POLICE v EDDY [2018] NZHC 736

POLICE v EDDY [2018] NZHC 736 [19 April 2018]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECIV-2016-412-000047[2018] NZHC 736BETWEEN THE COMMISSIONER OF THE NEWZEALAND POLICEApplicantAND TE AHU KEVIN EDDYFirst RespondentAND LETATIA ALICE CARRSecond RespondentAND THERESA WIKI MCGREGORInterested PartyHearing: 12 April 2018Appearances: M J Grills for the ApplicantN M Laws for First and Second RespondentA Stevens for the Interested PartyJudgment: 19 April 2018JUDGMENT OF NATION J[1] The first respondent (Mr Eddy) holds title to a residential property at 26 BurnsStreet, Milton. The property's current value for rating purposes is $94,000. TheCommissioner accepts Mr Eddy's mother (Ms McGregor) has a beneficial interest inthe property to the extent of $68,500.[2] On 1 March 2017, the Commissioner obtained a restraining order under theCriminal Proceeds (Recovery) Act 2009 preventing any dealing with the Burns Streetproperty.[3] On 14 July 2016, Mr Eddy pleaded guilty to five charges of cannabis dealingunder the Misuse of Drugs Act 1975. Those charges arose out of transactions betweenMr Eddy and an undercover Police officer between 17 July 2015 and April 2016. Hewas sentenced to two years and two months' imprisonment for that offending on 17March 2017.1[4] The restraining order was due to expire on 28 February 2018. The order hasbeen extended since then on an interim basis. On 5 April 2018, the Commissionerfiled an application for asset forfeiture and profit forfeiture orders.[5] The issue I deal with now is whether the restraining order should be extended.Submissions for the Commissioner[6] In written submissions, Mrs Grills, for the Commissioner, noted the Act issilent as to the grounds upon which an extension of a restraining order may be grantedbut the legislation allows for repeated extensions of a restraining order. Mrs Grillsnoted the temporary nature of a restraining order. She highlighted that the evidentialthreshold for the making of a restraining order was whether there were "reasonablegrounds to believe, rather than proof, that the target has unlawfully benefited fromsignificant criminal activity".2[7] Mrs Grills referred to efforts that had been made on behalf of theCommissioner to reach a resolution that included a possible sale of the property, butno resolution had been achieved. She therefore asked for the extension so theapplication for forfeiture orders can be determined by the High Court.[8] In response to submissions for the respondents, Mrs Grills accepted there hadbeen a delay in the Commissioner filing the forfeiture application. Mrs Grills said thatMr Eddy was not sentenced on the charges brought against him until March 2017.Prior to that, it appeared there was some prospect of matters being resolved withoutthere having to be an application for forfeiture.1 R v Eddy [2017] NZDC 5792.2 Vincent v Commissioner of Police [2013] NZCA 412 at [47].[9] Mrs Grills submitted there would be no prejudice as a result of the extensionof the restraining order because the second respondent and the party's child wouldcontinue to occupy the home in the interim, as all parties wanted. Mrs Grills submittedthat the evidence currently before the Court from Ms McGregor indicated that she hadlent her son funds for the purchase on a basis where she did not contemplate repaymentwithin a particular time and where she had been willing to allow the loan to beoutstanding without the originally contemplated payments in reduction of the loan.[10] Mrs Grills said that any extension of the restraining orders would not have tobe for a full 12 months but could be on terms that would mean it was in place until theforfeiture application had been dealt with. She said that, from the Commissioner'sperspective, those proceedings were ready for hearing.Submissions for respondents[11] For the first and second respondents, Mr Laws accepted that, in the context ofthe Court's 28 February 2017 judgment, there were and are reasonable grounds tobelieve that the respondents unlawfully benefited from significant criminal activity.He submitted the issue for the Court was whether, in the exercise of its discretion, itshould extend the order.[12] He argued that the extension should be refused because of the delay that hadoccurred in seeking the extension and the delay that had occurred in the filing of theforfeiture application. He argued that the grounds for the making of a forfeiture orderdo not require the target to have been convicted of a criminal offence. Therefore, theforfeiture application could have been filed by the end of 2016, given all the evidencewhich the Commissioner was relying on wherein the Police affidavits of 15 April20163, 8 December 20164 and 9 December 20165. He said there was no evidencebefore the Court as to negotiations that might have occurred before Mr Eddy wassentenced or as to any other reasons to account for the delay. Mr Eddy's position, asto the evidence on which the charges against him had been brought, became clear whenhe pleaded guilty to those charges on 14 July 2016. He submitted that the Court should3 Affidavit of Duncan Robert Bell.4 Affidavit of Melanie Jessie van der Pol.5 Affidavit of Regan David Boucher.not effectively condone the delay in the Commissioner filing an application forforfeiture through an extension of the restraining order.