Commissioner of Police v Pirini
[2022] NZHC 2326
•12 September 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-970
[2022] NZHC 2326
UNDER Criminal Proceeds (Recovery) Act 2009 BETWEEN
COMMISSIONER OF POLICE
Applicant
AND
POMARE JAMES PATRICK PIRINI
Respondent
Hearing: 8 July 2022 Appearances:
MR Harborow and LSN Lai for the Applicant RM Mansfield KC for the Respondent
Judgment:
12 September 2022
JUDGMENT OF FITZGERALD J
This judgment was delivered by me on 12 September 2022 at 3.30pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Meredith Connell, Auckland To: R Mansfield KC, Auckland
NZ POLICE v PIRINI [2022] NZHC 2326 [12 September 2022]
Introduction and background
[1] The Commissioner of Police (the Commissioner) applies for an order pursuant to s 32 of the Criminal Proceeds (Recovery) Act 2009 (the Act) setting aside a disposition of or dealing with restrained property, namely a 2013 Harley Davidson motorcycle, registration C2DWW (the Harley Davidson).
[2] The Harley Davidson was the subject of without notice restraining orders (the restraining orders) made by Moore J on 3 June 2021. At that time, its registered owner was the respondent, Mr Pirini. On 7 June 2021, the investigation in the context of which the restraining orders had been sought and made was terminated and Mr Pirini was arrested and served with the restraining orders. He was taken into custody that day.
[3] The next day, Mr Pirini’s father (to whom I will refer as Mr Pirini Snr) transferred the registration of the Harley Davidson into his name. It is this step which the Commissioner says was a “dealing” with the Harley Davidson in contravention of the restraining orders.
[4] In an affidavit filed in opposition to the Commissioner’s application, Mr Pirini Snr says he effected the transfer of registration because he was aware Mr Pirini had been taken into custody and so he (Mr Pirini Snr) would be able to deal with the Harley Davidson if he needed to. Mr Pirini Snr says he did not have possession of the Harley Davidson at that time. He also says that he was unaware of the restraining orders when he transferred the registration into his name, and would not have done so had he been aware of the orders. Neither Mr Pirini nor Mr Pirini Snr dispute that Mr Pirini remains the owner (including the beneficial owner) of the Harley Davidson, despite the change in registration.
[5] On 16 September 2021, and by consent, on notice restraining orders were made over all property associated with Mr Pirini. Those restraining orders listed Mr Pirini as the registered owner of the Harley Davidson.
[6] On 23 November 2021, Mr Pirini was examined about the location of the Harley Davidson.1 For the first time, he suggested that at some point “not too long” before his arrest, he had dismantled the Harley Davidson and sold some of the parts. He said that the registration plate, chassis, engine and fenders were still in his possession immediately prior to his arrest.
[7] Mr Pirini Snr says in his affidavit that some time after becoming aware of the restraining orders, the remaining parts of the Harley Davidson were dropped at his property so they could be surrendered to the Commissioner. Those parts were limited to the frame and registration plate and were collected from Mr Pirini Snr on 17 February 2022. The whereabouts of the remaining parts, including the engine and fenders, remains unknown.
Legal principles
Section 32 of the Act
[8] Counsel for the Commissioner, Mr Harborow, advises that to counsel’s knowledge, this is the first application and decision under s 32 of the Act.
[9]Section 32 provides as follows:
32 Certain disposition or dealing set aside from restrained property
(1)A successful applicant for a restraining order may apply to the court that made the restraining order for an order that a disposition or dealing be set aside on the ground that restrained property was disposed of, or otherwise dealt with, in contravention of the restraining order.
(2)On an application under subsection (1), the court may—
(a) set the disposition or dealing aside—
(i)as from the day on which the disposition or dealing took place; or
(ii)as from the day of the order; and
(b) declare the respective rights of any persons who acquired interests in the property on or after the day on which the disposition or dealing took place and before the day of the order.
1 Pursuant to orders made under ss 34 and 35 of the Criminal Proceeds (Recovery) Act 2009.
[10] Neither “disposition” nor “dealing” is defined in the Act. While the Commissioner does not suggest that the change in the Harley Davidson’s registration was a “disposition”, it is nevertheless helpful (in the context of considering what amounts to a “dealing”) to address its meaning.
[11]Various dictionary definitions of “disposition” include the following:
(a)In the Oxford English Dictionary:2
disposition, n.
