Commissioner of Police v Cooper

[2024] NZHC 1246

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2023-442-041

[2024] NZHC 1246

IN THE MATTER OF

an on-notice application for a restraining order pursuant to ss 22(1), 24 and 25 of the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

HUNTER DAVID JOHN COOPER

Respondent

On the papers:

Counsel:

J M Webber for Applicant

R A Harrison for Respondent

Judgment:

17 May 2024

JUDGMENT OF GRAU J

[1]    On 2 October 2023, Ellis J made a without notice restraining order. The Commissioner filed an application for an on-notice restraining order on 9 October 2023 and on 2 February 2024 filed an amended on-notice application. On 5 February 2024, Gwyn J granted the Commissioner’s application for an on-notice restraining order by consent.

[2]    The Commissioner has subsequently filed an application for an order directing the Official Assignee to sell the following restrained property to preserve its value:

(a)a blue 2008 Lexus IS-F, registration number JGZ52; and

(b)a 2006 Toyota Landcruiser Prado, registration number DMS796.

COMMISSIONER OF POLICE v COOPER [2024] NZHC 1246 [17 May 2024]

[3]The respondent has confirmed there is no opposition to the application.

Analysis and decision

[4]    Section 33(1)(a) of the Criminal Proceeds (Recovery) Act 2009 (CPRA) provides that further orders may be sought by the applicant for a restraining order. The Court may make any such order if it considers it appropriate.1 This requires the Court to be satisfied that such an order should be made.

[5]    Section 35 of the CPRA outlines the type of further orders the Court may make. They include, at s 35(e)(v), an order directing the Official Assignee (OA) to sell restrained property in order to preserve its value.

[6]    The reasons for making an order for sale to preserve value have been described by this Court in Commissioner of Police v Cavanagh.2 Typically sale orders are sought where restrained assets have high depreciation rates combined with storage and insurance costs which ultimately decrease the potential return to the Commissioner and/or the party claiming an interest in the assets. The additional benefit of sale is the ability of the OA to hold the funds from the sale in an interest-bearing account.

[7]    In Commissioner of Police v Drummond, Lang J considered that the following factors need to be taken into account when determining an application for sale order.3

… 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.

[8]    The critical issue then is whether the value of the vehicles in this case are likely to be sufficiently eroded as a result of depreciation and/or holding costs such that their sale is appropriate to preserve value. That is not the only consideration, however.  If a vehicle is held as an investment or has some special sentimental value to the respondent, such costs may not be enough.4

1      Section 34 CPRA.

2      Commissioner of Police v Cavanagh [2014] NZHC 2978.

3      Commissioner of Police v Drummond [2018] NZHC 1730, at [15].

4      See, for example, Commissioner of Police v Blance [2018] NZHC 108 at [52].

[9]    In this case, it has not been suggested that either vehicle is held as an investment, or has any special or sentimental value, or is a classic. The application for an order for sale is not opposed.

[10]   The information contained in the affidavit of Detective Alan Newton in support of the application for a restraining order, dated 13 September 2023, puts the estimated value of the Toyota Prado at $17,500, and the estimated value of the Lexus at $36,650.

[11]   Costs of $6,785 were incurred in uplifting and storing the two vehicles. The total  storage  cost  to  date  since  the  OA  took  possession  of  the  two  vehicles  is

$12,182.90. Transport and insurance costs have also been incurred.

[12]   I agree that the information demonstrates the vehicles are of modest value, the costs of storage and insurance are accumulating and there is a risk that the value of the vehicles may be consumed entirely by these costs.

[13]Accordingly, sale is appropriate to preserve value, and I grant the application.

Result

[14]   I grant the Commissioner’s application for an order for sale of the following two restrained vehicles:

(a)a blue 2008 Lexus IS-F, registration number JGZ52; and

(b)a 2006 Toyota Landcruiser Prado, registration number DMS796.

Grau J

cc:        J M Webber, Nelson for Applicant

Inangahua Chambers, Blenheim for Respondent