Commissioner, New Zealand Police v Chuyko

[2025] NZHC 962

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2025-485-233

[2025] NZHC 962

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER

of an application under ss 22 and 25

BETWEEN

THE COMMISSIONER, NEW ZEALAND POLICE

Applicant

AND

MARYNA CHUYKO

Respondent

Hearing:	On the papers
Counsel:	E M Ferrier and F F Nizam for Applicant
Judgment:	17 April 2025

JUDGMENT OF McHERRON J

(Without notice application for restraining order)

[1]    The Commissioner of the New Zealand Police (the Commissioner) applies without notice for restraining orders under ss 22 and 25 of the Criminal Proceeds (Recovery) Act 2009 (the Act). The Commissioner seeks to restrain interests in a residential property in Whanganui registered in the name of Maryna Chuyko, as described in the Commissioner’s application (the Property) or any proceeds arising from any sale of the Property.

[2]    The Property has been listed for a deadline sale with the deadline expiring at 3 pm on 16 April 2025.   However, the Commissioner submits that  (at least  as at   17 April), it does not appear the Property sold by this deadline. However, the Commissioner is concerned that the property may sell by the time any without notice

THE COMMISSIONER, NEW ZEALAND POLICE v CHUYKO [2025] NZHC 962 [17 April 2025]

restraining order is made. For that reason, the application is for restraining orders over the Property, or in the alternative, any proceeds arising from any sale of the Property.

[3]    The reason for the application being brought without notice is that the Commissioner is concerned that if notice of the proceeding was given to the respondent she (or others on her behalf) may attempt to dispose of or conceal the Property or any proceeds arising from any sale of it.

[4]    In the police specialist investigator’s affidavit filed in support of the application, it is stated that there are reasonable grounds to believe that Ms Chuyko has unlawfully benefitted from significant criminal activity, namely involvement in benefit fraud.

[5]    In 2025, the Ministry of Social Development (the Ministry) commenced an investigation into benefit fraud involving Ms Chuyko. The investigation identified that she had been fraudulently claiming income-related rent payments for 13 years between 12 January 2012 and 31 March 2025.

[6]    Ms Chuyko has been living in social housing between September 2007 and March 2025. She was receiving income-related rent payments throughout the whole period. The calculation of income-related rent payments is based on an individual’s weekly household income.

[7]    On 12 January 2012, Ms Chuyko purchased the Property with her ex-partner. There were no mortgages or loans secured over the Property. The title of the Property was transferred into their joint names. On 26 September 2023, Ms Chuyko obtained sole ownership of the Property.

[8]    On 27 March 2015, Ms Chuyko and her ex-partner jointly purchased a second property. The second property was transferred into the ex-partner’s sole ownership on 26 September 2023. While Ms Chuyko received a sum of money for her share of this second property, that sum is not currently included in the Commissioner’s application.

[9]    The Commissioner alleges that Ms Chuyko failed to inform the Ministry of her change in housing circumstances and continued to benefit from income-related rent payments for 13 years. The Commissioner alleges she derived a benefit equating to the full value of the income-related rent payments for this period, totalling

$324,980.25.

[10]   The Commissioner alleges that Ms Chuyko completed and submitted several forms in which she failed to declare that she had any assets during the period when she held joint or sole ownership of the Property and, at times, the second property.

[11]   The Ministry commenced an investigation on 25 February 2025. It formally interviewed Ms Chuyko. She advised she was not aware she was on the titles of either the Property or the second property and did not think she had to declare such information to the Ministry.

[12]   The  Ministry  completed  its  investigation  and  wrote  to   Ms Chuyko  on 31 March 2025 advising her that it had determined she was overpaid $324,980.25. The Ministry advised her that it was in the process of determining whether her actions amounted to an offence and if so, whether this would result in prosecution.

[13]   On 10 April 2025, Ms Chuyko flew to the United States. She purchased her tickets five days before the flight and did not purchase return tickets at the time of booking.

Legal principles

[14]   Restraining orders are issued on the basis of “reasonable grounds to believe rather than proof” that the respondent has unlawfully benefitted from significant criminal activity or that the property is tainted property.1

[15]   The following principles were summarised in Commissioner of Police v Smith.2 The threshold for making a restraining order is “relatively low”. The Court is not required to make a finding the respondent has unlawfully benefitted from

1      Vincent v Commissioner of Police [2013] NZCA 412 at [47].

2      Commissioner of Police v Smith [2017] NZHC 10 at [10].

significant criminal activity. Restraining orders are often sought in situations of urgency. They are temporary orders to give the police time to gather further evidence leading to possible forfeiture of property. The Commissioner’s onus is to adduce a sufficient evidential basis to enable the Court to be satisfied it has reasonable grounds for the requisite belief. Normal admissibility rules are relaxed.