I. The action or faculty of disposing, the condition of being disposed.
1. a. The action of setting in order, or condition of being set in order; arrangement, order; …
2. a. Arrangement (of affairs, measures, etc.), esp. for the accomplishment of a purpose; plan, preparation; condition or complexion of affairs.
…
4. a. The action of disposing of, putting away, getting rid of, making over, etc. (see DISPOSE …); bestowal; spec. in Law, the action of disponing; bestowal or conveyance by deed or will.
(b)In the Collins English Dictionary:3
disposition, n.
…3 another word for disposal
…5 archaic manner of placing or arranging
disposal, n.
…2 placement or arrangement in a particular order
…4 the act or process of transferring something to or providing something for another …
(c)In the New Zealand Oxford Dictionary:4
disposition, n.
…2a setting in order, arranging. …
…
2 Oxford English Dictionary (online ed, Oxford University Press), definition of “disposition”.
3 Collins English Dictionary (13th ed, HarperCollins Publishers, Glasgow, 2018) at 575.
4 Tony Deverson and Graeme Kennedy (eds) The New Zealand Oxford Dictionary (Oxford University Press, Melbourne, 2008) [New Zealand Oxford Dictionary] at 310.
4a a bestowal by deed or will. …
[12]To “dispose” of something is defined in various dictionaries as follows:
(a)In the Oxford English Dictionary:5
dispose, v.
…
8. to dispose ofa. To make a disposition, ordering, or arrangement of; to do what one will with; to order, control, regulate, manage: …
…
c. To make over or part with by way of sale or bargain, sell.
(b)In the Collins English Dictionary:6
dispose, v.
a to deal with or settle
b to give, sell, or transfer to another c to throw out or away
…
(c)In the New Zealand Oxford Dictionary:7
dispose, v.
…
dispose of 1a deal with. b get rid of.
…
2 sell.
[13] I have not found these dictionary definitions particularly illuminating. As the Court of Appeal observed in Stockco Ltd v Gibson:8
… we doubt that much is to be gained by using synonyms of the statutory language. In the end the statutory words [“ordinary course of business of the seller”] are everyday terms having common meaning and are reasonably clear in their own right. The hard part is applying them to the facts of the case. We do not think that the exercise is greatly assisted by applying the facts to similar but not identical wording.
5 Oxford English Dictionary, above n 2, definition of “dispose”.
6 Collins English Dictionary, above n 3, at 575.
7 New Zealand Oxford Dictionary, above n 4, at 310.
8 Stockco Ltd v Gibson [2012] NZCA 330, (2012) 11 NZCLC 98-010 at [44].
[14] The interpretation of “disposition” (and “was disposed of”) as used in s 32 is best approached by considering the ordinary meaning of what are everyday terms, in their context and in light of the purposes of the Act. Approached in this way, and while not purporting to formulate an exhaustive meaning of these terms, a “disposition”, or property that “was disposed of”, will likely involve some action taken to divest oneself of property, in either a physical or legal sense, and most usually in a permanent sense. So, for example, to dispose of a computer would include to give it away, sell it (or in some other way transfer ownership rights to it), throw it away, destroy or discard it. But for the purposes of s 32, certain dispositions may be “set aside” by the Court. It is difficult to envisage how a Court might set aside the destruction of an item of property, or similarly the discarding or throwing away of property. Accordingly, and at least for the purposes of an application under s 32, the types of disposition captured by that provision will typically involve some transfer of an interest in or right to possession or control of an item of property, such transaction being amenable to being “set aside” by the Court.9
[15] As mentioned earlier, the Commissioner says that the transfer of the Harley Davidson’s registration to Mr Pirini Snr amounted to a “dealing” for the purposes of s 32. “Dealing” is also undefined in the Act, as is the phrase “dealt with”.
However, “dealing with” is defined in s 5(1) of the Act as follows:10
dealing with, in relation to property—
(a)means to use or deal with property in any way and by any means; and
(b)includes,—
(i) if a debt is owed by a person, making a payment to any person to reduce that debt; and
(ii) removing property from New Zealand; and
(iii) receiving or making a gift of property; and
9 Noting the extended definition of “interest” in the Act, which is not limited to a legal or equitable estate in property, but includes “a right, power, or privilege in connection with the property”: Criminal Proceeds (Recovery) Act 2009, s 5(1). See [21(b)] below.