[13] Mr Laws submitted the extent of the recovery which the Commissioner wasseeking to make was relevant in considering whether a restraining order should bemade and would be relevant in considering whether an initial restraining order shouldbe extended. He addressed the evidence already available for the Commissioner andsuggested it did not support the Commissioner's contention that the respondents hadbenefited to the extent of $46,800 from dealing in cannabis over the review period.[14] Mr Laws suggested there was no evidence that the property was acquired withthe proceeds of criminal activity. He submitted that the value of 26 Burns Street tothe Commissioner if a forfeiture order were to be made was limited, given its ratingvaluation of just $94,000. He submitted the benefits which the Commissioner allegedMr Eddy had obtained were in marked contrast to other cases where the Commissionerhad sought and obtained an extension of a restraining order.6[15] Mr Laws submitted there would be unfair prejudice to Mr Eddy if therestraining order were to be renewed. He points to Mr Eddy's evidence that the ParoleBoard were not willing to consider granting him parole on the basis that he reside at26 Burns Street, Milton because they were aware that the Commissioner had obtaineda restraining order in relation to that property.[16] Although this had not been mentioned as a ground for opposition in their noticeof opposition, the respondents also opposed the application on the basis that theapplication had been formally made on the basis that the Commissioner would befiling an application for a profit forfeiture order but the application actually filed wasfor both profit and asset forfeiture orders.[17] For Ms McGregor, Mrs Stevens said the way Ms McGregor had funded thepurchase of the property was not challenged by the Commissioner. With Mr Eddy in6 Commissioner of Police v Reed [2013] NZHC 802, total unexplained income from significantcriminal offending, as alleged by the Commissioner, of $1.46 million; Commissioner of Police vBurgess [2015] NZHC 1008, alleged benefits of $2 million; Vincent v Commissioner of Police,above n 2, claimed benefits of $11 million.prison, no payments had been made in reducing her loan so Ms McGregor had neitherthe use of her capital nor any reduction in that loan for the period of the restrainingorder since it was first made on 20 April 2016. She argued that there had been noobstacle from Ms McGregor to the Commissioner applying for a forfeiture order inthe 12-month period since the restraining order was made on an on notice basis on 1March 2017. She argued the Commissioner had been negligent in not filing aforfeiture application without delay and, with that background, the Court shoulddecline to extend the existing order.The relevant law[18] The Criminal Proceeds (Recovery) Act 2009 relevantly begins:3 Purpose(1) The primary purpose of this Act is to establish a regime for theforfeiture of property—(a) that has been derived directly or indirectly from significantcriminal activity; or(b) that represents the value of a person's unlawfully derived income.(2) The criminal proceeds and instruments forfeiture regime establishedunder this Act proposes to—(a) eliminate the chance for persons to profit from undertaking orbeing associated with significant criminal activity; and(b) deter significant criminal activity; and(c) reduce the ability of criminals and persons associated with crimeor significant criminal activity to continue or expand criminalenterprise; and...[19] As part of the overview referred to in s 4, it is stated that:In general terms, this Act—(a) provides for the restraint and forfeiture of property derived as a result ofsignificant criminal activity without the need for a conviction.[20] Subject to certain exceptions that do not apply here, a restraining order expireson the date that is one year after the restraining order is made or the earlier date of themaking or declining of a forfeiture order associated with the same property.7 If theduration of a restraining order is extended by a Court, the restraining order expires onthe date to which the order has been extended.8[21] Section 41 states:41 Extending duration of restraining order(1) If a court has made a restraining order, the applicant for that ordermay, before the restraining order expires, apply to that court toextend its duration.(2) If an application is made under subsection (1), the court may orderthat the operation of the restraining order be extended for a periodnot exceeding 1 year.(3) The duration of a restraining order may be extended more than onceunder this section.(4) If, before a restraining order would otherwise expire under section37(1), an application is made to a court under this section and theapplication is granted, the restraining order ceases to be in force onthe date specified in the court's order.