Commissioner of Police v Cooley

[2025] NZHC 1519

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2023-442-000055 [2025] NZHC 1519

IN THE MATTER             of an on notice application for an order for

sale to preserve value pursuant to ss 33 and 35(e)(v) of the Criminal Proceedings (Recovery) Act 2009

BETWEENTHE COMMISSIONER, THE NEW ZEALAND POLICE

Applicant

AND  RAYMOND COOLEY

First Respondent

TIARE THOMAS EPERE

Second Respondent

IRENA TEARIKIMATEPO EPERE (NEE OAARIKI)

Third Respondent

ARTHUR STEVEN TARAWA
Fourth Respondent

STENTON PETER WILDE
Fifth Respondent

MARGARET JOY WILDE
Sixth Respondent

JESSICA MARGARET ASHE (NEE GODFREY)

Seventh Respondent

FENIXS TARAWA
Eighth Respondent

NORMA WAIARIA PEKAMA
First Interested Party

THE COMMISSIONER, THE NEW ZEALAND POLICE v COOLEY [2025] NZHC 1519 [11 June 2025]

RIKI LEON COOLEY

Second Interested Party

ARLEE TARAWA

Third Interested Party

ESEKIAH FAAULI

Fourth Interested Party

Hearing:                   (On the papers)

Counsel:                   J M Webber for Applicant

Judgment:                11 June 2025

JUDGMENT OF LA HOOD J

[1]                 The Commissioner has filed an application under ss 33 and 35(e)(v) of the Criminal Proceeds (Recovery) Act 2009 (the Act) seeking an order for sale of certain restrained property so as to preserve its value. The property is:

(a)A 2016 Harley Davidson motorcycle, formerly with registration C8BND, now re-registered C7ZAT, attributed to Stenton Wilde.

(b)A 2006 Harley Davidson Street Rod motorcycle registration C7JUY, attributed to Raymond Cooley.

(c)Parts of a 2005 Harley Davidson V Rod motorcycle, registration 82ZEH, attributed to Raymond Cooley.

(d)A 200HP Yamaha outboard motor, associated with a 2014 Voyager Trailer registration 10F89, registered to Fenixs Tarawa, carrying a Ramco aluminium fishing boat, attributed to Arthur Tarawa.

[2]                 The application  is  no  longer  pursued  at  this  time  in  relation  to  the  2016 Harley Davidson motorcycle, formerly with registration C8BND, now re-

registered C7ZAT, as the Commissioner has identified a person who claims an interest in that motorcycle and has indicated that sale is opposed.

[3]                 The first respondent, Raymond Cooley, has not taken any steps in the proceeding or indicated any opposition to the application for a sale order in relation to the 2006 Harley Davidson Street Rod, or the parts of a 2005 Harley Davidson V Rod.

[4]                 The fourth respondent, Arthur Tarawa, has indicated through counsel that the application for a sale order is not opposed in relation to the 200HP Yamaha outboard motor.

[5]                 The eighth respondent, Fenixs Tarawa, has not taken any steps in the proceeding or indicated any opposition to the application for a sale order in relation to the 200HP Yamaha outboard motor.

[6]                 There has previously been a sale order in relation to the Ramco boat and Voyager trailer with which the 200HP Yamaha outboard motor is associated.

Sale orders – the law

[7]                 I gratefully adopt Gwyn J’s summary of the law from a previous decision granting sale orders in this case:1

[9]        The  vehicles  are  currently  restrained  property   under   the Official Assignee’s (OA’s) custody and control. The effect of a restraining order is to preserve the property itself and not its value.2 The Act permits the OA to do anything reasonably necessary to preserve the vehicles’ value.

[10]      Section 33 of the Act allows the Commissioner to apply for sale orders in respect of property subject to a restraining order. Under s 34 the Court can make further orders in respect of restrained property at any time before the expiry of the restraining order. The Court may make any such order if it considers it appropriate. This requires the Court to be satisfied that such an order should be made.3

[11]      Any further order may, but need not, be an order of one or more of the types of orders referred to in s 35. Under s 35(e)(v) the Court may make an order directing the OA to “sell restrained property (including, without

1      Commissioner of Police v Colley [2024] NZHC 3900 (one footnote omitted).

2      Commissioner of Police v Skiffington [2017] NZHC 1687 at [38].

3      Commissioner of Police v Taaka-Te Kaute [2024] NZHC 280 at [10].

limitation, a business) in order to preserve the value of the restrained property”.

[12]      The Commissioner is not required to prove on a balance of probabilities that sale is required,4 but must persuade the Court the sale order is appropriate, and, where an order of the type set out in s 35(e)(v) is sought, that the order is necessary to preserve the value of the restrained property.5

[13]      Justice Lang in Commissioner of Police v Drummond outlined a variety of factors relevant to the proposed sale of a restrained motor vehicle:6

… Factors that will need to be taken into account include the nature and value of the asset, the length of time before the substantive proceeding will be determined, the extent to which the asset may depreciate during that period and the wishes of the owner of the assets and/or those who may have an interest in it.

[14]      Where restrained property is depreciating in value, a sale order may be necessary to preserve its value. Depreciation ultimately decreases the potential return to the Commissioner and/or the parties who claim an interest in the assets.

[15]      The Court of Appeal in the recent decision McQuade v Commissioner of Police noted that different judges have taken different views in relation to the relevance of the holding costs associated with keeping the properties restrained, such as storage and insurance.7 Giving the judgment of the Court, Wylie J considered that a reduction in the eventual return caused by holding costs is a factor which can be considered in the exercise of the discretion, providing a sale order is otherwise appropriate in order to preserve the value of the restrained property.

Decision

[8]                 There is no suggestion that any of the property was being held by the respondents as an investment, nor that any of it has special or sentimental value.

[9]                 The affidavit of Detective Ruth Collins in support of the application sets out the valuation (both market value and E-value) and storage costs for the items for which the sale order is sought,8 and the rate of depreciation for the motorcycles. The depreciation rate is based on Inland Revenue’s IR265 report, which provides for a rate of 30 per cent per annum for motorcycles for business account purposes. The storage

4      Commissioner of Police v Parker [2019] NZHC 1506 at [31].

5      McQuade v Commissioner of Police [2024] NZCA 46 at [24].

6      Commissioner of Police v Drummond [2018] NZHC 1730 at [15]; and also Commissioner of Police v Milosevic [2019] NZHC 202 at [95(c)].

7      McQuade v Commissioner of Police, above n 5, at [27].

8      Except there is no valuation provided for the 200HP Yamaha outboard motor.

costs are also substantial for the HP Yamaha outboard motor and the 2006 motorcycle, registration C7JUY.

[10]             Based on this evidence, and in the context of no steps being taken in opposition, I am satisfied sale orders are appropriate due to depreciation in the value of the property and reduction in return caused by storage costs.

Result

[11]             I make sale orders in relation to the items set out above at [1](b)–(d) on the terms set out in the Commissioner’s application dated 14 April 2025.

La Hood J

Solicitors:

O’Donoghue Webber, Nelson for Applicant