COMMISSIONER OF NEW ZEALAND POLICE v FENNELL [2018] NZHC 247
Because the funds were under the control of the Official Assignee, the respondent was overseas and under investigation, and the application was unopposed, the court exercised its discretion to extend the restraining order until 5 March 2019 and adjourned the profit forfeiture application pending proper service and...
Source-derived case information.
- Citation
- [2018] NZHC 247
- 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
- 26 February 2018
- Procedural Posture
- Application to Extend Restraining Order and Related Profit Forfeiture Proceedings / Interim Extension Granted; Profit Forfeiture Application Adjourned
- Outcome
- Restraining order extended to expire on 5 March 2019; profit forfeiture application adjourned and listed for hearing
- Legal Topics
- Restraining Order, Profit Forfeiture, Asset Control, Service and Adjournment, International Investigation
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
Application to Extend Restraining Order and Related Profit Forfeiture Proceedings / Interim Extension Granted; Profit Forfeiture Application Adjourned
Legal Issues
- 1 Whether the existing restraining order should be extended
- 2 Whether funds controlled by ANZ and now the Official Assignee should remain restrained pending investigation
- 3 Whether the profit forfeiture application should proceed or be adjourned given service and ongoing international investigations
Ratio Decidendi
Because the funds were under the control of the Official Assignee, the respondent was overseas and under investigation, and the application was unopposed, the court exercised its discretion to extend the restraining order until 5 March 2019 and adjourned the profit forfeiture application pending proper service and further investigation.
Court Disposition
Restraining order extended to expire on 5 March 2019; profit forfeiture application adjourned and listed for hearing
Orders
- Restraining order extended to expire on 5 March 2019.
- Profit forfeiture application adjourned; matter listed before the Court at 10:00 a.m. on 30 April 2018.
Full Case Text
Judgment text and source record
1 paragraphs
COMMISSIONER OF NEW ZEALAND POLICE v FENNELL [2018] NZHC 247 [26 February 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2015-409-000783[2018] NZHC 247BETWEEN THE COMMISSIONER OF THENEW ZEALAND POLICEApplicantAND FRANCIS GARY FENNELLRespondentANZ BANK NEW ZEALAND LIMITEDFirst Interested PartyHearing: 26 February 2018Appearances: H F McKenzie for ApplicantNo Appearance for RespondentJudgment: 26 February 2018REASONS FOR DECISION OF GENDALL J[1] Before me today, 26 February 2018, was an application by the applicant for anorder extending the duration of a restraining order which was made against therespondent in this proceeding some time ago.[2] The property to which that order originally applied was funds attributed to theANZ Bank New Zealand Limited Account No. 06-0909-0418548-00 in the name ofF G Fennell.[3] The order original made was that this property:(a) was not to be disposed of, or dealt with, other than is provided for inthe restraining order; and(b) is to be in the Official Assignee's custody and control.[4] As I understand the position from Ms McKenzie, counsel for the applicant, thefunds in question which were originally under the control of the ANZ Bank are nowunder the control of the Official Assignee. That is simply noted at this point.[5] Today, 26 February 2018, I granted the order sought extending the duration ofthe restraining order for a period expiring on 5 March 2019. The previous order wasdue to expire on or about 5 March 2018.[6] This application to extend the duration of the restraining order was unopposed.[7] As I understand it, the respondent Mr Fennell is currently residing in Irelandand is the subject of alleged involvement in criminal activity there and elsewhereinternationally. The Irish authorities, I understand, are investigating this further at thepresent time, including involvement in the alleged activities by certain other associatesof Mr Fennell.[8] Under all the circumstances here I am satisfied that it is appropriate for theduration of the current restraining order to be extended in the meantime.[9] In this proceeding also, the applicants have recently on 16 February 2018 filedan application for a profit forfeiture order.[10] Service of that profit forfeiture application has been delayed for a short periodin the meantime and that application therefore must be adjourned. A direction to thiseffect is to follow.[11] In all the circumstances, however, the application by the applicant for an orderextending the duration of the restraining order is appropriate. An order is now madeextending the duration of the restraining order to now expire on 5 March 2019.[12] So far as the recent application for a profit forfeiture order is concerned, thismatter is adjourned and now set down before this Court at 10 a.m. on 30 April 2018....................................................Gendall JSolicitors:Raymond Donnelly & Co, ChristchurchCopy to:Respondent Mr FennellFirst Interested Party