[16]   “Significant criminal activity” is defined under s 6 of the Act as activity engaged in by a person that consists of one or more offences punishable by a maximum term of five years’ imprisonment or more, or for which property, proceeds or benefits have been derived.3 A definition of “unlawfully benefitted from significant criminal activity” is contained in s 7.

7Meaning of unlawfully benefited from significant criminal activity

In this Act, unless the context otherwise requires, a person has unlawfully benefited from significant criminal activity if the person has knowingly, directly or indirectly, derived a benefit from significant criminal activity (whether or not that person undertook or was involved in the significant criminal activity).

[17]   Section 22 of the Act allows for restraining orders to be made without notice if the Court is satisfied “there is a risk of the proposed restrained property being destroyed, disposed of, altered, or concealed if notice were given to the person or persons. If the without notice restraining order is made, the Commissioner must apply for an on-notice application within seven days of the granting of the without notice restraining order for that order to remain in force.”4 In that case the order continues in force until the application on notice is disposed of.5

My assessment

[18]   Based on the affidavit evidence supplied by the Commissioner I consider there are reasonable grounds to believe that Ms Chuyko has been involved in significant

3      Above the “threshold amount”, defined as $30,000 in s 5 of the Criminal Proceeds (Recovery) Act 2009.

4      Criminal Proceeds (Recovery) Act, s 39.

5      Section 39.

criminal activity,6 from which she has unlawfully benefitted, and that Ms Chuyko has interests in the Property.

[19]   Both obtaining by deception and deliberately doing or saying anything for the purpose of misleading the Ministry would constitute significant criminal activity under the Act given the amount of money allegedly unlawfully obtained. I accept that if correct, the Commissioner’s allegation that Ms Chuyko failed to declare her ownership of the Property and (at times) the second property, while living in social housing and receiving income-related rent payments would give rise to reasonable grounds to believe that she has been involved in deliberately doing or saying anything for the purpose of misleading or attempting to mislead the Ministry, and obtaining by deception.

[20]   I also accept that the evidence set out in the specialist investigator’s affidavit would, if correct, give rise to reasonable grounds to believe that Ms Chuyko was involved in deliberately doing or saying anything for the purpose of misleading or attempting to mislead the Ministry, and obtaining by deception.

[21]   For the purposes of the restraining order, I accept that the Commissioner has established that Ms Chuyko has interests in the Property (and any proceeds arising from any sale of the Property) because it is solely registered in her name.

[22]   The Commissioner has not identified any potential substantive grounds of opposition to the making of restraining orders under s 25 of the Act. However, it has advised that any prosecution of Ms Chuyko is likely to be put on hold until she returns to New Zealand.

[23]   The Commissioner also points out that Ms Chuyko may deny any involvement in the fraud. However the Commissioner points out that the definition of “significant criminal activity” under the Act does not require that a person be charged with or convicted of an offence in connection with the alleged criminal activity.

6      Obtaining by deception, ss 240 and 241 of the Crimes Act 1961; deliberately doing or saying anything for the purpose of misleading or attempting to mislead the Ministry, s 131(1)(b) of the Public and Community Housing Management Act 1992.

[24]   In respect of Ms Chuyko’s claim that she was not aware she was on the titles of the Property or the second property, the Commissioner submits that it is unlikely that Ms Chuyko would not have been aware of her ownership of these properties, especially given she received a payment for her share of the second property.

[25]   The Commissioner submits that any defence based on absence of belief that Ms Chuyko had to declare such information to the Ministry is unlikely to be a legitimate ground of opposition.

[26]   Further, the Commissioner suggests that Ms Chuyko may challenge the claimed amount of total income-related rent payments as being too high. The Commissioner acknowledges that if correct, this may affect the quantum of the alleged offending, but that it is unlikely to be a legitimate ground of opposition.

[27]   The Ministry has carried out financial analysis of Ms Chuyko’s bank accounts, but has not yet reviewed that analysis.

[28]   Bringing all the strands together, I accept that the Commissioner has established a reasonable evidential basis for the restraining orders sought. Further, I accept that the Commissioner has established that there is a risk of the proposed restrained Property being disposed of if notice were given to the respondent. I accept the Commissioner’s submission that as Ms Chuyko is now offshore and has not given any indication that she will return, it is likely she would attempt to remit the funds offshore. Further I accept the Commissioner’s submission that the current equity held in the Property would be relatively easy to use as a security against a loan, thereby dissipating the equity in the Property.

Result

[29]   Accordingly, I allow the Commissioner’s without notice application for a restraining order in the terms set out in the application and in the draft order provided to the Court. In accordance with s 39 of the Act, the Commissioner must file an on- notice application within seven days. Once that occurs, Ms Chuyko will be able to file a notice of opposition to the application if she chooses to do so.

[30]If opposed, the matter will then be listed for a prompt hearing.

McHerron J

Solicitors:

Luke Cunningham Clere, Wellington for Applicant