[22] Section 42 states:42 Additional matters relating to extending duration of restrainingorder(1) On making any order under section 41(2), the court may vary therestraining order in any way it considers fit, including, withoutlimitation, by specifying whether all or part of the restrainedproperty is to remain subject to the restraining order during theextended period of operation.(2) An applicant for an order under section 41(1) must serve a copy ofthe application on any person who, to the knowledge of theapplicant, has an interest in the property that is the subject of theapplication.[23] Consistent with the approach taken by Woolford J in Commissioner of Policev Reed, I have regard to ss 41 and 42 of the Act which give the Court a wide discretionto extend restraining orders. As Woolford J stated, "the discretion must be exercised7 Criminal Proceeds (Recovery) Act 2009, s 37(1).8 Criminal Proceeds (Recovery) Act 2009, s 37(2)(d).in a reasonable manner having regard to the purpose of the Act and the nature andpurpose of the restraining orders".9[24] The benefit of a restraining order and of any extension of such an order underthe Act is that the property sought to be restrained should be available to meet anyprofit or asset forfeiture order that might be made on an application for such orders.An application for an extension should be considered taking that purpose into account.[25] The extent of the alleged benefit obtained from significant criminal activitydoes not need to be particularised at the restraint stage but the extent of the benefitcan:10 be a matter for the Court to take into account in deciding whether to orderrestraint or new restraining orders and in the exercise of its discretion toimpose conditions on a restraining order.[26] It is relevant that, given the Commissioner has nominated the value of theunlawful benefit received, the onus is now on the respondents to prove that the figureis correct.[27] Nevertheless:11 absent gross disproportion which the Court is in a position to identify at apreliminary stage, issues regarding the value of the unlawful benefit and theproperty available to meet any profit forfeiture should be left to the time ofsubstantive forfeiture.[28] Relevant to the exercise of the Court's discretion over an extension will be anassessment of any prejudice which a respondent claims they will suffer as a result ofan extension of the restraining order and the evidence that has been presented inrelation to that.[29] The making or extension of a restraining order can be highly prejudicial tothose affected by it so it restricts the way property might be dealt with. A restrainingorder is meant to be an interim order of limited duration. The extension of a restraining9 Commissioner of Police v Reed, above n 6, at [34].10 Commissioner of Police v Reed, above n 6, at [35].11 Commissioner of Police v Reed, above n 6, at [35].order is subject to judicial oversight. The Courts should be careful not to allowrestraining orders to be extended repeatedly in a way inconsistent with the statutoryscheme, which provides for them to be a temporary restraint until substantiveforfeiture applications have been determined.12[30] Where the Commissioner is seeking to extend a restraining order because therehave been delays in determining a forfeiture application, the reasons for the delay andthe particular prejudice that a respondent might suffer with an extension must beconsidered carefully, having regard to the circumstances of the case.AnalysisPrejudice[31] I would not decline the application for extension on the basis that any extensionof the restraining order would cause unfair prejudice to either the first and secondrespondents or Ms McGregor.[32] In an affidavit sworn on 25 May 2016, Ms McGregor details how she and herpartner, as the parents of Mr Eddy, paid $79,375.65 to their son's solicitors. Thisenabled him to buy 26 Burns Street and pay legal costs on the purchase. She said theydid this because the respondents were about to have a baby and they wanted to helphim step up and be a responsible family man. She said they were agreeable to theproperty being in his name but with a verbal agreement that he would pay them back$150 per week, and with the idea that he would repay the balance of any loan when itwas sold but would keep "the profit" so he could use it to buy another larger home ifnecessary. She says that Mr Eddy kept up the repayments for the first 12 months(which would have been until about April 2015) but then stopped, telling her that hewas in financial strife. She said, at that stage, she was not concerned. BetweenDecember 2015 and April 2016 they agreed that, because he was so far behind in hisweekly payments, he would return to Milton and sell the property. She says the housewas not put on the market because it was soon after this that Mr Eddy was arrested.12 Commissioner of Police v Burgess, above n 6, at [34]-[38].[33] In his affidavit of 14 July 2016, Mr Eddy said he had spoken to his motherabout repayments when he stayed with her around Christmas 2015. He said that, whenhe came back to Milton in March 2015, there was no work and it was hard to makethe repayments. He made no mention of any agreement that they would then sell theproperty.