Commissioner of Police v Rivers
[2025] NZHC 2107
•30 July 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-1577
[2025] NZHC 2107
UNDER the Criminal Proceeds (Recovery) Act 2009 BETWEEN
COMMISSIONER OF POLICE
Applicant
AND
LUKE DANIEL RIVERS
Respondent
Hearing: On the papers Counsel:
M R Harborow and S Meyerhoff for Applicant B J Meyer for Respondent
Judgment:
30 July 2025
JUDGMENT OF O’GORMAN J
This judgment was delivered by me on 30 July 2025 at 3 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
…………………………………
Solicitors/Counsel:
Meredith Connell, Auckland High Street Law Ltd, Auckland
COMMISSIONER OF POLICE v RIVERS [2025] NZHC 2107 [30 July 2025]
Introduction
[1] This is an application for approval under s 95 of the Criminal Proceeds (Recovery) Act 2009 (the Act) of a settlement between:
(a)the Commissioner of Police (Commissioner); and
(b)Luke Daniel Rivers (Mr Rivers).
[2] The settlement involves two properties that are presently restrained by Court orders made on 12 October 2022:
(a)all interests in the property at 13 Robbies Road, Shelly Park, Auckland, record of title unique identifier NA14A/261 (13 Robbies Road), registered owner Luke Daniel Rivers, excluding the interest of ANZ Bank New Zealand Ltd (ANZ) as mortgagee as of 12 October 2022; and
(b)all interests in the property at 20 Achilles Crescent, Narrow Neck, Auckland, record of title unique identifier NA464/274 (20 Achilles Crescent), registered owner Rivers Trustee Services Ltd (RTS), excluding the interest of ANZ as mortgagee as of 12 October 2022.
[3] RTS was a company for which Mr Rivers was the sole director and shareholder. For the purposes of these proceedings, Mr Rivers accepts that he has, at all relevant times, had sole control over RTS and 20 Achilles Crescent.
Significant criminal activity
[4] These proceedings arose out of an investigation into potential fraud under the COVID-19 Wage Subsidy Scheme (WSS) — a programme established to provide assistance for employers and employees affected by the COVID-19 pandemic.
[5] As explained in the affidavits filed in support of the application, between 1 April 2020 and 1 September 2020, Mr Rivers made 18 applications under the WSS on behalf of seven companies he controlled or was associated with. Of these, 15 were
successful, with a total of $977,114 being deposited into various bank accounts either held in his name or under his control.
[6]The WSS applications were alleged to be fraudulent for the following reasons:
(a)Mr Rivers falsely listed himself as a full-time employee at five different companies simultaneously.
(b)Several of the applications listed overseas employees or employees for whom no PAYE returns had been filed.
(c)Several employees were falsely listed as full-time employees at three different companies simultaneously.
(d)Several of the employees listed in the applications advised officials that they were not employed by the companies whose WSS applications they were listed on.
(e)Several of the applications were made either in the name of false identities or in the name of another person or company without their knowledge or consent.
(f)The payments from the successful WSS applications were not used to pay employees’ wages.
[7] In April 2025, Mr Rivers pleaded guilty to various charges including the following:
(a)use of a forged document (x2 representative);1 and
(b)dishonest use of a document (x17 including six representative).2
1 Crimes Act 1961, s 257(1)(c) with a maximum penalty of 10 years’ imprisonment.
2 Section 228(1)(b) with a maximum penalty of seven years’ imprisonment.
Legal principles
[8] Under s 95, the High Court must approve the settlement if it is satisfied that it is consistent with the purposes of the Act and the overall interests of justice. The primary purpose of the Act is contained in s 3(1), to establish a regime for forfeiture of property that has been derived directly or indirectly from significant criminal activity, or that represents the value of a person’s unlawfully derived income. Among other things, the Act seeks to “eliminate the chance for persons to profit from undertaking or being associated with significant criminal activity”.3 In terms of the “overall interests of justice”, there is a strong public interest in litigation of this nature being brought to a prompt conclusion, provided that the settlement reflects the likely costs and risks inherent in the determination of a contested application.4
[9] There are three types of forfeiture orders available in respect of significant criminal activity, two of which arise directly under the Act:5
(a)assets forfeiture orders (type 1 or type 2);6
(b)profit forfeiture orders;7 and
(c)instrument forfeiture orders.8
[10] Unlike an instrument forfeiture order imposed as part of criminal sentencing, assets and profit forfeiture orders are civil in nature (a conviction is not a pre-condition).9
3 Criminal Proceeds (Recovery) Act 2009, s 3(2)(a).
4 Commissioner of Police v Cotton [2017] NZHC 21 at [7]; and Commissioner of Police v Pitman
[2024] NZHC 594 at [4].
5 Heather Mckenzie Proceeds of Crime Law in New Zealand (1st ed, LexisNexis, Wellington, 2015) at [2.2]; and Kiwi v Commissioner of Police [2023] NZCA 106, [2023] 2 NZLR 776 at [80].
6 Criminal Proceeds (Recovery) Act, s 50 (type 1) or s 50C (type 2), with the allied restraining orders under ss 24 and 24A.
7 Section 55, with the allied restraining order under s 25.
8 Sentencing Act 2002, s 142N in respect of criminal proceedings under ss 142A–142Q. However, see s 26 of the Criminal Proceeds (Recovery) Act for an allied restraining order, and ss 70–79 and other miscellaneous sections of that Act also apply to instrument forfeiture orders.
9 Proceeds of Crime Law in New Zealand, above n 5, at [1.1].
[11] The scope to make a profit forfeiture order under s 55 arises if the High Court is satisfied, on the balance of probabilities, that the respondent has unlawfully benefited from significant criminal activity within the relevant period and the respondent has interests in property.
