Anderson v Bruning

[2021] NZHC 602

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000149

[2021] NZHC 602

BETWEEN

DANIELLE JAYNE ANDERSON

Appellant

AND

SCOTT JOHN BRUNING and NEW ZEALAND POLICE

Respondents

Hearing:	25 February 2021
Appearances:	B P A Shamy for the Appellant A L Mills for the Respondent
Judgment:	23 March 2021

JUDGMENT OF NATION J

Introduction

[1]    The appellant, Ms Anderson, said she paid $6,500 on 21 November 2019 for a red Holden Commodore BAJ518 (the vehicle). She says she allowed a person with whom she was in a relationship (Mr Bruning) to use the vehicle. There was a breakdown in their relationship and she had to leave the home she and Mr Bruning shared. She says he would not return the vehicle to her. While he had possession of the vehicle, he was caught driving while disqualified. On conviction for that offence, an order was made for confiscation of the vehicle. Ms Anderson says that, when she heard of this, she filed an appeal against the order for confiscation.

[2]    With the assistance of Mr Shamy, a lawyer appointed to act for Ms Anderson on legal aid, affidavits were filed in support of her appeal. The deponents of those

ANDERSON v BRUNING [2021] NZHC 602 [23 March 2021]

affidavits were not at Court and available for cross-examination. Counsel for the Police said she did not wish to cross-examine them.

[3]    The appeal proceeded based on the information in those affidavits and records put before the Court from the Police and the New Zealand Transport Agency (NZTA) without objection and correspondence that Ms Anderson had initially filed in support of her appeal.

[4]I consider all documents on the file are admissible as evidence.

[5]    Some of the documents were in the nature of evidence as sworn affidavits. Other documents were part of the business records of the NZTA and the Police, meaning their admissibility is subject to s 19 of the Evidence Act 2006. By virtue of the circumstances in which business records are compiled, I accept the information (including hearsay statements) they contain is likely to be reliable.1 I am satisfied there would have been undue expense in requiring the makers of those documents to give evidence under s 19(1)(c) as such people were not available to give evidence on the hearing of the appeal. The documents that are part of the business records are clearly relevant to the proceeding and there is no prospect of unfair prejudice.

[6]    I refer also to correspondence Ms Anderson filed initially in support of her appeal. It is evidence of the assertions she has made as to relevant matters.

[7]    There was no objection to my reaching my decision with regard to all documents filed by the parties for the appeal.

[8]That information and evidence establishes the following:

(a)  On 7 August 2018, Mr Bruning was convicted for driving with excess breath alcohol (third or subsequent offence). He was sentenced to supervision for one year and community detention for three months. He was disqualified from driving for one year and one day. He was also the subject of a zero alcohol licence order which required Mr Bruning to apply

1      Asgedom v R [2016] NZCA 334, (2016) 28 CRNZ 70 at [78].

for a zero alcohol licence at the end of the disqualification period. This meant that, for three years after his disqualification, the only licence he could hold was a zero alcohol licence. By reason of the zero alcohol licence, he remained disqualified and not entitled to drive until he applied to the NZTA for a zero alcohol licence and such a licence had been issued to him.2

(b)  On 7 August 2018, an order was also made prohibiting Mr Bruning from holding an interest in a motor vehicle.3 The order prohibited him from acquiring an interest in a vehicle for 12 months.

(c)  Ms Anderson was in an on-again off-again relationship with Mr Bruning. While in that relationship, she received $33,000 from her father’s estate. On 21 November 2019, she purchased two Holden vehicles with that money. One was an automatic which she used regularly. The other was the vehicle she says she acquired so she could learn to drive a manual. She paid $6,500 for the manual vehicle plus expenses for parts. The vehicle was registered in the name of Ms Anderson’s friend Rebecca Everett. Ms Anderson said it was put in Ms Everett’s name because Ms Anderson was not aware she could have more than one vehicle registered to her.

(d)  On 10 December 2019, registered ownership of the vehicle was transferred from Ms Everett into the name of Bradley Mark Allsopp. Ms Everett says it was transferred without her knowledge.

(e)  On 10 January 2020, a green sticker non-operation notice 663323 was issued for the vehicle. A green sticker is issued under s 115 of the Land Transport Act 1998 where a Police officer believes on reasonable grounds there are defects with the vehicle which means it does not comply with rules and regulations. With this green sticker and notice, the vehicle was not to be driven until the defects had been fixed and the vehicle had been

2      That is apparent from ss 65B of the Land Transport Act 1998 and by reference to the terms of a similar sentence imposed on 17 August 2020 and documents before this Court relating to that order.

