannot be regarded as sensible or suitable for travelling on very rough or uneven surfaces if the earthquake damaged suburbs of Christchurch were considered a particular problem. At the date Ms Riach swore her affidavit she had not yet locatedany withdrawals in the respondents' known bank accounts or purchases on theircredit card which would correlate with the purchase of mag wheels. Presumably, they were purchased in cash.[34] Ms Riach makes observations in relation to the cost of running the Chrysler vehicle and compares information she has obtained regarding repair costs associated with the vehicle and the concerns of the respondents regarding the expense of maintaining the BMW. The first respondent in his oral evidence disputed Ms Riach's observations. The Court is not in a position to resolve those issues whichare largely peripheral.[35] Enquiries from Ms Riach of Trade Me Limited has revealed that from her analysis the respondents have sold some $46,678.85 worth of goods and purchased $57,931.73 worth of goods between April 2007 and March 2014. Her preliminaryconclusion is that the respondents' Trade Me dealings cannot be considered anincome source.[36] Ms Riach deposes that the respondents presently have available to them a 2009 Ford Falcon motor vehicle which is a large, valuable and reliable vehicle suitable for family transportation. This vehicle is compared to the Chrysler which is said to be a luxury item. Again, I am not in a position to make an accurate assessment of the validity of that observation which might be considered somewhat subjective and is clearly open to debate.[37] Ms Riach observes that if the civil proceedings involving the Chrysler are to be protracted there will be ongoing costs associated with the storage, insurance and maintenance of the vehicle which are likely to mount. Over such a period there will be depreciation of the vehicle which will reduce the likely return to the community from any potential forfeiture proceeding. The costs associated with storing the vehicle over a two year period have been estimated as being in the region of $5,000.[38] The Official Assignee has obtained a valuation of the Chrysler as at March 2014 from Turners Auctions. Its assessment is a value of between $13,000 and $15,000. This is accepted by the respondents as realistic.[39] The concerns expressed on behalf of the Commissioner by Ms Riach in her affidavit should the vehicle be returned on conditions to the respondents is that they would have little incentive to maintain the vehicle in its current condition, nor to beresponsible for the vehicle's roadworthiness or insurance. It is considered there would be difficulties in monitoring any conditions placed on the use of the vehicle.[40] Enquiries made by Ms Riach have revealed that the purchaser of the BMW, Privateer Fisheries Ltd, which was transferred to it between the time of the firstrespondent's arrest and the execution of the without notice interim restraining order,is owned by the first respondent's natural father, David Williams.Evidence adduced at the hearing[41] At the hearing of the application, Mr Williams gave further evidencesupplementary to his affidavit and in response to Ms Riach's affidavit. Ms Riachwas also cross-examined by the respondents' counsel, Mr Brandts-Giesen.[42] In oral evidence Mr Williams' corrected the information contained in his affidavit. He accepted that the mortgage facility had not been used to pay for the Chrysler. What he had described as an extension to the mortgage of $20,000 had in fact been a $20,000 withdrawal from the joint current account after the deposit of some $19,000 by EQC on 16 September 2011. A few days before, the sum of $9,400had been withdrawn from the loan facility as referred to in Ms Riach's affidavit.[43] Mr Williams claimed that the shortfall identified by Ms Riach in the funds required to purchase both the Chrysler and the BMW was accounted for by the priorsale of his wife's vehicle (a Falcon) for $3,500 and his own Ford Fairlane motorvehicle for $6,000.[44] Mr Williams went into further detail regarding the initial reason for purchasing the BMW and why it ultimately proved unsuitable. He did not however provide any further particulars relating to sales of the Falcon and Ford Fairlane which provided the balance of at least $8,000 in cash for the purchase of the Chrysler and BMW. Mr Williams was cross-examined about modifications to the Chrysler and the sale of the BMW to his biological father between the time of his arrest and the execution of the without notice interim restraining order.