Commissioner of New Zealand Police v Rowland

[2020] NZHC 791

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-166

[2020] NZHC 791

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER OF

an application under ss 21,24 and 25

BETWEEN

COMMISSIONER OF NEW ZEALAND POLICE

Applicant

AND

MATTHEW AARON ROWLAND

Respondent

ASHLEIGH MARIE ZAMMIT
Second Respondent

NICOLA ELIZABETH ALLEN

First Interested Party

MARTIN ALBERT ZAMMIT
Second Interested Party

KIM NICOLA ZAMMIT

Third Interested Party

Hearing:	On the Papers
Counsel:	S B McCusker for Applicant
Judgment:	22 April 2020

JUDGMENT OF CLARK J

[1]                 The Commissioner of Police applies for an order under s 59(1)(b) of the Criminal Proceeds (Recovery) Act 2009 seeking to have, in essence, a supplementary clause added to the profit forfeiture order made on 13 December 2019 in respect of the first respondent, Matthew Rowland (the December 2019 order).

COMMISSIONER OF NEW ZEALAND POLICE v ROWLAND [2020] NZHC 791 [22 April 2020]

[2]Paragraph 4(c)(i) of the December 2019 order states:

All interests in the property situated at 117 Grey Street, Woodville, registered in the name of Ashleigh Marie Zammit, and described in certificate of title HBP2/1011, legal description Lot 4 DP 22562, which is unencumbered and under the effective control of the first respondent (Rowland) (the Grey Street Property).

[3]                 The Official Assignee has advised the Commissioner the December 2019 order requires a supplementary clause empowering the Official Assignee to execute any deed or instrument in the name of the registered proprietor of the Grey Street Property, in order to give effect to the December 2019 order.

[4]                 Mr Rowland has not been served with a copy of the application. On behalf of the Commissioner, Mr McCusker reports that Mr Rowland’s former counsel advised Mr McCusker that his instructions are at an end. Mr McCusker anticipates considerable difficulty attending to personal service of Mr Rowland due to the current lockdown. Mr McCusker does not say why an application has not been made pursuant to r 6.1A of the High Court (Covid-19 Preparedness) Amendment Rules 2020. The effect of r 6.1A is to permit documents to be served by posting to an address or by electronic means if the conditions in r 6.1A are satisfied.

[5]                 Although the application has not been served, I propose nevertheless to grant the application for the following two reasons:

(a)Mr Rowland consented to the making of property forfeiture orders in respect of all the property to which the December 2019 orders apply. He also consented to property, including the Grey Street property, being realised.

(b)The further order sought is merely ancillary to the December 2019 order in the sense that the further order simply enables the Official Assignee to give effect to the December 2019 order. As Jagose J characterised a similar order made in similar circumstances, the further order is “essentially a mechanical addition to [the December order]”.1

1      Official Assignee v Mihaka [2017] NZHC 2632 at [4].

Given the further order does not more that enable the Official Assignee to accomplish that to which Mr  Rowland  has  already  consented,  Mr Rowland can have no tenable objection to the application.

[6]                 Accordingly, I make the following order, which is additional to the Profit Forfeiture Order dated 13 December 2019:

(a)The Official Assignee (including a person delegated his or her functions and powers under the Act) has the power to execute any deed or instrument in the name of the registered proprietor(s) of the following real property, and to do anything necessary to give validity and operation to the deed or instrument, for the purposes of effecting the sale of the property pursuant to the profit forfeiture order for first respondent (Rowland) dated 13 December 2019:

i.All interests in the property situated at 117 Grey Street, Woodville, registered in the name of Ashleigh Marie Zammit, and described in certificate of title HBP2/1011, legal description Lot 4 DP 22562.

Karen Clark J

Solicitors:

Crown Solicitor, Wellington