10 I proceed on the basis that the concepts in this definition apply equally to “a dealing”, or having “dealt with” property for the purposes of s 32. If a person is “dealing with” property, he or she will have “dealt with” property and thereby engaged in “a dealing” of that property. It would be odd indeed if the three concepts within the same Act were intended to have different meanings.
(iv) registering an interest in property. (Emphasis added.)
[16] As can be seen, the definition is cast in very wide terms, particularly by the adoption in subs (a) of the words “to use or deal with property in any way and by any means” (emphasis added). Consistent with this, the examples referred to in subs (b) include both physical interactions with property (subss (b)(ii) and (iii)) and non-physical interactions (subss (b)(i) and (iv)).
[17] The definition is somewhat circular, in that “dealing with” property means “to use or deal with property in any way and by any means” (emphasis added). To “use” property is self-explanatory. So, to “use” the Harley Davidson (for example, to ride it) other than in accordance with the terms of the restraining orders would be in breach of those orders. To do so would be inconsistent with the Harley Davidson being under the Official Assignee’s custody and control.
[18] What then of to “deal with” property? Consistent with the purposes of the Act (including to “eliminate the chance for persons to profit from undertaking or being associated with significant criminal activity”)11 and the broad way in which Parliament has framed the definition of “dealing with”, there is no reason to adopt a restricted approach to its meaning.
[19]Dictionary definitions of “deal” or “to deal with” include the following:
(a)In the Oxford English Dictionary:12
deal, v.
I. To divide, distribute, share. ...
…
II. To take part in, have to do with, occupy oneself, do business, act.
… 13.
a. To carry on commercial transactions; to do business, trade, traffic (with a person, in an article).
…
11 Criminal Proceeds (Recovery) Act, s 3(2)(a); described by the Court of Appeal as a “strongly expressed” purpose: Hayward v Commissioner of Police [2014] NZCA 625 at [29(c)].
12 Oxford English Dictionary, above n 2, definition of “deal”.
14. To have to do with (a thing) in any way; to busy or occupy oneself, to concern oneself with.
…
16(a) to deal with: to act in regard to, administer, handle, dispose in any way of (a thing). …
(b)In the Collins English Dictionary:13
deal, v.
1 (foll. by in) to engage (in) commercially: to deal in upholstery…
5 informal a bargain, transaction, or agreement …
deal with, v.
1 to take action on: to deal with each problem in turn
…3 to be concerned with: the book deals with Dutch art
…5 to do business with: the firm deals with many overseas suppliers
(c)In the New Zealand Oxford Dictionary:14
deal, v.
1a (foll. by with) take measures concerning (a problem, person, etc), esp. in order to put something right.
b do business with; associate with. c discuss or treat (a subject).
…
2a (foll. by in) sell or be concerned with commercially (deals in insurance).
…
3 (often foll. by out, round) distribute or apportion to several people etc. …
2a colloq a business arrangement; a transaction. …
[20] Again, such definitions are not particularly helpful, and the focus remains on the ordinary meaning of the terms, in their context and in light of the purposes of the Act. As with “disposition” and “was disposed of”, I do not consider it helpful to attempt an exhaustive list or statement of what will or will not amount to “a dealing” for the purposes of s 32. What is clear, however, is that dealing with property (which includes to “use” property in any way and by any means) is a broader concept than disposing of property. In addition, it does not involve forgoing or divesting oneself of physical or legal possession or control of property. Similarly, “dealing with” property
13 Collins English Dictionary, above n 3, at 514.
14 New Zealand Oxford Dictionary, above n 4, at 277–278.
does not depend on the creation, transfer or other form of conveyance of a legal or equitable interest in the property. To “use” property has nothing to do with creating or conveying such an interest in the property, nor does removing property from New Zealand.
[21] It might be argued that because s 32(2)(b) of the Act anticipates the Court will “declare the respective rights of any persons who acquired interests in the property”,15 this suggests that a disposition or dealing must involve a transfer or acquisition of a legal or equitable interest in the property concerned. However:
(a)the provision refers to “any” persons acquiring an interest in the property concerned. In the context of the examples just given (using property or removing it from New Zealand), there will be no such persons; and
(b)the Act includes an extended definition of “interest” in any event, extending beyond a legal or equitable estate in property to “a right, power, or privilege in connection with the property”.16
[22] Like the concept of disposition, however, the type of dealing captured by s 32 must be one that is amenable to being “set aside” by the Court. So, for example, a person using restrained property is not an activity capable of being set aside by the Court. Nor is the mere act of removing property from New Zealand. A dealing with restrained property capable of being set aside is again likely to involve some kind of transaction or similar action.