[45] When asked about why a second car had not been purchased with the proceeds of the sale of the BMW which would have been available at the time the Chrysler was seized by Police, Mr Williams stated that the money was needed fordifferent activities, including lawyers' bills and other "different things".Commissioner's submissions[46] Ms McKenzie on behalf of the Commissioner stressed that a restraining order was only a temporary order which requires reasonable grounds to believe that thestatutory criteria has been satisfied. She submitted that it is appropriate to restrain the Chrysler on the basis that at this point the Police investigations as detailed in the supporting affidavits show there are reasonable grounds to believe that the respondents have unlawfully benefitted from significant criminal activity and that the first respondent has an interest in the Chrysler. Alternatively, there are reasonable grounds to believe that the Chrysler motor vehicle is tainted property.[47] Ms McKenzie submitted that notwithstanding the respondents' consent to arestraining order in respect of the Kaiapoi property, these were reasonable grounds to believe the Chrysler motor vehicle was tainted property and that it may still be required to satisfy any potential profit forfeiture order that the Commissioner may apply for. The current and preliminary calculation for any such order is $160,926.78. While the respondents have, it would appear, at least $300,000 in equity in the Kaiapoi property, the calculation of the amount of any profit forfeiture order is preliminary. Furthermore, it is understood that the property is the family home and it is possible that application will be made for relief from forfeiture which would erode the funds available to satisfy any profit forfeiture order.[48] Should the equity in the family home on any application for relief be divided along matrimonial property lines there is likely to be a shortfall in the equity available to the first respondent to satisfy a profit forfeiture order as presently calculated. It is submitted the Commissioner's position and ability to satisfy aprospective profit or asset forfeiture order should not be prejudiced at the temporary stage of restraint by the Chrysler motor vehicle being excluded.Submissions on behalf of the respondents[49] Mr Brandts-Giesen cautioned the Court from placing undue weight on the interpretation of the respondents' financial affairs. He submitted the Commissioner'sinvestigation was reliant on hearsay evidence from a number of sources. Drawing inferences from the face of records without regard to the context and background to that documentation did not necessarily present an accurate picture. Whileacknowledging the Court of Appeal's remarks in Vincent v Commissioner of Police,11 Vincent v Commissioner of Police [2013] NZCA 412.where the Court observed the need to allow otherwise inadmissible material to be admitted in support of applications for restraining orders, lest a very elaborate evidentiary basis for such orders be required, Mr Brandts-Giesen submitted the weight to be placed on such evidence by the Court should be tempered.[50] It was emphasised that the first respondent pleaded guilty only to a charge of cultivation and was not charged with possession of cannabis for supply. The first respondent denies being a dealer of cannabis. It was submitted that there was not any direct evidence that Mr Williams' assets have been created from the illegal cultivation or sale of drugs, and this was merely a matter of inference drawn by the Police analysis.[51] Mr Brandts-Giesen asked the Court to compare the relatively modest value of the Chrysler car with the equity that the respondents have in their home which in hissubmission was sufficient to protect the Crown's position, and that requiring theChrysler to be the subject of restraint does not achieve the purpose of a restrainingorder to preserve the "status quo".Analysis[52] The Commissioner's case is based upon an analysis of the income availableto the respondents in comparison to their outgoings. On the evidence currently available it is apparent that the respondents had access to an undeclared source of funds. The respondents have sought to account for that cash income in various ways, including family assistance, mutton birding and extensive trading in legitimate goods. Enquiries by the Commissioner, while only preliminary, do not support the plausibility of the latter explanation. Little detail has been provided by the respondents as to how mutton birding could account for such a large source of cash, nor any detail supplied in respect of sums made available from the wider family.[53] I am conscious of the submission made on behalf of the respondents that they have not had access to documentation and records seized by the Police. The changing accounts of the respondents as to the source of the funds for the BMW and Chrysler purchases in 2011 may have little significance given Ms Riach's analysis ofwhere the larger components of this monies were sourced. Even so, while it mightbe appropriate to give the respondents the benefit of the doubt in respect of the differing accounts provided, the Police analysis still reveals a significant shortfall in terms of where the cash has been sourced to make these large purchases over the course of this limited period in September 2011.