Commissioner of Police v Cooley
[2024] NZHC 3900
•19 December 2024
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CIV-2023-442-055
[2024] NZHC 3900
UNDER the Criminal Proceeds (Recovery) Act 2009 IN THE MATTER
of an on notice application for an order for sale to preserve value pursuant to ss 33 and 35(e)(v)
BETWEEN
THE COMMISSIONER OF POLICE
Applicant
AND
RAYMOND COOLEY
First Respondent
TIARE THOMAS EPERE
Second Respondent
IRENA TEARIKIMATEPO EPERE (nee OAARIKI)
Third Respondent
Continued…
Hearing: 16 December 2024 Appearances:
J M Webber for Applicant
I A Jayanandan for Third Respondent L Tarawa in person
Judgment:
19 December 2024
JUDGMENT OF GWYN J
(Early sale orders)
COMMISSIONER OF POLICE v COOLEY [2024] NZHC 3900 [19 December 2024]
AND ARTHUR STEVEN TARAWA
Fourth Respondent
STENTON PETER WILDE
Fifth RespondentMARGARET JOY WILDE
Sixth RespondentJESSICA MARGARET ASHE (nee GODFREY)
Seventh Respondent
FENIXS TARAWA
Eighth RespondentAND
NORMA WAIARIA PEKAMA
First Interested PartyRIKI LEON COOLEY
Second Interested PartyARLEE TARAWA
Third Interested Party
ESEKIAH FAAULI
Fourth Interested PartyLEAH MARINA TARAWA
Fifth Interested Party
[1] There are restraining orders in place in relation to a number of items of property owned by the respondents and/or interested parties.
[2] On 19 November 2024 the Commissioner applied for sale orders relating to some of the restrained property (sale order application).
[3] Counsel for the Commissioner confirms that all parties have been served with the sale order application.
[4] Counsel for each of the second and fourth respondents have advised that their clients consent to a sale order being made in relation to the property with which they are connected, being:
(a)In relation to the second respondent, Tiare Epere:
(i)a 2015 Harley Davidson Night Rod motorbike, registration A4LJG, registered to Tiare Epere;
(ii)Two Seadoo Jet skis on a tandem trailer, registration 234Y8, registered to Tiare Epere;
(iii)A 2019 Ford Ranger Wild track vehicle, registration MNP246, registered to Tiare Epere.
(b)In relation to the fourth respondent Arthur Tarawa:
(i)A 2005 Harley Davidson V Rod motorbike registration C8AFH.
[5] Ms Jayanandan also indicated that the third respondent, Ms Epere (Oaariki), does not oppose the orders sought in relation to the White 2016 Toyota Highlander Station wagon, registration JWK630, registered in her name.
[6] The fifth interested party, Ms Leah Tarawa, has filed a memorandum indicating that she is the owner of the 2016 Harley Davidson V-rod motorbike registration C5LHE, listed in the sale order application. Ms Tarawa appeared in person at the call
on 16 December 2024 and confirmed that she opposes the sale order application in respect of that vehicle. Mr Webber for the Commissioner advised that the Police are making further inquiries about this vehicle.
[7] Mr Webber advises that the first respondent, Raymond Cooley, is not affected by the sale order application. The Second Interested Party, Riki Cooley, has taken no steps in the proceeding, and appears to have disappeared.
[8] Counsel summarises that, with the exception of the vehicle registered to Ms Tarawa, the application for sale orders is either not opposed, or no steps have been taken, by the relevant party. Counsel invites the Court to make orders on the papers accordingly.
Sale orders — the law
[9] The vehicles are currently restrained property under the Official Assignee’s (OA’s) custody and control.1 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.3
[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.4
[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 limitation, a business) in order to preserve the value of the restrained property”.
1 Subject to the restraining order referred to at [1] above.
2 Commissioner of Police v Skiffington [2017] NZHC 1687 at [38].
3 Criminal Proceeds (Recovery) Act 2009, s 80.
4 Commissioner of Police v Taaka-Te Kaute [2024] NZHC 280 at [10].
[12] The Commissioner is not required to prove on a balance of probabilities that sale is required,5 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.6
[13] Justice Lang in Commissioner of Police v Drummond outlined a variety of factors relevant to the proposed sale of a restrained motor vehicle:7
… 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.8 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.
Discussion
[16] Detective Ruth Collins has filed affidavit evidence in support of the application for early sale orders. Detective Collins’ evidence sets out the valuation (both market value and E-value), storage cost and rate of depreciation for each of the items for which sale orders are sought.
5 Commissioner of Police v Parker [2019] NZHC 1506 at [31].
6 McQuade v Commissioner of Police [2024] NZCA 46 at [24].
7 Commissioner of Police v Drummond [2018] NZHC 1730 at [15]; and also Commissioner of Police v Milosevic [2019] NZHC 202 at [95(c)].
8 McQuade v Commissioner of Police, above n 6, at [27].
[17] The depreciation rates are based on Inland Revenue’s IR265 report of depreciation rates and range from 10 per cent per annum for non-steel hulled fishing vessels, 30 per cent per year for motorcycles, up to 40 per cent per annum for jet skis and fishing engines.
[18]The total storage costs are also significant.
[19] On the basis of this evidence, and in the context of there being consent, or no opposition, to the orders sought, or no steps taken, by the affected parties, I am satisfied that a sale order should be made.
Result
[20] I make orders in relation to the items set out at [2(a)-(c)] inclusive and [2(e)- (i)] inclusive of the Commissioner’s application of 19 November 2024 and on the terms set out in the application.
[21] The Commissioner’s application in relation to the 2016 Harley Davidson V Rod motorbike, registration C5LHE, registered to Leah Tarawa, is adjourned while Police make further inquiries about Ms Tarawa’s interest in the vehicle. The application will be called again in the Criminal Proceeds List on 3 February 2025.
Gwyn J
Solicitors:
O’Donoghue Webber, Nelson for Applicant Zindels, Nelson for Sixth Respondent
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