[23] A final point is worth noting in relation to s 32. As Mr Harborow observed, the provision on its face does not set out what a Judge must be satisfied of before the jurisdiction to make an order pursuant to s 32(2) is enlivened. However, I agree with Mr Harborow’s submission that on a plain reading of the provision, the required threshold is the Judge being satisfied that there has been a disposition of or dealing with property in contravention of a restraining order. That is an evaluative task.
15 Emphasis added. See [9] above.
16 Section 5(1). See n 9 above.
Mr Harborow accepted, rightly in my view, that if that threshold is met, there remains a residual discretion as to whether an order ought to be made (pursuant to s 32(2), the Court “may” make an order).
[24] Mr Harborow submitted, however, that there would need to be compelling reasons why such an order ought not to be made, given it will have been a prerequisite to a Judge considering the exercise of the residual discretion to have found that there has been a disposition or dealing in contravention of a restraining order. While I accept that is likely to be so in practice, I equally do not consider it helpful to add a further threshold or “gloss” to the making of an order under s 32(2). Ultimately, each case will need to be considered on its own facts. But matters such as whether the persons involved in the disposal of or dealing with restrained property were aware of the restraining orders at the time of that disposal or dealing, whether they or any of them acted in good faith, and whether they or any of them have altered their position in good faith reliance on the disposition or dealing will no doubt be relevant factors to be taken into account.
[25] In this context, I accept that the fact the purchaser or other acquiring party of restrained property did not know of the restraining orders at the time of the purchase or acquisition will not itself be a barrier to an order being made pursuant to s 32(2). I accordingly agree with the authors of Adams on Criminal Law that “[i]t is open to the Court to set aside a disposition to a bona fide purchaser.”17 As the authors explain, this can be inferred from the fact that the additional criterion contained in s 59 of the Proceeds of Crime Act 1991 that the disposition of or dealing with restrained property “was either not for sufficient consideration or not in favour of a person who acted in good faith” was not carried through into s 32 of the Act.
[26] I need not say anything further on this topic, however, given Mr Pirini Snr does not rely on any such matters in this case.
17 Simon France (ed) Adams on Criminal Law – Criminal Proceeds (online ed, Thomson Reuters) at [CP32.01].
The scheme of registration under the Land Transport Act
[27] Given the key issue on the present application is whether a change in registered owner of the Harley Davidson meant that restrained property had been “dealt with” for the purposes of s 32(1), it is necessary to understand what registration of a motor vehicle does and does not involve.
[28] Pursuant to s 234 of the Land Transport Act 1998 (the LTA), the Registrar of Motor Vehicles (the Registrar) must maintain a register of all motor vehicles for which registration plates are issued. The purposes of the register include the “enforcement of the law” and “maintenance of the security of New Zealand”.18
[29] Pursuant to s 242, a “motor vehicle” must not be operated on a road unless the motor vehicle is registered and licensed in accordance with Part 17 of the LTA.19 Section 242(2) imposes certain obligations on the person registered in respect of a motor vehicle at any given time, including to keep the motor vehicle licensed at all times and to ensure that the prescribed fees and accident insurance levies are paid for the time that the motor vehicle is required to be licensed.
[30] Section 243 of the LTA is of some relevance to the parties’ submissions, and relevantly provides as follows:
243 Application for registration
(1)An application for registration of a motor vehicle must be—
(a) made by or on behalf of the owner to the Registrar in accordance with any regulations made under this Part; and
(b) accompanied by—
(i)the prescribed fee; and
(ii)an application for a licence for the motor vehicle.
(1A) An application for registration of a motor vehicle must also be accompanied by the amount of the motor vehicle (synthetic greenhouse gas) levy for the motor vehicle if required under section 227(1)(a) of the Climate Change Response Act 2002.
18 Land Transport Act 1998, s 235. The other purposes are the collection of charges imposed or authorised by an enactment, and the administration and development of transport law and policy.
19 Section 242(1)(a).
(1B) An application for registration of a motor vehicle must also be accompanied by the amount of any fees or charges prescribed under section 167(1)(j) for the purpose under section 167A.