[34] In an affidavit of 5 July 2016, Mr Eddy's partner, the second respondent (MsCarr) said there had been discussions with Ms McGregor at the end of 2015 to dealwith the fact no repayments were being made. She says they were given three options.Two of those options involved restarting repayments. One involved selling the house.She says they went with a repayment option but were not able to make repaymentsbecause of Mr Eddy not having work.[35] In Ms Carr's most recent affidavit of 23 March 2018, she makes no referenceto Ms McGregor wanting to see the house sold but referred to 26 Burns Street havingbeen put forward to the Parole Board as a parole address for Mr Eddy if he was to begranted parole at that time. She wanted the restraining order to end on the basis 26Burns Street could still be an appropriate residential address for Mr Eddy if he wereto be granted parole at his next appearance before the Board on 7 May 2018. It isapparent from the evidence that she considers that, without a restraining order, thefamily, including Mr Eddy, would be able to continue living at 26 Burns Street eitherat the end of his sentence or if he is released on parole.[36] There is no updating evidence from Ms McGregor which would indicate thatshe is currently anxious to see the house sold so that she can recover the balance ofher loan. There is also no evidence that the property is deteriorating or, in any way,losing its value in a way that might make it more difficult for her to recover from herson what is outstanding on her loan. Ms McGregor said she helped her son buy thehome for the benefit of his family. I note, from the sentencing remarks of JudgePhillips of 17 March 2017, Mr Eddy was said to have three children from a relationshipwhich was "clearly very tight".[37] As to prejudice relating to Mr Eddy's attempts to obtain bail, the respondentsrely on the evidence of Ms Carr in her affidavit of 23 March 2018. She says sheattended a Parole hearing on 9 February 2018. She said:The Parole Board decided that our house at 26 Burns Street, Milton was anunsuitable parole address because it had a restraining order on it. I believethat if the house did not have the restraining order on in, Te Ahu would havegot parole.[38] She said that his next Parole Board hearing is to be on 7 May 2018. She wasconcerned that the Board would continue to deny Mr Eddy parole because they wouldnot consider the home suitable because of the restraining order.[39] No party has put before me the actual decision of the Parole Board.[40] In her affidavit, Ms Carr said that, during the Parole Board, the Board indicatedthey had tried to obtain information about the restraining order but she refers to this ina way which indicates they had not obtained the information they wanted.[41] I cannot see how the existence of a restraining order alone would be likely toprejudice Mr Eddy in seeking parole. However, the Parole Board may well haveinferred, from the fact there was a restraining order in place, that the Commissionerwould also be seeking a forfeiture order that could result in a sale of the property. Thiswould mean that it would not be available as a residential address for Mr Eddy ifgranted parole.[42] Mr Eddy's release date on his current sentence is 20 June 2018. If therestraining order is extended and with forfeiture proceedings unlikely to go to ahearing before the latter part of this year, it should be possible for Mr Eddy and hisadvisors to put before the Parole Board information which will satisfy them that 26Burns Street, Milton will be available as a suitable parole address until his release date.The potential for recovery[43] I accept that the potential recovery from 26 Burns Street on resolution of theforfeiture proceedings is modest. On Ms McGregor's evidence, the funds which theparents made available for the purchase of the property were made available as a loan.Despite this, I was told by Mrs Grills that the Commissioner accepts that Ms McGregorhas an interest in the property to the extent that loan is outstanding. The Commissioneris proceeding on the basis the purchase price was $78,000 and $9,500 of the purchaseprice loan has now been repaid. The Commissioner thus accepts that Ms McGregorhas an interest in the property to the extent of $68,500.[44] When the Commissioner first sought an application for a restraining order on19 April 2016, it was claimed the property had a value of $80,000. Its current rateablevalue is now $94,000. Although there is no evidence as to what the cost of sale wouldbe, I take judicial notice of the fact that it would likely be no less than $4,500. Thepotential value of the property to the Commissioner could thus be around $21,000.