3      Such an order is made when an offender is convicted of an offence where there would be confiscation of a vehicle but the offender has told the Court they do not have any interest in a vehicle: Sentencing Act 2002, s 136.

given a warrant of fitness. Police records indicated the vehicle had not had a warrant of fitness since 19 August 2019.

(f)  On 23 February 2020, the Police were called out to a domestic incident at the address Ms Anderson and Mr Bruning shared. The Police assisted Ms Anderson to leave the address.

(g)  On 25 February 2020, the vehicle was observed being driven with the green stickers removed. There were three people in the vehicle, the driver a Misty Murray, Mr Bruning and Ms Anderson. The vehicle was defective because of a manual gearbox conversion, the speedometer was inoperative and the exhaust had been modified.

(h)  On 25 February 2020, a blue sticker was issued for the vehicle. This notice required the driver or owner to register ownership of the vehicle in the name of the true owner. This sticker was issued because it appeared to the Police that, on information given to them, the old owner of the vehicle was Mr Allsopp but the new owner was Mr Bruning.

(i)  On 25 February 2020, ownership of the vehicle was registered in the name of Mr Bruning.

(j)  On 4 April 2020, the Police were called out to a further domestic incident at the address Ms Anderson and Mr Bruning shared. The Police again assisted Ms Anderson to leave the address. She was taken to the address of her brother. The Police recorded that she intended to stay at that address during the duration of the COVID-19 lockdown.

(k)  On 5 April 2020, Ms Anderson went back to the address to collect her property. Mr Bruning had left the address and taken the vehicle with him. She says she did not give him authority to take the vehicle. She says she had no luck tracking down the vehicle.

(l)  On 27 July 2020, Mr Bruning was apprehended driving the vehicle. He was charged with driving while disqualified. The vehicle was impounded because the driver was disqualified.

(m)  On 17 August 2020, Mr Bruning appeared in the District Court and pleaded guilty to a charge of driving while disqualified on 27 July 2020. He was disqualified from holding or obtaining a driver licence for six months and was again subject to a zero alcohol licence order. The Community Magistrate recorded that the vehicle had been bought in February 2020 so s 129 of the Sentencing Act 2002 applied. An order was made for the confiscation of the vehicle and for it to be surrendered to the Registrar of the Court by 4.00 pm on 17 August 2020.

(n)  On 17 August 2020, Ms Anderson went to the Police to report the vehicle stolen. Attached to her affidavit was a Police acknowledgement form confirming her complaint. That form recorded that she had reported to the Police at 5.09 pm on 17 August 2020.

Submissions

[9]    Initially, and before affidavits had been filed providing the above information, submissions were filed for the Police in which they suggested there was insufficient evidence before the Court on which to conclude that Ms Anderson had established she would suffer undue hardship if the vehicle were confiscated. With the benefit of the affidavit evidence filed, Ms Mills submitted it was essentially for the Court to determine whether, against the above factual background, Mr Anderson had met that threshold. Acknowledging that Ms Anderson paid for the vehicle, Ms Mills accepted Ms Anderson would suffer hardship if she lost the car but said the issue for the Court was whether this was “undue” hardship. Ms Mills also suggested the Court should weigh in the balance the potential ability of Ms Anderson to recover the value of the vehicle through giving notice to the Registrar of the Court that she had a security interest in the vehicle so that, under s 137 of the Sentencing Act 2002, she should be entitled to the proceeds of sale after appropriate deductions.

[10]   For Ms Anderson, Mr Shamy submitted Ms Anderson relied on the fact she had lost a vehicle for which she had paid $6,500 as constituting the undue hardship which entitled her to relief on her appeal. He submitted there would be undue hardship if Mr Bruning was to receive the net proceeds from the sale of the vehicle when Ms Anderson had paid for it. He accepted she could make a claim on the basis she had a

security interest in the vehicle but said she would face difficulties in pursuing that claim.

Jurisdiction

[11]Section 129EA of the Sentencing Act states:

129EA   Appeal against confiscation by third party

(1) If the court orders the confiscation of a motor vehicle under section 128, 129, or 129A, a person (other than the offender or, as the case may be, the substitute for the offender) may, within 20 working days after the date of the order, or within any further time that the appropriate court allows, appeal to the appropriate court against the order on the ground that the confiscation is causing, or will cause, undue hardship to the appellant or any other person (other than the offender or, as the case may be, the substitute for the offender).

…

(5) The court must set aside the confiscation of the motor vehicle if satisfied that the ground of appeal stated in subsection (1) applies.