(2)The only persons who may be registered in respect of motor vehicles are—
(a) a natural person of or over 15 years of age; or
(b) a body corporate; or
(c) an agent of the Executive Government of New Zealand.
(3)If more than 1 person owns a motor vehicle, only 1 of them may be registered in respect of that vehicle at any given time.
(4)Unless the registration is cancelled under this Part, the registration of a motor vehicle continues in force without renewal.
(5)In relation to a vehicle treated by virtue of section 242(4) as if it were registered under this Part,—
(a) the person registered as the owner of the vehicle immediately before the commencement of this section is to be treated as being registered in respect of the vehicle under this Part; and
…
(Emphasis added.)
[31] As can be seen from s 243(1), (3) and (5), there is linkage between registration of a motor vehicle and ownership. I return to this linkage later.20
[32] Section 247 of the LTA sets out the obligations of “sellers and acquirers of motor vehicles”. In summary, after the sale of a registered motor vehicle, the registered person in relation to the vehicle and the person acquiring the vehicle must notify the Registrar of certain particulars required by regulations made under Part 17 of the LTA. Similar obligations are imposed on a person who “acquires” a motor vehicle other than by way of a sale.21
[33] In the event the person driving a motor vehicle has committed a relevant offence and “the motor vehicle is not registered under this Part in the name of the current owner of the motor vehicle or with the current address of that person”,
20 At [38] to [41] below.
21 Section 247(2).
s 248 empowers an enforcement officer or parking warden to give the driver or owner a notice directing that the vehicle be removed from the road immediately, and not be driven on a road for as long as the notice is in force.
[34] Sections 249 to 254 govern the seizure and impounding of a motor vehicle driven on a road while a notice issued under s 248 is in force. A number of those provisions also distinguish between the “driver” of the vehicle and the “owner” of the vehicle.
[35] Section 255 of the LTA provides that the Registrar may cancel the registration of a registered motor vehicle in accordance with any regulations made under Part 17 of the LTA.22 Cancellation is relevant in this case given Mr Pirini’s evidence that at some point before the restraining orders were made, he had broken the Harley Davidson down into various parts. Cancellation of registration is governed by regs 6 to 9 of the Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011 (the Regulations). Relevantly for present purposes, reg 6 provides as follows:
6Cancellation of registration on destruction or permanent removal of motor vehicle
(1)A registered person must, in a form acceptable to the Registrar, notify the Registrar if the motor vehicle in respect of which the person is registered—
(a) is destroyed; or
(b) is written off; or
(c) becomes permanently useless as a motor vehicle; or
(d) is removed permanently beyond New Zealand.
…
(3)If subclause (1) or (2) applies, the registered person or registrar (as the case may be) must, when notifying the Registrar, deliver one of the following to the Registrar:
(a) the registration plates and the current licence for the motor vehicle; or
22 Recalling that pursuant to s 243(4), “[u]nless the registration is cancelled under this Part, the registration of a motor vehicle continues in force without renewal.”
(b) an explanation and, if required by the Registrar, a statutory declaration stating why the registration plates or licence are not available.
(4)On receipt of the notification and either the registration plates and current licence or the explanation or statutory declaration (as the case may be), the Registrar must, if satisfied that the notification is in order, cancel the motor vehicle’s registration under section 255 of the Act.
…
(Emphasis added.)
[36] I discuss the implications of the Harley Davidson being broken down into parts, and cancellation of registration, later in this judgment.23
[37] Turning back to the LTA, s 257 imposes on the Registrar certain obligations if he or she is satisfied that an application for registration of a motor vehicle is in order. In those circumstances, the Registrar is obliged to assign ordinary plates in relation to the motor vehicle, issue those plates to the applicant, and issue a certificate of registration. Pursuant to s 258, a registered person has the right to receive supplementary plates in accordance with any regulations made under Part 17. Pursuant to s 264, the Registrar is subject to similar obligations to issue replacement plates or a replacement certificate of registration where either have been lost, stolen, damaged or destroyed.
[38] Before leaving the LTA, it is appropriate to say something about the consequence of registration and what that registration says, if anything, about ownership of the registered vehicle.