[12] For a profit forfeiture order, s 55(2) provides that the order must specify the value of the benefit determined under s 53, the maximum recoverable amount determined in accordance with s 54, and the property that must be disposed of in accordance with s 83(1). Under s 83(1), the forfeited property must be sold and the money applied under the specified payment cascade, with the Crown paid up to the maximum recoverable amount after the priority payments, and any balance paid to the former interest holder.
[13] In Commissioner of Police v Phan,10 the Court approved a settlement that provided for the restrained property to be sold if the proposed settlement sum was not paid by the due date.11 A similar approach was approved in Commissioner of Police v Do.12
Analysis
[14] The Commissioner considers he has a good case to show that Mr Rivers has unlawfully benefited from significant criminal activity supporting a profit forfeiture order for a maximum recoverable amount of $1,000,000, but acknowledges some uncertainties and risks:
(a)The Commissioner relies on evidence that shows $977,114 was paid under the WSS into accounts which were either held in Mr Rivers’ name or which were under his control.
(b)These payments were based on applications made by Mr Rivers on behalf of various companies which contained false information, making the applications fraudulent.
10 Commissioner of Police v Phan [2024] NZHC 2952.
11 At [23].
12 Commissioner of Police v Do [2024] NZHC 3293.
(c)Following a criminal prosecution for his actions in respect of the WSS applications, Mr Rivers pleaded guilty to two representative charges of using a forged document and 17 charges of dishonestly using a document.
(d)Mr Rivers disputes the strength of the Commissioner’s case in terms of the unlawful benefit calculation and considers the Commissioner has overestimated his unlawful benefit by approximately $70,000 by including WSS benefits to which he was lawfully entitled (the Commissioner disagrees).
(e)There are also disputed issues about whether Mr Rivers could be liable for use of money interest, given that this would be somewhat novel under the Act and Mr Rivers contends that he received virtually no interest on the WSS payments as a matter of fact.
[15] From Mr Rivers’ perspective, he accepts liability for $906,000 and agrees to make an additional good faith payment of $94,000 to demonstrate remorse and to resolve these matters without the need for a hearing.
[16] Mr Rivers is scheduled to be sentenced on 7 August 2025. A settlement of the proceedings under the Act will allow Mr Rivers to present tangible evidence at sentencing of his efforts to provide reparation for his offending. A settlement prior to sentencing will also mean that, upon being sentenced, he may put this matter behind him and work to start afresh upon completing his sentence.
[17] Based on the above, I am satisfied that the proposed settlement meets the requirements set out in [8]. This agreed resolution saves the cost, delay and uncertainty involved in determining a disputed application for civil forfeiture orders. The maximum sum to be forfeited logically correlates to evidence of profit from significant criminal activity. I accept that this settlement is a rational choice for Mr Rivers, given the costs and risks inherent in determination of a contested application. From the Commissioner’s perspective, this settlement serves the purpose
of demonstrating the steps that will be taken to ensure that people do not profit from significant criminal activity.
[18] I am satisfied that the settlement is consistent with the purposes of the Act and the overall interests of justice.
Orders
[19]For the above reasons, I approve the settlement pursuant to s 95(3) of the Act.
[20]By consent, I make the following orders to give effect to the settlement:
Profit forfeiture order against Luke Daniel Rivers under s 55 of the Act:
(a)The value of the benefit determined in accordance with s 53 of the Act is $1,000,000.
(b)The maximum recoverable amount determined in accordance with s 54 of the Act is $1,000,000.
(c)The property to be disposed of in accordance with s 83(1) of the Act, being property in which Mr Rivers has, or is treated as having, an interest in is:
(i)a sum totalling $1,000,000 currently in his possession, to be paid to the Official Assignee within five working days from a verified source to the satisfaction of the Commissioner (in his absolute discretion) (Settlement Sum); or
(ii)the following property (collectively, the Property):
(A)all interests in the property at 13 Robbies Road, Shelly Park, Auckland, record of title unique identifier NA14A/261, registered owner Luke Daniel Rivers,
excluding the interest of ANZ Bank New Zealand Ltd (ANZ) as mortgagee as of the date of these orders; and
(B)all interests in the property at 20 Achilles Crescent, Narrow Neck, Auckland, record of title unique identifier NA464/274 (20 Achilles Crescent), registered owner Rivers Trustee Services Ltd, excluding the interest of ANZ as mortgagee as of 12 October 2022;
Further orders necessary and convenient to give effect to the profit forfeiture order under s 59 of the Act:
(d)Mr Rivers is directed to pay the Settlement Sum to the Official Assignee within five working days of the date of these orders.
(e)In the event that the Settlement Sum is not paid within five working days of the date of these orders, then the Official Assignee shall, as soon as is reasonably practicable, sell the Property at its fair market value and deal with the proceeds of the sale in the following way:
(i)first, deduct the Official Assignee’s actual costs in effecting the sale;
(ii)second, repay all borrowing secured against the Property;
(iii)third, apply an amount equal to the Settlement Sum in satisfaction of the profit forfeiture order above at (c)(ii); and
(iv)finally, return the balance to a bank account nominated by Mr Rivers.
(f)Costs lie where they fall in relation to all matters between the Commissioner and Mr Rivers.
[21] As requested by the parties, I also note that the agreement is in full and final settlement of the question of the civil forfeiture of the Property as between the Commissioner and Mr Rivers on the basis of the significant criminal activity evidenced in the affidavits filed in this proceeding to date.
O’Gorman J
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