[12]   Ms Anderson filed her notice of appeal on 22 September 2020, outside the 20 working day timeframe for filing. She said she had “only just found out about my car being confiscated”. The Police did not oppose an extension of time for the filing of the appeal and the Court extended the time for the filing of the notice of appeal to 22 September 2020.

[13]   Undue hardship is less than extreme hardship but must be more than inconvenience.4 It means “excessive or greater hardship than the circumstances warranted”.5 That hardship must be disproportionate to that which a third party would generally be expected to experience as a result of confiscation and must be determined objectively.6

[14]   Ms Anderson effectively claims she was the true owner of the vehicle - that is the equitable owner - because she paid for it. She says the confiscation will cause her

4      Turua v Police [2013] NZHC 2913 at [9].

5      Komene v Police [2016] NZHC 2120 at [16], citing Dalton v Auckland City [1971] NZLR 548 (SC) at 550.

6      Hunt v Police HC Wellington AP232/99, September 1999 at [9]; Preest v Police [2017] NZHC 387 at [10].

undue hardship because she will lose the vehicle and, as matters stand, the net proceeds of sale of the vehicle will be paid to Mr Bruning as the registered owner of the vehicle when he was not and is not the true owner of it.

[15]   This is not a case where the appellant says she will suffer undue hardship because confiscation has deprived her of the use of the vehicle. There is no evidence she used the vehicle before it was confiscated. She says she used the inheritance from her father to acquire this and another vehicle for her own use. She relies on the undisputed evidence that she paid $6,500 for the vehicle and the fact confiscation of the vehicle may result in the loss of what she paid for.

[16]   In asserting she is the equitable owner of the vehicle through having paid for it, Ms Anderson is effectively asserting she is the true owner of the vehicle and she was always the true owner.

[17]Section 131 of the Sentencing Act provides:

131 If motor vehicle has been disposed of, court may prohibit offender from acquiring another motor vehicle

(1) This section applies if, in any case to which any of section 128, 129, or 129A would otherwise apply, the offender or any substitute for the offender has, before the date of the offender’s conviction, ceased to be the owner of the motor vehicle or to have any interest in it.

…

(3)   If the court is not satisfied that the disposition of the motor vehicle was made by the offender or the substitute for the offender with a bona fide intention to dispose permanently of his or her ownership or interest in the vehicle,—

(a)the court may, if it thinks fit, set the disposition aside; and

(b)section 128, 129, or 129A, as the case may be, applies as if the disposition by the offender or by the substitute for the offender had not occurred.

…

[18]   Section 131 does not strictly apply to this situation because it was not a situation where Mr Bruning “ceased to be the owner of the motor vehicle or to have any interest in it” at the time the vehicle was confiscated. Ms Anderson’s claim is that

he was never the owner of it or had any interest in it. Nevertheless, in considering the circumstances here, I consider it relevant that, where ownership has been transferred, s 131(3) requires an appellant who has acquired the vehicle to establish that the offender had a “bona fide intention to dispose permanently of his or her ownership or interest in the vehicle”. Such an intention would not be bona fide if the vehicle was transferred to avoid the consequences of confiscation.

[19]   Consistent with s 131 are ss 128(3A) and 129A(5). Section 128(3A) provides that, where a person has been convicted of one of the named offences under the Land Transport Act, the court must not make an order for confiscation of a motor vehicle that a substitute for an offender owns or has an interest in if it is satisfied of certain circumstances.

[20]   Section 129A(5) provides that, where a person is convicted for a third “illegal street racing” offence within a four year period, the court must not make an order for the confiscation and destruction of a motor vehicle that any person treated as a substitute for the offender has an interest in if it is satisfied of certain circumstances

[21]   A substitute for the offender is defined under s 127(3) as a person served with a written caution about an offence committed by an offender and, within four years after the cautioned offence is committed, the offender commits a further offence specified in s 128(1) involving a motor vehicle that, at the time the offence is committed, the person owns or has an interest in.

[22]   Under both ss 128(3A) and 129A(5), the certain circumstances the court must establish are that:

(a)  the substitute did not know, and could not reasonably have known, that the offender would commit the offence or offences; or

(b)  the substitute took all reasonable steps to prevent the offender from committing the offence or offences.

[23]   These provisions relate to an interest in the vehicle held by the substitute for the offender. The appeal here is brought under s 129EA(1) which expressly does not

apply to a substitute for the offender. The Court must decide whether confiscation of a vehicle would result in undue hardship to the appellant having regard to the purpose of the relevant legislation. That purpose can, in part, be gleaned from other provisions, such as ss 128(3A) and 129A(5), that are part of the context in which s 129EA(1) has been enacted.