[39] As will be apparent from the above summary of relevant provisions of the LTA, a number of the provisions refer to the “owner” of a motor vehicle. “Owner” is defined in the LTA as “the person lawfully entitled to possession of the vehicle”.24
[40] The interaction between registration of a motor vehicle and ownership at law was considered by Panckhurst J in Otago Finance Ltd v District Court.25 The issue in
23 At [57] below.
24 Section 2(1).
25 Otago Finance Ltd v District Court [2003] 1 NZLR 336 (HC).
that case was whether a Harley Davidson motorcycle registered in the name of a Mr Pennington (who had a number of outstanding fines due to the then Department of Courts) could be sold in satisfaction of those debts, in circumstances where a financier was registered as having a security interest in the vehicle. Panckhurst J surveyed a number of authorities and, relevant to the present discussion, made the following observations on the interaction between registration as the owner of a motor vehicle and beneficial ownership at law:
[46] A further relevant concept is that of beneficial ownership. I expect that in this field such may often arise in situations where a defaulter, in the absence of a true sale, effects a change of registration into the name of another (a partner or family member) in the belief that thereby his or her vehicle will be immune from seizure and sale.
[47] But of course registration of a motor vehicle, as now required by Part I of the Transport (Vehicle and Driver Registration and Licensing) Act 1986, is not determinative of ownership. As North J said in Davey v Paine Brothers (Motors) Ltd [1954] NZLR 1122 at p 1129:
“It is clear from such cases as Bishopsgate Motor Finance Corporation Ltd v Transport Brakes, Ltd … that registration papers are not documents of title, and, in my opinion, the [then comparable] Act is primarily concerned with the collection of registration and third party insurance premiums.”
[48] Hence as has been pointed out in other cases registration is no more than a unilateral act by which someone declares they are the owner of a vehicle, in performance of a statutory duty. The fact of registration has also been described as evidence of an act consistent with ownership, but not prima facie evidence of ownership itself. These matters may not commonly be appreciated by those who set out to immunise vehicles from sale under the Act by their re-registration in the name of another.
(Emphasis added.)
[41] Neither party suggested any different approach applies under the LTA. Accordingly, while registration of a motor vehicle in a person’s name under Part 17 of the LTA is consistent with that person owning the vehicle in question, registration does not itself establish such ownership.
[42]I turn now to the parties’ submissions on the application.
The parties’ submissions
The Commissioner’s submissions
[43] As noted earlier, Mr Harborow submits on behalf of the Commissioner that the transfer of registration in the Harley Davidson from Mr Pirini to Mr Pirini Snr was a “dealing” for the purposes of s 32.
[44] Mr Harborow refers to the definition of “dealing with”, set out at [15] above, noting that it is framed in very broad terms. Mr Harborow acknowledges that registration of a motor vehicle is not determinative of ownership and does not itself convey a legal or beneficial interest in the vehicle concerned. However, he submits that in the ordinary usage of “dealing with” property, the transfer of the formal registration of the Harley Davidson from Mr Pirini to Mr Pirini Snr, involving a transfer of the rights and obligations which attach to and flow from such registration, gives rise to a dealing for the purposes of s 32 of the Act. He submits this is consistent with the “strongly expressed” statutory purpose of the Act, namely to eliminate the chance for persons to profit from undertaking or being associated with significant criminal activity.26
[45] Consistent with this approach, Mr Harborow notes Mr Pirini Snr’s evidence that had he been aware of the without notice restraining orders, he would not have effected the transfer in registration. Mr Harborow submits that this reflects the ordinary meaning and understanding of the concept of “dealing with” property, and that transferring the registration of a restrained motor vehicle is inconsistent with its restrained state.
[46] Mr Harborow further submits that Mr Pirini’s suggestion that he broke the Harley Davidson down into parts prior to the restraining orders being made, and sold some of those parts, does not alter the situation. Mr Harborow notes that even if a registered motor vehicle is in a number of parts at any given point in time, it does not cease to be a registered motor vehicle. Rather, registration only ends if cancelled by the Registrar, being satisfied the motor vehicle has been destroyed, written off or has
26 Referring to Hayward v Commissioner of Police, above n 11, at [29(c)]; see n 11 above.
become “permanently useless as a motor vehicle” (emphasis added).27 Mr Harborow notes that the Harley Davidson’s registration has not been cancelled on this basis and thus it continued to be a registered motor vehicle at all relevant times. Mr Harborow accordingly submits that the transfer of the registration of a registered motor vehicle has the same consequences under s 32 irrespective of whether the vehicle was fully assembled or “in bits on the workshop floor” at the point of transfer.
