Commissioner of Police v Cavanagh

[2017] NZHC 1863

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-001067 [2017] NZHC 1863

UNDER

the Criminal Proceeds (Recovery) Act

2009

BETWEEN

COMMISSIONER OF POLICE Applicant

AND

MICHAEL JOSEPH CAVANAGH First Respondent

VICTORIA LOUISE CAVANAGH Second Respondent

DAVID GERRARD OʼCARROLL
Third Respondent

NIGEL JOHN BOWKER Fourth Respondent

Hearing:	On the papers
Date ofminute:	7 August 2017

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 7 August 2017 at 3.30 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………

COMMISSIONER OF POLICE v CAVANAGH & ORS [2017] NZHC 1863 [7 August 2017]

[1]      In this proceeding the Commissioner of Police sought civil forfeiture orders relating to property that he alleged David O’Carroll either owned or in which he had an  interest.    One of  those  properties was  a residential  property situated  at  189

Rataroa Road.  Mr O’Carroll has always denied having an interest in the property. Glen Scouse and Grant Hardie are the registered proprietors of the property.  They are interested parties in this proceeding.

[2]      The Commissioner and Mr O’Carroll reached an agreement which excluded the Rataroa Road property.  Subsequently, Messrs Scouse and Hardie also reached a settlement with the Commissioner in respect of which they sought the Court’s approval under s 95 of the Criminal Proceeds (Recovery) Act 2009 (CPRA).  The terms of the proposed settlement would see Messrs Scouse and Hardie pay $380,000 to the Official Assignee and $5,000 towards the Commissioner’s legal costs in return for the property being released from the current restraining orders.

[3]      The matter came before me on 24 July 2017 and, having heard from counsel, I was satisfied that the requirements of s 95 (the settlement was consistent with the purposes of CPRA and the overall interests of justice) were met.  However, I could not make orders at that time.  Messrs Scouse and Hardie were planning to borrow the settlement sum and they needed some time to make the necessary arrangements regarding security for bank lending over the property.   The matter was left on the basis that counsel would file a joint memorandum recording the terms on which consent orders could be made.

[4]      I have now received a joint memorandum from counsel and, by consent, make the following orders.

Assets forfeiture order

(a)      Assets forfeiture orders under s 50(1) of the Criminal Proceeds (Recovery) Act 2009 over a sum of $380,000 so that it vests in the Crown absolutely and is to be in the Official Assignee’s custody and control, that sum to be paid in accordance with paragraph (b) below (or applied by the Official Assignee in accordance with paragraph (f)(ii)(D) below);

Directions to Messrs Scouse and Hardie, and variation of restraining order

(b)Messrs Scouse and Hardie must pay the Official Assignee the total sum of $380,000 within 20 working days of these orders being made;

(c)      Messrs Scouse and Hardie must pay costs to the Commissioner of Police in the total sum of $5,000 within 20 working days of these orders being made;

(d)The restraining order made by Andrews J on 22 May 2014 in respect of 189 Rataroa Road, Miranda, is varied to the extent that Messrs Scouse and Hardie may borrow against the property for the purpose of funding the payments  referred to  at paragraphs  (b) and (c) above (provided  the  total  borrowing  does  not  exceed  $395,00).     The borrowed funds must be paid directly from the banking institution as follows:

(i)       $380,000 to the Official Assignee;

(ii)      $5,000 to the Commissioner of Police’s solicitors;

(iii)     $10,000 to Messrs Scouse and Hardie’s solicitors.

Directions to the Official Assignee

(e)      In  the  event  Messrs  Scouse  and  Hardie  make  the  payments  in accordance with paragraphs (b) and (c) above, the restraining order over 189 Rataroa Road, Miranda is lifted and the Official Assignee is to then arrange for the restraining order to be removed from the property’s certificate of title;

(f)      In the event Messrs Scouse and Hardie fail to make the payments in accordance with paragraphs (b) and (c) above (or within any further time allowed by the Court in accordance with paragraph (h) below, the Official Assignee is directed as follows:

(i)he shall immediately sell the property at 189 Rataroa Road, Miranda for its fair market value;1

(ii)      he shall apply the proceeds of sale as follows:

(A) first,  deduction  of  the  Official  Assignee’s  costs  in effecting the sale of the property (including any decontamination costs) and reimbursement of his costs in administering this matter since its inception;

(B) second, repayment of any borrowings secured against the property;

(C)third, paying to the Secretary of Justice the amount (if any) payable by way of legal aid granted to Messrs Scouse and Hardie (less any contributions paid by them);

(D) fourth, application of all funds necessary to satisfy the assets forfeiture order at paragraph (a) above;

(E) fifth,  pay  the  Commissioner  of  Police  his  costs  of

$5,000 (in place of Messrs Scouse and Hardie – see paragraph (c) above);

(F) finally,  return  of the balance to  Messrs  Scouse  and

Hardie;

Costs and leave reserved

(g)With the exception of the costs referred to at paragraph (c) above, costs shall lie where they fall;

1      For the purposes of effecting a sale of the property under this paragraph, Guy Francis Sayers, of Napier, Official Assignee, has the power to execute any deed or instrument in the name of the registered proprietor(s), and to do anything necessary to give validity and operation to the deed or instrument.

(h)      Leave is reserved to Messrs Scouse and Hardie to apply on notice to

extend the time to make the payments in paragraph (b) and (c) above.

P Courtney J