Commissioner of Police v Slaimankhel

[2014] NZHC 2836

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-7021 [2014] NZHC 2836

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

THE COMMISSIONER OF POLICE

Applicant

AND

KHALID NASER SLAIMANKHEL

Respondent

Hearing:	On the papers
Counsel:	M Harborow for Applicant M Ryan for Respondent
Judgment:	14 November 2014

JUDGMENT OF KATZ J (Costs)

This judgment was delivered by me on 14 November 2014 at 2:00 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:               Meredith Connell, Auckland

Counsel:                 M Ryan, Vulcan Chambers, Auckland

THE COMMISSIONER OF POLICE v SLAIMANKHEL [2014] NZHC 2836 [14 November 2014]

Introduction

[1]     Khalid Slaimankhel operated a business selling health supplements and bodybuilding products.   The Commissioner of Police (“Commissioner”) brought proceedings against Mr Slaimankhel under the Criminal Proceeds (Recovery) Act

2009 (“Act”) in which he alleged that some of the products Mr Slaimankhel sold were controlled drugs.   Selling controlled drugs without a prescription from a registered medical practitioner is a criminal offence.  The Commissioner accordingly sought a profit forfeiture order against Mr Slaimankhel pursuant to s 55 of the Act.

[2]      Mr Slaimankhel opposed the Commissioner’s profit forfeiture application, to the extent that it related to an Audi vehicle seized by the police from his property. Mr Slaimankhel argued he did not have an interest in the Audi vehicle which, he said, belonged to his brother, Omar Slaimankhel.   Omar Slaimankhel filed an application seeking relief from civil forfeiture in relation to the Audi vehicle.

[3]      The Commissioner succeeded in his profit forfeiture application.  I found, on the balance of probabilities, that Mr Slaimankhel had unlawfully benefited from significant  criminal  activity  and  that  he  owned  or  had  an  interest  in  the Audi vehicle.1   I also dismissed Omar Slaimankhel’s application for relief from forfeiture. In relation to costs, I stated that:2

The Commissioner is entitled to costs, together with disbursements as fixed by the Registrar. It is my preliminary view that costs should be fixed on a category 2B basis. I encourage counsel to endeavour to reach agreement on costs. If costs cannot be agreed, then any memorandum from the Commissioner is to be filed and served within 15 working days of this judgment. Any memorandum on behalf of either Mr Slaimankhel or Omar Slaimankhel is to be filed within a further 10 working days. Costs will then be dealt with on the papers.

[4]      Counsel for the Commissioner filed a memorandum on 15 September 2014, advising that he had endeavoured to reach agreement on costs and had sent a draft costs order on 1 September 2014 to Mr Slaimankhel and Omar Slaimankhel.  Failing any response, costs were sought in the sum of $14,726.  A detailed breakdown of

how that sum was calculated was included in the Commissioner’s memorandum.

1      Commissioner of Police v Slaimankhel [2014] NZHC 2011.

2 At [47].

[5]      Mr Slaimankhel and his brother, Omar Slaimankhel, were represented by the same counsel, Mr Ryan, in opposition to the profit forfeiture application.  Mr Ryan did not file a costs memorandum in response to the Commissioner’s memorandum. Rather, he advised that he had not received any instructions and was therefore not in a position to address issues of costs.

[6]      The Commissioner now seeks costs on a category 2B basis in the total sum of

$14,726.  I have carefully reviewed the itemised breakdown of costs sought and am satisfied  that  the  quantum  sought  is  appropriate  and  has  been  calculated  in accordance with the High Court Rules.

[7]      I accordingly award costs in favour of the Commissioner, in the sum of

$14,726.  Khalid Slaimankhel and Omar Slaimankhel both played an active role in the proceedings, and were jointly represented by the same counsel.  They are jointed

and severally liable for payment of the costs award.

Katz