THE SOLICITOR GENERAL OF NEW ZEALAND V HAWKINS AND ORS HC ROT CIV 2006-463-618

THE SOLICITOR GENERAL OF NEW ZEALAND V HAWKINS AND ORS HC ROT CIV 2006-463-618 10 July 2009IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY CIV 2006-463-618BETWEEN THE SOLICITOR GENERAL OF NEW ZEALAND Applicant AND EDWARD NERI HAWKINS First Respondent AND PUBLIC SERVICE INVESTMENT SOCIETY (PSIS) LIMITED Second Respondent AND FRANCES LEONIE LAWSON Third Respondent Hearing: 10 July 2009 Counsel: A J Gordon for Applicant P V McGuire for First Respondent D Randall for Second Respondent F C K Wood for Third Respondent Judgment: 10 July 2009(ORAL) JUDGMENT OF HEATH JSolicitors: Crown Solicitor, Rotorua Davys Burton, Rotorua Macalister Mazengarb, Wellington[1] The Solicitor-General seeks an order forfeiting a property at 90 Taharangi Street, Rotorua. Mr Hawkins manufactured Methamphetamine at that address. [2] Ultimately, Mr Hawkins pleaded guilty to charges of manufacturing Methamphetamine, possession of precursor substances, possession of unlawful materials and possession of equipment for the purpose of manufacturing that drug. On 28 November 2007, he was sentenced to an effective term of imprisonment of four years' six months. [3] The application was set down for hearing today. The primary issue is a claim by Mr Hawkins' de facto wife that she is entitled to receive an interest in the property, by virtue of the Property (Relationships) Act 1976. In short, she assets that "undue hardship" would be caused to her if an order were not made and the property forfeited. [4] During the course of the hearing an issue arose as to the ability of the Court to grant relief of that type, in light of the judgment of Venning J in Solicitor-General v De Bruin [2004] 3 NZLR 540 (HC), upheld by the Court of Appeal in De Bruin v The Queen [2007] NZCA 600; leave to appeal to the Supreme Court dismissed, De Bruin v The Queen [2008] NZSC 32. [5] On my reading of those decisions, the Court will rarely grant relief from a forfeiture order on the basis of an inchoate right under the statute, certainly not before any order is made by the Family Court to that effect. [6] Mr Wood, for Ms Lawson, indicates that an application is before the Family Court. He has sought an adjournment of today's application to enable that proceeding to be progressed. Ms Gordon, for the Solicitor-General does not oppose that course. [7] PSIS Ltd is the mortgagee on the property. It seeks relief to protect it in respect of the mortgage debt owing and the costs it has incurred in protecting its position.[8] I make an order today granting relief in favour of PSIS Ltd in respect of the principal and interest owing under the mortgage at the time the mortgage is discharged by agreement or the property sold. So far as PSIS Ltd's costs are concerned, I reserve them (at the request of Ms Gordon) for further consideration. [9] Without making any direction, an affidavit as to current costs should be filed and served by PSIS Ltd. If there were no opposition to the quantum from any of the parties involved, a consent order could be sought at the next hearing. If there were objection then I would expect that issue to be argued before the Judge who hears the resumed application under the Act. [10] I adjourn the application to a date to be fixed by the Registrar. One half day is required for the hearing. The costs of today's hearing are reserved. _______________________ P R Heath J