[47] On this basis, the Commissioner seeks an order in the following terms under s 32 of the Act:
The transfer of ownership of the 2013 Harley Davidson, registration C2DWW, from Pomare Pirini to Simon Pirini on 8 June 2021 is set aside from 8 June 2021.
Mr Pirini’s submissions
[48] Mr Mansfield KC, counsel for Mr Pirini, highlights that there has never been any change in the beneficial ownership of the Harley Davidson from Mr Pirini to Mr Pirini Snr. In particular, Mr Pirini accepts that beneficial ownership of the remaining parts of the Harley Davidson remains with him. Mr Mansfield accordingly submits that there has been no disposition of or dealing with the Harley Davidson, such that there is no basis or need to make an order pursuant to s 32 of the Act.
[49] In terms of the consequences of registration under the LTA, Mr Mansfield submits that registration does not give rise to any interest in the motor vehicle in question, and indeed carries with it very limited rights (largely limited to the right to drive a registered vehicle on a road) and a number of statutory obligations (payment of the relevant fees and the like). Mr Mansfield accordingly submits that a change in registration is simply making someone else responsible for the land transport requirements under the LTA in relation to a motor vehicle, which does not give rise to a “dealing” in restrained property for the purposes of s 32.
[50] Mr Mansfield further submits that as the Harley Davidson was broken down into constituent pieces, it was not a “motor vehicle” for the purposes of the LTA and
27 Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011, reg 6(1). See [35] above.
thus did not need to be registered in any event.28 On this basis, he submits that the transfer of registration in relation to something that did not meet the definition of a “motor vehicle” and thus was not required to be registered under the LTA was superfluous and does not give rise to a dealing for the purposes of s 32.
[51] Mr Mansfield accordingly submits that “correcting the registration is meaningless”, given there is no dispute as to the ownership of the remaining available parts of the Harley Davidson, those parts have already been restrained by the Commissioner, and their restraint (and forfeiture) is not dependant on registration.
Discussion
[52] I am satisfied that the change in registration from Mr Pirini to Mr Pirini Snr was “a dealing” with the Harley Davidson for the purposes of s 32 of the Act. I have reached this conclusion for the following reasons.
[53] First, and as discussed earlier in this judgment, the concept of “dealing with” property does not depend on the transfer or creation of a legal or equitable interest in the property. Accordingly, the fact that registration of a motor vehicle under Part 17 of the LTA does not itself give rise to a legal or beneficial interest in the vehicle does not exclude that transaction amounting to “a dealing” for the purposes of s 32.
[54] Second, the transfer of the registration of a motor vehicle from one person to another involves the transfer of a collection of statutory rights and obligations in relation to that motor vehicle. Those rights include the right to drive the vehicle on the road, the right to receive plates for the vehicle and the right to receive a certificate of registration in relation to the vehicle.29 The obligations include to keep the vehicle licensed and to pay the requisite fees and levies. In my view, the transfer of that collection of rights and obligations attaching to a motor vehicle amounts to a “dealing” with the motor vehicle in the broad sense that term is defined in the Act.
28 “Motor vehicle” being defined in s 2(1) of the Land Transport Act as “a vehicle drawn or propelled by mechanical power”, and “vehicle” being defined as “a contrivance equipped with wheels, tracks, or revolving runners on which it moves or is moved”.
29 And replacement plates and certificate of registration should the need arise.
[55] Third, as well as effecting a transfer of statutory rights and obligations, a transfer of registration is a declaration that the newly registered person is the owner of the motor vehicle in question, even if as a matter of law, that person is not the true beneficial owner. In my view, it would be inconsistent with the fact that restrained property is to be under the custody and control of the Official Assignee if registration of such property, and thus the accompanying declaration as to its ownership, could nevertheless be changed at will, despite the presence of restraining orders.
[56] Fourth, and allied to the preceding point, one of the purposes of the motor vehicle register is to facilitate the enforcement of the law. There is no doubt that details of the registered owner of a motor vehicle are an important starting point in identifying the actual owner of that vehicle and its whereabouts. An application for registration of a motor vehicle must state the full name and address of the person to be registered.30 Similar details are to be provided in relation to a person subsequently purchasing or otherwise acquiring a registered motor vehicle.31 It would be inconsistent with the purposes of the Act if the act of re-registration, which will change important details required by statute as to the prima facie ownership and location of a vehicle, was not a “dealing” for the purposes of s 32.