[24]   Consistent with those provisions, I do not consider that a court could objectively find there was undue hardship in all the circumstances if the person who claims to be the true owner of the confiscated vehicle:

(a)  allowed a disqualified driver to regularly use the vehicle knowing that, if convicted of driving while disqualified, the vehicle could be confiscated; and

(b)  arranged for the vehicle to be registered in someone else’s name in an attempt to avoid the potential for confiscation.

[25]   Neither Ms Anderson nor Ms Everett were available for cross-examination on the hearing of the appeal. Counsel for the Police did not seek an opportunity to cross- examine these two people and accepted that their account of how the vehicle had been paid for and record of ownership of the vehicle were correct.

[26]   Despite that, the onus remained on Ms Anderson to establish on the balance of probabilities that the confiscation would cause her undue hardship.7

[27]   In her affidavit, Ms Anderson says she was in an “on-again off-again” relationship with Mr Bruning and that relationship was rekindled for the last time before her father passed away and she received $33,000 from his estate. I consider it likely she knew that, on 7 August 2018, Mr Bruning was sentenced to community detention for three months for driving with excess breath alcohol (his third or subsequent such offence), disqualified from driving for one year and one day from 7 August 2018, was required to apply for a zero alcohol licence and would continue to be a disqualified driver until he had obtained such a licence.   It is also likely Ms

7      Sentencing Act 2002, s 129EA(1); Preest v Police [2017] NZHC 387 at [8], citing Hunt v Police

HC Wellington AP232/99, 29 September 1999.

Anderson knew Mr Bruning was subject to an order prohibiting him from having an interest in her motor vehicle for 12 months from 7 August 2018.

[28]   In her affidavit, Ms Anderson said, when she purchased the vehicle on 21 November 2019, she had ownership of the vehicle transferred into her friend’s name because she was unaware she could have more than one vehicle registered in her name. I am sceptical as to whether that was the true reason but there is no suggestion in either Ms Anderson’s or Ms Everett’s affidavits that Ms Everett was to be the true owner of the vehicle or was to have the use of it.

[29]   Whatever the reason for Ms Anderson having the vehicle registered in Ms Everett’s name, I infer from the evidence that the vehicle was purchased with the intention it would be used by Mr Bruning.

[30]   In her affidavit, Ms Anderson does not suggest she had been ignorant of the transfer of ownership into the name of Bradley Allsopp or on 25 February 2020 into the name of Mr Bruning. She says she understood the reason for that final transfer was that Mr Bruning was told by a Police officer who pulled the vehicle over that the vehicle would need to be in his name if he was to drive it. That evidence suggests she knew Mr Bruning was becoming the registered owner of the vehicle and that he had been driving it. I consider it likely that the vehicle was transferred into the name of Mr Bruning because, as recorded by the Police when they blue stickered the vehicle on 25 February 2020, Mr Bruning, while associated with Ms Anderson, told the Police he was the true owner of the vehicle.

[31]   When Ms Anderson first filed her appeal, she filed with it a letter dated 22 September 2020 in support of her appeal. In that letter Ms Anderson said:

… I lent the car to my boyfriend at the time Scott Brunning, who was teaching me how to drive the car, due to police regulations in registration the car had to be put into scotts name as he was the driver, or they would blue sticker it.

[32]   Ms Anderson says it was after this happened that the relationship between her and Mr Bruning turned sour.

[33]Ms Anderson’s letter continued:

When Scott and I split up the police removed me from where I was living, when I went back to collect all my gear Scott had taking the car, at that point in time I was a wreck and had to have a friend Chris Robertson help me get sorted, we collected all my other gear, I spent several weeks trying to find scott and get my car back, in turn he had some ring me and tell me I wasn’t getting it back, Chris took me to the police station to try resolve the issue, police told me I have to get a lawyer, and they gave me an acknowledgement form reference no 200817/9266,

[34]   In her letter of 22 September 2020, Ms Anderson seems to be indicating that she went to the Police to resolve the issue soon after she separated from Mr Bruning for the last time and after she had spent several weeks trying to find him and get her vehicle back. However, the Police case summary report and Ms Anderson’s affidavit indicate she separated from Mr Bruning for the last time on 4 April 2020 and it was when the order for confiscation was made that she went to the Police.