[54] This shortfall in the funds needed to purchase the Chrysler and the BMW have attempted to be explained by Mr Williams by reference to the sale of two other vehicles at that time, however, as I have already observed, no detail has been provided about those transactions, their timing or the amounts obtained. Therespondents' bank statements which might be thought to record entries relevant to those sales are available to them, yet that documentation was not referred to by them either in their affidavits or during the course of oral evidence. The first time the sale of these vehicles and the use of the proceeds to buy the BMW and Chrysler wasreferred to by Mr Williams was in oral evidence, after Ms Riach's analysis disclosedthe $8,000 shortfall.[55] As Miller J observed in Commissioner of Police v Doorman,2 an asset (in that case a house) may be tainted even though it was only partially acquired from significant criminal activity. Tainted property includes property that was derived in part from relevant criminal activity and it does not matter that the asset was also derived from legitimate sources, although that may be taken into account when considering relief against forfeiture.[56] The BMW was sold for $10,000. When regard is had to how earlier motor vehicle purchases had been financed by the sale of previous vehicles, and the evidence given by Mr Williams of the other sources of funds, including from family members, it is difficult to perceive, notwithstanding the need to fund legal advice and representation, why some modest replacement vehicle was not obtained at thattime or shortly thereafter. The only significant change in the respondents'circumstances was that Mr Williams cannabis cultivation operation had been terminated.2 Commissioner of Police v Doorman HC Nelson CIV-2010-442-169, 15 December 2011.[57] I am mindful that the respondents had the use of a friend's Pajero motorvehicle for a period on a temporary basis, however there must have been an appreciation after the seizure of the Chrysler that the proceeds from the sale of the BMW, which would have been, on Mr Williams' evidence, received shortly beforethe loss of the Chrysler, would subsequently be needed to fund a replacement second vehicle. The recent evidence given by Mr Williams of the value of the original cars when sold (the Ford Falcon for $3,500 and the Fairlane for $6,000) would indicatethat a car of modest value would have sufficed to serve the family's needs.Decision[58] On 14 March 2014, I granted a without notice application for a restraining order in respect of the property situated at 34 Sidey Quay, Kaiapoi. I was satisfied on the material made available to me, in particular the content of the affidavits of Ms Riach and Detective Duncan Bull that the property was tainted and that there were reasonable grounds to believe that the first respondent had unlawfully benefitted from significant criminal activity. The on notice application for a restraining order in respect of the Kaiapoi property has not been contested by the respondents who, by way of formal notice dated 19 May 2014, have consented to the restraining order being made in respect of that property.[59] In the absence of any material being made available to me that might change the view I took in respect of the without notice application and the respondents'absence of opposition, the Commissioner's on notice application for a restrainingorder in respect of the property at 34 Sidey Quay, Kaiapoi is granted.[60] Having reviewed the wider evidence relating to the analysis of therespondents' financial position over recent years, and in particular the specific evidence relating to the financing of the Chrysler vehicle, I have concluded that there are reasonable grounds to believe that the Chrysler motor vehicle is tainted property. Notwithstanding the respondents claims of their cash income being sourced from legitimate activities, in my view the discrepancy between identified legitimate sources of income and the cash apparently available to them over such an extended period remains largely unexplained. When that is set against a not insignificant andwell established cannabis cultivation operation, I am satisfied there are reasonable grounds to believe the respondents have unlawfully benefitted from significant criminal activity. There is no issue that the first respondent, Mr Williams, is the owner of the Chrysler motor vehicle.