Commissioner of Police v Hastie-Sonnenberg

[2024] NZHC 200

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2023-412-122

[2024] NZHC 200

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER

of an application pursuant to ss 43, 44 and 49 of the Act

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

NATHAN GEORGE HASTIE- SONNENBERG

First Respondent

AND

JASMINE LOUISE DICKENS-PRATT

Second Respondent

Appearances:

R D Smith for Applicant

No appearance for Respondents

Judgment:

16 February 2024

(Determined on the papers)

JUDGMENT OF OSBORNE J

[1]        The Commissioner of Police applied under the Criminal Proceeds (Recovery) Act 2009 for an asset forfeiture order in relation to a total cash sum of $29,420 (the cash).

[2]        As neither respondent opposed the application, the hearing of the application took place on a formal proof basis under r 15.9(1) High Court Rules 2016.

COMMISSIONER OF POLICE v HASTIE-SONNENBERG [2024] NZHC 200 [16 February 2024]

[3]        The Court made the order applied for, namely an order that the cash vested in the Crown absolutely and was to be in the Official Assignee’s custody and control.1

Recall application

[4]        By memorandum, Mr Smith for the applicant has requested that the order be amended to provide not only for the forfeiture of the cash but also provide for any interest that has accrued on the cash sum.

[5]        Given that judgment has been given in writing on the Commissioner’s application, Mr Smith’s memorandum is treated as a request for the recall of judgment under r 11.9 High Court Rules 2016.

Principles of recall

[6]        The settled principles applying to recall of judgment are those identified in Horowhenua County v Nash (No. 2) (Horowhenua).2 In that case, Wild CJ recognised three categories in which a judgment not perfected may be recalled:3

(a)where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority;

(b)where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and

(c)there is some other very special reason.

1      Commissioner of Police v Hastie-Sonnenberg [2024] NZHC 101 at [8].

2      Horowhenua County v Nash (No. 2) [1968] NZLR 632 (SC) [Horowhenua]. In Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [23(b)(i)–(ii)] the Court of Appeal confirmed the Horowhenua criteria are to be applied strictly and that applications which merely seek to relitigate matters already considered, or to challenge substantive findings of fact or law, will not be entertained.

3      Horowhenua, above n 2, at 633.

Discussion

[7]Plainly, this request for recall does not fall within the first two categories in

Horowhenua. Is there then any “other very special reason” for recalling the judgment?

[8]        In this case, the Commissioner’s application sought a forfeiture order only in relation to the cash and did not seek an order in relation to any interest that accrued on the cash (if invested). Accordingly, when the application was set down for formal proof, the respondents had received no notice that the relief sought would include any interest that accrued on the cash (if invested).

[9]        The courts have previously rejected applications for recall of judgment where interest on a judgment sum was not sought in the substantive application or at trial. Two authorities are referred to by the authors of McGechan on Procedure where the commentary records:4

Nor is a situation where a matter, such as interest on a judgment sum, is raised as an afterthought [a ground for recall]: Ashe v Tauranga Marina Soc5 and Cooper-Davies Trustees No 6 Ltd v Cooper Trustees No 11 Ltd.6

[10]      With effect from 1 January 2018, the Interest on Money Claims Act 2016 (the Act) has placed a greater importance upon the articulation of any claim for interest on money judgments. The mandatory statutory requirements under s 25 of the Act go so far as to preclude an award of interest on money judgments where the claim is not adequately specified in a statement of claim (unless the Court has first made or accepted an amendment to the notice of claim).7 While the Commissioner’s claim for forfeiture of an asset (which in this case happens to be money) is strictly speaking of a different nature to a claim for “payment of money”,8 the philosophy underlying s 25 of the Act should, since 2018, also apply to putting respondents to an asset forfeiture

4      Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR11.9.01(7)].

5      Ashe v Tauranga Marina Society (1991) 4 PRNZ 89 (HC).

6      Cooper-Davies Trustees No 6 Ltd v Cooper Trustees No 11 Ltd [2014] NZHC 335. On appeal in Cooper-Davies Trustees No 6 Ltd v Cooper Trustees No 11 Ltd [2015] NZCA 197, the Court of Appeal in allowing the appeal and entering judgment for the plaintiffs for a greater sum also awarded interest notwithstanding the absence of an express claim for interest on the basis that had not prejudiced the defendants — the High Court judgment in that case followed a defended hearing.

7      Interest on Money Claims Act 2016, s 25(4).

8      See the definition of “money judgment” in s 6 Interest on Money Claims Act 2016.

application on notice of the fact that such relief is being sought. Here, the Commissioner’s application did not put the respondents on notice that interest was being sought. Amendment of the application was not sought or made. Equally, an award of interest was not raised for the Commissioner at the time of the formal proof hearing.

[11]      This is not a case that can be brought within the third Horowhenua category of “other very special reasons”. While it may be arguable that the apparent oversight to seek judgment for any accrued interest constitutes a “special reason”, it cannot properly be described as a “very special reason”. It has arisen, in terms of the McGechan commentary referred to at [9] above, as “an afterthought”.

The outcome

[12]The application for recall of judgment is accordingly refused.

[13]The judgment is to be perfected in its existing terms.

Osborne J

Solicitors:

R P Bates, Crown Solicitor, Dunedin