[45] On the basis of the evidence that will be before the Court, the Commissioneris claiming that Mr Eddy's equity in the property is tainted as having been obtainedwith the gross monies received from criminal offending to the extent of $9,500. Thatis based on evidence already before the Court as to the record of legitimate incomereceived by Mr Eddy and Ms Carr, and evidence as to how that income had been spent.The analysis suggests that the couple's legitimate income was never sufficient to coverall their ordinary living expenses, let alone the repayments they had to make on theloan from Ms McGregor. That evidence, and the inferences to be drawn from it, is indispute but, at this stage, it cannot be said there are no reasonable grounds to believethat the equity in the home is tainted property to that extent.[46] Based on evidence that is currently before the Court, the Commissioner is alsocontending that the gross proceeds that Mr Eddy received from dealing in cannabisover the relevant period was $46,800. Mr Laws argued that conclusion is speculativeand ought not to be accepted when the evidence is analysed against other evidenceabout dealings the undercover Police officer had with Mr Eddy, which led to thecharges he faced.[47] In his affidavit of 23 March 2018, Constable Bull refers to the evidenceprovided by Mr Eddy as to the extent of his own cannabis use and the cost of cannabis.Based on that evidence and his knowledge of the price of cannabis, Constable Bullconcludes that Mr Eddy would have purchased in excess of $46,800 of cannabis overthe review period of 28 March 2014 to 22 April 2016.[48] It cannot be said, with the evidence as it now is, that there are no reasonablegrounds to believe that Mr Eddy benefited to the extent of $46,800 from dealing incannabis. The amount to be brought into account on an application under the Act isthe gross amount received, not the net amount after deduction of expenses.13[49] I accept however that the extent of the alleged benefit at $46,800 is modest inrelation to many such applications under the Act. The potential recovery is alsomodest in relation to the cases which Mr Laws referred to and also one of thealternative thresholds for the Commissioner to seek a restraining order. One of thethresholds that applies here is that a person has been involved in activity that, ifproceeded against as a criminal offence, would be punishable by a maximum term ofimprisonment of five years or more.14 The alternative threshold is that a person hadbeen involved in an activity from which property proceeds or benefits of a value of$30,000 or more have directly or indirectly been acquired.15[50] I have taken the extent of the benefit which the Commissioner is seeking torecover into account in my decision.The arguably changed nature of the forfeiture application[51] The Commissioner filed a without notice application for restraining orders on19 April 2016. The grounds for the order included that there were reasonable groundsto believe the property at 26 Burns Street was tainted property (that is, it had beenacquired directly or indirectly with the proceeds from significant criminal activity) andthat there were reasonable grounds to believe the respondents had unlawfullybenefited from significant criminal activity.1613 Commissioner of Police v Eddy [2017] NZHC 299; Commissioner of Police v Tang [2013] NZHC1750.14 Criminal Proceeds (Recovery) Act 2009, s 6(1)(a).15 Criminal Proceeds (Recovery) Act 2009, s 6(1)(b).16 The without notice application for a restraining order particularised the significant criminalactivity as dealing in class C controlled drugs. There appears to have been a mistake with the lateron notice application in that it described the significant criminal activity as being "obtaining bydeception and/or using a document for pecuniary advantage". That would appear to be a mistake[52] These remained the grounds referred to in the on notice application for arestraining order which was filed on 22 April 2016 and then amended on 29 April2016. On their face, those applications were described as an Application forRestraining Order (prior to civil forfeiture orders).[53] There was a hearing before Dunningham J on 28 February 2017 when therewas argument as to the legal meaning of "benefited" in the context of the legislation.Dunningham J decided that issue, consistent with the judgment of Katz J inCommissioner of Police v Tang.17 Following that judgment, the respondents withdrewtheir objection to the making of a restraining order. An order was then sealed on 1March 2017. It was an order restraining any dealing with the Burns Street property.[54] Although the order itself did not refer to this, the restraining order wasobviously made in contemplation of the Commissioner filing an application for aforfeiture order.[55] The order made on 1 March 2018, consistent with s 37, was due to expire on28 February 2018. On 20 February 2018, the Commissioner applied to extend theduration of the restraining order, pursuant to s 41 of the Act.[56] The application to extend was made on the grounds:(a) there is currently a restraining order in force;(b) a settlement proposal by the Commissioner to resolve the proceedings towhich the restraining relates has not been accepted; and(c) the proceedings in respect of the subject matter are yet to be resolved.