[61] Accordingly, I am prepared to grant the Commissioner's on noticeapplication for a restraining order in respect of the Chrysler motor vehicle.The application for an order under s 35(e)(v)[62] In addition to the restraining order in respect of the motor vehicle, the Commissioner makes application for an order directing the Official Assignee to sell the restrained property in order to preserve its value. It is proposed that the Official Assignee sell the Chrysler and hold the derived funds in an interest bearing trust account until the resolution of the forfeiture proceeding. The derived funds will in turn become restrained property by dint of the application of s 36(4) of the Act.[63] In support of the application to sell the vehicle, Ms McKenzie submitted that no other party had an interest in the property and that it is inevitable that the vehicle will depreciate over time. The forfeiture proceedings will inevitably take some time to be concluded and that the evidence gathered to date in respect of theCommissioner's application to have the vehicle forfeited is, it was submitted, strong.[64] Ms McKenzie submitted that the Commissioner had not sought to extend forfeiture proceedings to the large Ford motor vehicle and that the non-availability of a second vehicle to the respondents was as a result of their decision to sell the BMW. The respondents have chosen not to use the proceeds from the sale of that vehicle to obtain a replacement second vehicle, which the respondents seek to emphasise is necessary for their day to day requirements.[65] The Commissioner's suggested possible option to meet the respondent's requirements, that a limited amount of the proceeds from the sale of the vehicle be provided to the respondents to obtain a substitute car is rejected by Mr Brandts- Giesen on their behalf. Equally, the proposal made on behalf of the respondent, that if the vehicle was to be the subject of restraint it be made available for their usesubject to conditions on a similar basis to the arrangement in respect of the Kaiapoi property is not favoured by the Commissioner. The Commissioner is concerned about the difficulties in enforcing undertakings and conditions as to insurance and maintenance, and that having regard to what was submitted was the strength of the evidence against the respondents, they would have little incentive to care for the vehicle in an effort to maintain its value. Against that, Mr Brandts-Giesen observed that the respondents are maintaining the house property and are not causing loss of value through vandalism, neglect or the like. This should give the Court some confidence as to how the car will be cared for.[66] On behalf of Mr Williams, Mr Brandts-Giesen sought to emphasise that the Chrysler vehicle was prized by the first respondent and was valued by him beyond the market price which might be obtained if sold. While I was initially sceptical of the relevance of such a consideration, I acknowledge that in the context of an application for the liquidation of the asset, it is a relevant consideration.[67] The Commissioner asks the Court to place weight on the need to avoid a reduction in the likely return to the community from potential forfeiture proceedings as a result of the inevitable depreciation in the motor vehicle. This effect can be avoided if the vehicle is sold. To be added to that are the costs to be incurred by the Official Assignee in storing and insuring the vehicle.[68] I accept that returning an asset like a motor vehicle risks an accelerated reduction in its value. While I acknowledge what has been submitted on the respondents' behalf about their adherence to the conditions imposed in respect of their access and use of the property at Kaiapoi, there is likely to be little incentive on the part of the respondents to spend the type of money needed to maintain and keep the vehicle, particularly a motor vehicle of the Chrysler's age and mileage, in good running order and repair. In my view, returning the vehicle to the first respondent is not a viable practical option.[69] Equally, however, the Commissioner has chosen to seize the Chrysler and make it the subject of proceeds recovery action. That step has been taken notwithstanding the considerable equity which the respondents share in the Kaiapoiproperty. I acknowledge there are costs associated with keeping the Chrysler in storage but in my view until the forfeiture proceedings are ultimately determined the first respondent is entitled to have his interest, which goes beyond monetary value, preserved.[70] I therefore decline the Commissioner's application under s 35(e)(v) that the Chrysler motor vehicle be sold. Orders are granted to restrain:(a) The property at 34 Sidey Quay, Kaiapoi, Lot 6 Deposited Plan 15754 Identifier CB11K/512; and(b) The black 2008 Chrysler 300 300C 3.5L V6 sedan vehicle registration THBOSS.Solicitors:Raymond Donnelly & Co, ChristchurchBrandts-Giesen McCormick, Rangiora