[35]   In her letter, Ms Anderson said she went to the Police Station with her friend Chris Robertson to sort out the issue. With her initial appeal, she filed a copy of an email from Mr Robertson to the District Court. In that email, Mr Robertson identified who he was and referred to the seizure of the vehicle. He said:

I have a security interest in this vehicle which is going to be sold off at turners auctions on wednesday the 23rd September we need to put the sale on hold so we can sort out the futrue [sic] of the vehicle back to its actual owner not the person the car is registered under.

[36]   Mr Robertson referred to the vehicle having been bought on 21 November 2019 for $6,500. There is no suggestion in Ms Anderson’s later affidavit that Mr Robertson had any security interest in the vehicle. Mr Robertson said in the email that “we” went to Community Law about “[our] rights”, that they were planning to go to the Disputes Tribunal, and that they were trying to get a copy of a receipt of purchase to prove that “we baught [sic] the motor vehicle”.

[37]   I accept Ms Anderson did go to the Police and complain that Mr Bruning had taken what she claims was her vehicle. She did that on 17 August 2020, the same date Mr Bruning appeared in court on a charge of driving while disqualified and an order was made for the confiscation of the vehicle. It is a remarkable coincidence that it was the same day Mr Bruning appeared in Court and the order was made for the confiscation of the vehicle and for it to be delivered to the Registrar by 4.00 pm, that

Ms Anderson went to the Police at 5.09 pm to complain that Mr Bruning had taken the vehicle.

[38]   The Police acknowledgment records Ms Anderson made the complaint at 5.09 pm on 17 August 2020. This would have been after Community Magistrate O’Brien made an order for the confiscation of the vehicle.

[39]   In all these circumstances, I infer when Ms Anderson acquired the Holden Commodore she knew Mr Bruning would be driving it and she knew, if he did so while disqualified, the vehicle could be confiscated.

[40]   Following a sale of the vehicle by the Registrar, the proceeds of sale must be applied, first, in payment of impounding costs and, second, in payment of the costs of sale including all costs incurred in seizing, towing and storing the vehicle.8 Given the state of the vehicle in February 2020 and the fact it had not had a warrant of fitness since August 2019, there could well be no net proceeds available to either Mr Bruning or anyone else after its sale.

[41]   Counsel for the Police suggested Ms Anderson may be entitled to any net proceeds of the sale through giving notice to the Registrar of the District Court under s 137(3)(c) of the Sentencing Act that she claims to have a security interest in the vehicle.

[42]   Under s 141(1), any party to a security agreement over a confiscated motor vehicle (apart from the offender) may apply to the court at any time before the Registrar has disposed of the vehicle for an order directing the Registrar to transfer the motor vehicle to the party to a security agreement. Such an order would also direct that party to sell the motor vehicle and account for the proceeds of sale in a way that would enable that person to recover any costs and expenses of the sale and their entitlement under the security agreement. A security interest has the meaning given to it in s 17 of the Personal Property Securities Act 1999 (PPSA).9

8      Sentencing Act, s 137.

9      Land Transport Act, s 127(1).

[43]   Although I am not deciding the issue, Ms Anderson could face difficulties in establishing she has a security interest or that she was a party to a security agreement in connection with the vehicle because of the way security interest is defined in the PPSA. Ms Anderson is effectively claiming she was the true owner of the vehicle. She is not claiming that she had an interest in the vehicle as security for Mr Bruning making a payment to her or performing some obligation that he had to her.

[44]   If the Registrar does not accept Ms Anderson has a security interest in the vehicle, any net proceeds of sale could be payable to Mr Bruning but Ms Anderson would be able to claim the net proceeds of sale from him on the basis she was the true owner of the vehicle so that he has to account to her for the proceeds of sale. She was planning to make such a claim with the Disputes Tribunal after she had seen a notice that the vehicle was to be auctioned.

[45]   I accept it would not be straightforward for Ms Anderson to make such a claim. However, that difficulty arises because of the way she allowed others to be registered as the owner of the vehicle to avoid the vehicle being confiscated if Mr Bruning were caught driving it while disqualified. For that reason, I do not consider that any hardship she might encounter in making a claim against Mr Bruning would be “undue”.

Conclusion

[46]   In these circumstances, Ms Anderson has not persuaded me, on the balance of probabilities, that she will suffer undue hardship if, through Mr Bruning’s driving of the vehicle while disqualified, that vehicle is subject to an order for confiscation and will now be sold, with the proceeds to be applied in accordance with the provisions of the Sentencing Act.

[47]   Ms Anderson’s appeal against the order for the confiscation of the red 2002 Holden Commodore SS 5.7 V8, registration BAJ518 is dismissed.

Solicitors:

Public Defence Service, Christchurch Crown Solicitor, Christchurch.