POLICE v FENNELL [2016] NZHC 205
Because the Court was satisfied the on‑notice application and hearing notice had been brought to the respondent's and the bank's attention, and the applicant had prosecuted the matter with due diligence under s39, the absence of any appearance or opposition justified making a final restraining order placing the...
Source-derived case information.
- Citation
- [2016] NZHC 205
- Parties
- Applicant: Commissioner of the New Zealand Police; Respondent: Francis Gary Fennell; First Interested Party: ANZ Bank New Zealand Limited
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 18 February 2016
- Procedural Posture
- Restraining Order Application Under the Criminal Proceeds (recovery) Act 2009 / On‑notice Application for Restraining Order — Final Determination
- Outcome
- Final restraining order made
- Legal Topics
- Restraining Order, Freezing Order, Service of Documents, Official Assignee Custody
Source-derived case record
Summary, issues, holding and outcome
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Parties
Commissioner of the New Zealand Police
Applicant
Francis Gary Fennell
Respondent
ANZ Bank New Zealand Limited
First Interested Party
Procedural Posture
Restraining Order Application Under the Criminal Proceeds (recovery) Act 2009 / On‑notice Application for Restraining Order — Final Determination
Legal Issues
- 1 Whether the on‑notice application and hearing notice were validly served on the respondent
- 2 Whether the applicant prosecuted the on‑notice application with due diligence as required by s39
- 3 Whether the Court should make a final restraining order in the absence of any appearance or opposition from the respondent
Ratio Decidendi
Because the Court was satisfied the on‑notice application and hearing notice had been brought to the respondent's and the bank's attention, and the applicant had prosecuted the matter with due diligence under s39, the absence of any appearance or opposition justified making a final restraining order placing the specified funds in the official assignee's custody.
Court Disposition
Final restraining order made
Orders
- The funds attributed to ANZ Bank New Zealand Limited account number 06 0909 0418548 00 in the name of F G Fennell are not to be disposed of or dealt with other than as provided for in this restraining order.
- The funds are to be in the official assignee's custody and control.
Full Case Text
Judgment text and source record
1 paragraphs
POLICE v FENNELL [2016] NZHC 205 [18 February 2016]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2015-409-000783[2016] NZHC 205BETWEEN THE COMMISSIONER OF THE NEWZEALAND POLICEApplicantAND FRANCIS GARY FENNELLRespondentAND ANZ BANK NEW ZEALAND LIMITEDFirst Interested PartyHearing: 15 February 2016Appearances: H McKenzie for the ApplicantNo appearance for the RespondentJudgment: 18 February 2016JUDGMENT OF NATION J[1] On 2 December 2015, this Court made, on a without notice basis, a restraining order with regard to funds attributed to ANZ Bank New Zealand Limited, account number 06 0909 0418548 00 in the name of F G Fennell. At the same time as the ex parte application was made for a restraining order, an application was made on notice so that the order made ex parte continues in force until the on notice application for a restraining order is finally disposed of.1[2] An applicant for a restraining order on notice must prosecute the application with all due diligence.2 The Court must ensure such an application is dealt with speedily so far as is practicable and consistent with the interests of justice.31 Criminal Proceeds (Recovery) Act 2009, s 39(2).2 Above n 1, s 39(3).3 Above n 1, s 39(4).[3] The application was called in the High Court at Christchurch before me on 15 February 2016. At that time, counsel for the applicant provided me with an affidavit from a Police officer confirming that on 20 January 2016 he had served various documents on a person who identified himself as the respondent in these proceedings. The documents served included the on notice application for a restraining order dated 1 December 2015 and the notice of date of hearing in the High Court with a hearing date of 15 February 2016, that notice being dated 2 December 2015.[4] I am also satisfied the on notice application, the ex parte restraining order and/or other relevant documents were brought to the attention of the ANZ Bank as a first interested party on 15 December 2015.[5] There having been no appearance for the respondent or any indication from him that he wishes to oppose the on notice application, it is appropriate that I now make a final restraining order in the terms set out in the application.[6] I order the funds attributed to ANZ Bank New Zealand Limited, account number 06 0909 0418548 00 in the name of F G Fennell:(a) are not to be disposed of, or dealt with, other than is provided for in this restraining order; and(b) are to be in the official assignee's custody and control.Solicitors:Raymond Donnelly & Co., Christchurch