[57] On 23 February 2018, counsel for the respondents and Ms McGregor advisedthe Court that the application would be opposed. The application to extend was thenset down for hearing on 12 April 2018 with timetabling directions. In the interim, therestraining orders were extended to 12 April 2018.because the significant criminal activity referred to in the evidence and particularised in thewithout notice application was the dealing in class C controlled drugs.17 Commissioner of Police v Tang, above n 13.[58] At the hearing on 12 April 2018, I reserved my judgment and extended therestraining order until I had issued my judgment determining the application forextension.[59] On 5 April 2018, the Commissioner filed an application for assets forfeitureand profits forfeiture orders. The application for an assets forfeiture order sought anorder that title to 26 Burns Street vest in the Crown absolutely on the grounds that itwas tainted property, the respondents having received benefits totalling $46,800 fromsignificant cannabis dealing and through using that money were able to repay moniesowing to Ms McGregor. The Commissioner also sought a profit forfeiture order fixingthe maximum amount by which the Commissioner could obtain through an assetsforfeiture order at $46,800, as the value of unlawful benefits obtained from significantcriminal activity, namely selling cannabis.[60] Against that background, I do not consider there is any unfair prejudice to therespondents in now being faced with an application for both asset and profit forfeitureorders. Since being served with the proceedings, the respondents and Ms McGregorhave been on notice that the Commissioner has been seeking to recover, as against MrEddy's interest in 26 Burns Street, the profits which the Commissioner asserts the firstand second respondents obtained from dealing in cannabis. With the application for arestraining order, as originally framed, the respondents were on notice that anapplication was being made in respect of 26 Burns Street, both as tainted property andthrough a profits forfeiture order.Delay[61] I do not consider, in the context of all that has occurred in this case, that thedelay in the Commissioner filing the forfeiture application is so unreasonable that thisrequires the refusal of an extension to the restraining order.[62] It was not necessary for the Commissioner to establish that Mr Eddy was guiltyof the cannabis dealing offences with which he was charged to obtain assets or profitforfeiture orders. However, the Police were referring to the circumstances of thatoffending as part of their case that the respondents had benefited from dealing incannabis. In affidavits filed in opposition to the Commissioner's application forrestraining orders, the respondents denied that money obtained from selling drugswent towards the purchase of the property. Mr Eddy said, in an affirmation of 14 July2016, that the money he obtained from selling drugs went to repay people from thepast who he had brought drugs off and to supply his habit. In an affidavit of 19 January2017, before the restraining order was made on an on notice basis, Mr Eddy said thathe was not a commercial dealer and that he had only ever bought cannabis for him andhis friends to smoke.[63] In her affidavit of 5 July 2016, the second respondent, Ms Carr, referred to theway she and Mr Eddy had lived after 2013. She asserted that it was because moneywas "so tight" that they never profited from any crime.[64] No evidence was filed for the Commissioner to explain why there had been adelay in the filing of the forfeiture application. Despite this, it appears from documentson the Court file that, until the Commissioner applied for an extension to therestraining order, there was no concern expressed by the respondents or their advisorsas to the delay.[65] On 1 September 2016, through memoranda filed with the Court, counsel forthe Commissioner and the respondents sought a four week adjournment of theapplication for an on notice restraining order. They referred to Mr Eddy havingpleaded guilty to the various charges on 13 July 2016 and that his sentencing wasscheduled to proceed on 12 September 2016. However, counsel for the Crown and forMr Eddy had requested that sentencing be adjourned to a new date. The Commissionernoted that objection had been made to the without notice application for restraint andsaid that discussions were about to take place between its counsel and counsel for therespondents. Counsel agreed an affidavit had been filed on behalf of Ms McGregor.The Commissioner had accepted that the material provided indicates that she had asubstantial interest in the property and discussions with respect to a possible settlementhad been initiated.[66] Counsel for the Commissioner, Mrs Stevens for Ms McGregor, and Mr Laws,for the respondents, also referred to unexpected delays with settlement discussions inrequesting an adjournment of a case management conference for the proceedings on21 September 2016.[67] I am thus satisfied that part of the reason for the Commissioner not filing aforfeiture application after Mr Eddy pleaded guilty was that there was then consideredto be some prospect of resolving matters between the various parties without havingto incur the expense of either pursuing or opposing a forfeiture application.