POLICE v WISELY [2018] NZHC 2997
Affidavit evidence established reasonable grounds to believe the property was tainted and that there was a real risk of disposal or concealment if notice were given; accordingly the Court lawfully granted without‑notice restraining orders placing the property under the Official Assignee's custody and control and...
Source-derived case information.
- Citation
- [2018] NZHC 2997
- Parties
- Applicant: Commissioner of the New Zealand Police; Respondent: Kelvin Bruce Wisely; Interested Party: ANZ Bank New Zealand Limited
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 19 November 2018
- Procedural Posture
- Application Under the Criminal Proceeds (recovery) Act 2009 for Restraining Orders / Without‑notice and On‑notice Applications Filed; Without‑notice Interim Restraining Orders Granted Pending Disposal of On‑notice Application
- Outcome
- Without‑notice restraining orders granted against the property at 215 Circle Hill Road; property placed under the custody and control of the Official Assignee; interim orders to remain in force pending disposal of the on‑notice application and to remain at least until 4 April 2019
- Legal Topics
- Restraining Order, Tainted Property, Without‑notice Applications, Official Assignee Custody, Third Party Mortgage Interest
Source-derived case record
Summary, issues, holding and outcome
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Parties
Commissioner of the New Zealand Police
Applicant
Kelvin Bruce Wisely
Respondent
ANZ Bank New Zealand Limited
Interested Party
Procedural Posture
Application Under the Criminal Proceeds (recovery) Act 2009 for Restraining Orders / Without‑notice and On‑notice Applications Filed; Without‑notice Interim Restraining Orders Granted Pending Disposal of On‑notice Application
Legal Issues
- 1 Whether the property at 215 Circle Hill Road is tainted property under s5 of the Criminal Proceeds (Recovery) Act 2009
- 2 Whether the Court may grant a restraining order without notice under s22(1) given a risk of disposal or concealment
- 3 Whether interim orders should remain in force pending disposal of the on‑notice application
Ratio Decidendi
Affidavit evidence established reasonable grounds to believe the property was tainted and that there was a real risk of disposal or concealment if notice were given; accordingly the Court lawfully granted without‑notice restraining orders placing the property under the Official Assignee's custody and control and ordered the interim orders to remain in force until the on‑notice application is finally disposed of, subject to the stated expiry date.
Court Disposition
Without‑notice restraining orders granted against the property at 215 Circle Hill Road; property placed under the custody and control of the Official Assignee; interim orders to remain in force pending disposal of the on‑notice application and to remain at least until 4 April 2019
Orders
- Property at 215 Circle Hill Road, Circle Hill, Clutha is restrained from being disposed of or dealt with other than as provided in the restraining order
- The property is to be under the custody and control of the Official Assignee
Full Case Text
Judgment text and source record
1 paragraphs
POLICE v WISELY [2018] NZHC 2997 [19 November 2018]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECIV-2018-412-000103[2018] NZHC 2997IN THE MATTER of an Application pursuant to ss 22, 24 and25 of the Criminal Proceeds (Recovery) Act2009BETWEEN THE COMMISSIONER OF THE NEWZEALAND POLICEApplicantAND KELVIN BRUCE WISELYRespondentAND ANZ BANK NEW ZEALAND LIMITEDInterested PartyHearing: On the papersJudgment: 19 November 2018JUDGMENT OF NATION J[1] The Commissioner has applied without notice for restraining orders as to aproperty at 215 Circle Hill Road, Circle Hill, Clutha, owned by the respondent andsubject to a mortgage to the ANZ Bank.[2] The orders sought are that the property not be disposed of or dealt with otherthan as provided for in the restraining order and is to be under the Official Assignee'scustody and control.[3] The Commissioner has filed without notice and on notice applications forrestraint.[4] The Court may make a restraining order relating to specific property if theCourt is satisfied it has reasonable grounds to believe that any property is taintedproperty.1 Property may be tainted as long as there is a link, even if indirect, betweenit (in whole or in part) and the alleged significant criminal activity.2[5] A restraining order may be made on a without notice application if the Courtis satisfied there is a risk of the proposed restrained property being destroyed, disposedof, altered or concealed if notice were given to the person subject to the application.3[6] I have read the affidavit of Bryan David Gillespie in support of the withoutnotice application and the memorandum in support of counsel for the Commissioner.[7] I am satisfied that the grounds have been made out for the orders set out in theapplications. Orders are made accordingly.[8] Because an on notice application for a restraining order has also been filed, thewithout notice orders are to remain in force until the application for the on notice orderis finally disposed of.4[9] Although the Commissioner may apply to have the current orders extended, atthis stage, the orders are to remain in force until Thursday 4 April 2019.Solicitors:RPB Law, Dunedin1 Criminal Proceeds (Recovery) Act, s 24(1).2 Criminal Proceeds (Recovery) Act, s 5; Commissioner of Police v Doorman HC CIV-2010-442-169.3 S 22(1).4 S 39(2).