[57] Finally, I do not consider the position changes simply because the Harley Davidson may have been broken down into parts and some parts sold prior to the transfer of registration being effected by Mr Pirini Snr. I say “may” as there is insufficient evidence before me to make any concluded findings about the timing of the Harley Davidson being broken down into parts (and some of those parts being sold, if that were the case). Mr Pirini gave no real details as to these matters when examined earlier in these proceedings. He has not filed any evidence on the current application. I observe that in the joint memorandum of counsel for the Commissioner and Mr Pirini dated 15 September 2021, the Harley Davidson was recorded as being registered to Mr Pirini (which was clearly in error), but there was no mention of it having been broken down into parts. Nevertheless, the restrained property is the Harley Davidson, which must include its constituent parts. At all times, the Harley Davidson has remained a registered motor vehicle. The fact that a motor vehicle might temporarily
30 Land Transport (Motor Vehicle Registration and Licensing) Regulations, reg 4.
31 Regulations 46 and 48.
be useless as a motor vehicle does not affect registration. No application for cancellation of the Harley Davidson’s registration has been made on the basis that it has become permanently useless as a motor vehicle. Accordingly, the precise physical state of the Harley Davidson at the point its registration was transferred from Mr Pirini to Mr Pirini Snr does not alter the fact that that transfer amounted to a dealing for the purposes of s 32.
[58] Despite being satisfied that the transfer of registration was a dealing in contravention of the restraining orders, I have given consideration to whether it is appropriate and/or necessary to make an order setting aside that dealing. Neither Mr Pirini nor Mr Pirini Snr suggests the latter is the owner of the Harley Davidson or its constituent parts. As noted, Mr Pirini accepts that he remains the beneficial owner. The remaining parts have been surrendered to the Commissioner. Restraint and forfeiture do not turn on registration. It might therefore be argued that there is no purpose to be served by setting aside the transfer of registration.
[59] Despite this, however, it has not been suggested on behalf of Mr Pirini (or Mr Pirini Snr) that there is any particular reason why a setting aside order ought not to be made (other than that the transfer did not amount to a “dealing” for the purposes of s 32). Mr Pirini Snr initially told police that he effected the transfer as he thought his son did not have an appropriate motorcycle licence. Evidence produced on the current application demonstrates that Mr Pirini does hold the appropriate licence. Mr Pirini Snr also says that he effected the transfer in case he needed to deal with the Harley Davidson while his son was in custody. Given the Harley Davidson is restrained property, there is no basis upon which Mr Pirini Snr will need or be able to deal with it. Nor does it seem he wants to in any event, given his evidence that had he known of the restraining orders, he would not have effected the transfer.
[60] There is therefore no prejudice to either Mr Pirini or Mr Pirini Snr if a setting aside order is made.
[61] In these circumstances, and being satisfied there has been a dealing with the Harley Davidson in contravention of the restraining orders, an order setting aside that dealing is appropriate.
[62] I note the form of the order sought by the Commissioner, set out at [47] above. As registration of a motor vehicle does not give rise to legal or beneficial ownership of that vehicle, I do not consider it appropriate to frame the order by reference to a transfer of “ownership” from Mr Pirini to Mr Pirini Snr. The order should be framed by reference to the transfer of registration of the Harley Davidson.
Result
[63]The Commissioner’s application is granted.
[64] I make an order that the transfer of registration of the 2013 Harley Davidson, registration C2DWW, from Pomare Pirini to Simon Pirini on 8 June 2021 pursuant to Part 17 of the Land Transport Act 1998 is set aside as from 8 June 2021.
[65] I do not apprehend there to be any need to make any declaration for the purposes of s 32(2)(b) of the Act, though leave is reserved to the parties to file memoranda should they consider such a declaration ought to be made.
[66] The Commissioner seeks costs on a 2B scale basis. As he has succeeded on his application, a costs award on that basis appears appropriate. If, despite this indication, the parties cannot agree costs, the Commissioner may file a costs memorandum within 10 working days of this judgment, and Mr Pirini may file a memorandum in response within a further five working days. Unless I need to hear further from counsel, I will then determine costs on the papers.
Fitzgerald J
2
0