Morell v The Queen - [2010] NZCA 570

IN THE COURT OF APPEAL OF NEW ZEALAND
CA448/2010
[2010] NZCA 570

BETWEENGARY MORELL

Appellant

ANDTHE QUEEN

Respondent

Hearing:23 November 2010

Court:Harrison, Ronald Young and Keane JJ
Counsel:Appellant in Person

N P Chisnall for Respondent
D J O'Connor for Official Assignee
C R Vinnell for Mascot Finance Ltd (in Receivership)

Judgment:30 November 2010 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS OF THE COURT
(Given by Harrison J)
Introduction
[1] Gary Morell appeals to this Court against a decision of Judge Crosbie in the District Court at Christchurch on 9 June 2010, made under the now repealed Proceeds of Crime Act 1991 (the Act), vesting the proceeds of sale of a property at Worcester Street, Christchurch in Mascot Finance Limited (in receivership) subject to the interest of any other registered mortgagee or the Official Assignee ranking prior to Mascot. The Judge’s order followed his earlier decision (the first decision) delivered on 18 April 2008, which directed forfeiture of the property on the Solicitor-General’s application.[1]
[1]Pursuant to the Proceeds of Crime Act 1991, s 15. Solicitor-General v Machirus DC Christchurch CRI-2007-009-12895, 18 April 2008.
[2]        Mr Morell filed written submissions in support of his appeal. On analysis, they were a wide ranging series of unconnected complaints about process. They did not address the merits of the decision under appeal or objections raised by both Mr Chisnall for the Crown and Mr Vinnell for Mascot about this Court’s jurisdiction to hear the appeal. Without prior notice, Mr Morell emailed the Court just before the appeal was called for argument. He advised that he relied on his written submissions and would not be appearing. It was thus unnecessary to call upon counsel for the other parties.
[3]        The proceeding has a long and complex history. It was closely entwined with the result of a criminal trial of Mr Peter Machirus who owned a property at 43 Acheson Avenue, Christchurch, which was also subject to the Solicitor-General’s application. However, it is unnecessary to traverse that history given our satisfaction that Mr Morell’s appeal must fail for two independent reasons: first, he has no standing; and, second, this Court does not in any event have jurisdiction.
Decision
(a)         Standing
[4]        At the time of the Solicitor-General’s originating application, Mr Morell was registered as owner of the Worcester Street property. An issue was whether he held title as nominee or agent for Mr Machirus. The property was subject to a mortgage in favour of Countrywide Banking Corporation Ltd. Mascot had also registered a caveat to secure advances made to Mr Morell which were guaranteed by Mr Machirus.
[5]        Mr Morell defaulted on his obligations to Countrywide. It then instituted mortgagee sale proceedings. The property was sold by this means in April 2008, apparently after the first decision was reserved but before its delivery. In accordance with that decision Countrywide accounted to the Official Assignee for the balance of the proceeds of sale after satisfaction of its debt. Following Judge Crosbie’s second decision,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Morell v The Queen

Details

AGLC: Morell v The Queen [2010] NZCA 570
Case: [2010] NZCA 570
Decision Date: 30 November 2010

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Gary Morell sought to appeal a decision of Judge Crosbie in the District Court at Christchurch. This decision was made under the repealed Proceeds of Crime Act 1991 and involved the vesting of the proceeds from the sale of a property located at Worcester Street, Christchurch, into Mascot Finance Limited, subject to the interests of any other registered mortgagee or the Official Assignee. The appeal was dismissed on the grounds of lack of standing and lack of jurisdiction. Mr Morell's submissions were a series of unconnected complaints about the process, without addressing the merits of the decision or the objections raised by counsel for the Crown and Mascot about this Court's jurisdiction to hear the appeal. The Court found that Mr Morell's interest in the property had been extinguished, and therefore, he had no standing to bring this appeal. The Court also found that it did not have jurisdiction to determine the appeal. The appeal was dismissed.

The legal issues the court was required to decide included whether Mr Morell had standing to bring the appeal and whether the Court of Appeal had jurisdiction to hear the appeal. The Court held that Mr Morell had no standing to bring the appeal because his interest in the property had been extinguished. The Court also held that it did not have jurisdiction to hear the appeal because the vesting order made by Judge Crosbie did not fall into any of the three categories of orders that could be appealed to the Court of Appeal under the Act. The appropriate course for Mr Morell, if he had standing and wished to challenge the decision, would have been to appeal to the High Court under section 72 of the District Courts Act 1947 or to apply by way of review. The Court held that Mr Morell did not take either of these steps, and therefore, the Court of Appeal did not have jurisdiction to determine his appeal.

Orders