[68] On 17 October 2016, counsel for the Commissioner sought timetablingdirections for the hearing of the on notice application for a restraining order. It wasapparent from the respondents' notices of objection that they were opposing theapplication on substantive grounds. Were they to succeed with their opposition on thatbasis, there would have probably been little point to the Commissioner pursuing aforfeiture application.[69] It also seems likely that, at the time, there was still potentially some prospectof matters being resolved without the need for a forfeiture application to be filed. MrEddy's sentencing was delayed from September 2016 until 17 March 2017. It appearsfrom counsel's memorandum that the delay was, at least in part, because of settlementdiscussions which were taking place and because Mr Eddy wanted at sentencing to beable to claim some sort of credit or discount because he had lost his home. JudgePhillips discussed this issue, as recorded in his sentencing notes of 17 March 2017.[70] It does seem that the Commissioner could and should have filed the forfeitureapplication within a reasonable time after Mr Eddy was sentenced on 17 March 2017.In making the forfeiture application, the Commissioner relies primarily on evidencein the affidavit of Detective Sergeant Boucher, sworn on 9 December 2016, and theaffidavit of the Police financial analyst, Melanie van der Pol, sworn on 8 December2016. Both affidavits were described as affidavits "in support of forfeitureapplication". The Commissioner has filed a further affidavit from Detective RobertBull, sworn on 23 March 2018. That affidavit responds to assertions made by MrEddy in his affidavit of 19 January 2017 and has annexed to it the summary of factsfor the offending to which he pleaded guilty and the sentencing notes for his sentencingof 17 March 2017. The evidence Detective Bull provides was thus available soon afterMr Eddy was sentenced.[71] I accept that, at least until the end of 2017, part of the reason for a delay mayhave been the reasonable expectation or hope on the part of the Commissioner that itmight still be possible to reach some agreement. Mrs Grills, for the Commissioner,told me that certain settlement discussions had taken place at the end of 2017. MrsStevens confirmed this in her submissions to me.[72] All parties acknowledge that the Commissioner will be able to pursue theapplication for forfeiture orders, even if the restraining order is not extended. On theevidence before me, it seems likely that, with Mr Eddy, Ms Carr and their childrenneeding 26 Burns Street to be available as a home after Mr Eddy's release from prison,it is unlikely to be sold prior to the hearing of the forfeiture application.[73] In considering this application for an extension, I must have regard to thepurpose of the Act. On the evidence currently before the Court, the Commissioner canreasonably assert that Mr Eddy did benefit to the extent of $46,800 from dealing incannabis even if the amount he received from selling cannabis was used primarily tosupport the family's living expenses and his drug habit. With the Commissionerhaving nominated that amount as the benefit he received, the onus is on therespondents to prove otherwise. Although, on the evidence, it is likely that 26 BurnsStreet will remain in the ownership of Mr Eddy without a restraining order, the denialof an extension would carry with it a risk that the property would be sold so that noneof its value would be available to meet any forfeiture order that the Commissionercould obtain.Conclusion[74] In all these circumstances, an extension of the restraining order is not going tocause either the respondents or Ms McGregor such unfair prejudice as would justify arefusal of an extension. The delay that has already occurred in the filing of theapplication is not so blameworthy that, for that reason, an extension should be refused.[75] I accordingly allow the application. An order is made extending the restrainingorder for 12 months or until such earlier time as the Court determines theCommissioner's application for forfeiture orders.[76] That order is made on the basis that all parties will now do all that is requiredto have the forfeiture application brought on for hearing without undue delay. Noticesof opposition to the application do not have to be filed until 18 April 2018. MsMcGregor has also filed an application for relief against forfeiture. I was told therespondents will be opposing the making of a forfeiture order on the grounds that suchan order would cause the respondents undue hardship. The respondents wish to fileaffidavits in relation to that contention.[77] There will be a telephone conference with counsel for all parties on Thursday26 April 2018 at 9.30 am. Counsel are to file a memorandum, on or before 24 April2018, setting out a timetable for all the steps which have to be taken for the forfeitureapplication to be brought on for hearing.Solicitors:RPB Law, DunedinRoss Dowling Marquet Griffin, DunedinDavidson Armstrong & Campbell, Lawyers, WaipukurauAnne Stevens, Barrister, Dunedin.