Police v Bentson [2021] NZDC 16574 (10 August 2021)

Last Updated: 7 March 2022

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

IN THE DISTRICT COURT AT DARGAVILLE I TE KŌTI-Ā-ROHE KI TĀKIWIRA

CIV-2020-011-000030 [2021] NZDC 16574

BETWEEN	NEW ZEALAND POLICE Plaintiff
AND	RONGO BENTSON KAHUKUA BENTSON IHAPERA PANIORA Respondents

Hearing:	10 August 2021
Appearances:	D Reeves for the Plaintiff Respondents appear in Person
Judgment:	10 August 2021

ORAL JUDGMENT OF JUDGE J BERGSENG

[1] This is an application under s 154 of the Search and Surveillance Act 2012 whereby the New Zealand Police at Dargaville are seeking an order that a Harley Davidson motorcycle be delivered to the person appearing to the Court to be its owner and entitled to possession of it.

[2] The background to this is that on 4 June 2020, there was a report that a 2008 Harley Davidson motorcycle, registration A5SPW, had been stolen. This inquiry was assigned to Snr Constable Wendy McDermott, who has filed this application. Snr Constable McDermott has detailed the background of her dealings with the respondents and the motorbike.

[3] The first respondent, Mr Rongo Bentson, is the father of the second respondent, Kahukura Bentson, and the third respondent, Ihapera Paniora, was previously married

NEW ZEALAND POLICE v RONGO BENTSON [2021] NZDC 16574 [10 August 2021]

to Kahukura Bentson. They have since separated. It is against that background that this application was filed.

[4] As described in the application, Snr Constable McDermott noted that on 4 June 2020 the motorbike was reported as being stolen by Mr Rongo Bentson. He claimed that the motorbike was his and that he had lent it to his son, Kahukura.

[5] On 5 June 2020, Kahukura attended at the Whangārei Police Station where he made a formal complaint about the motorcycle being taken by Joseph Paniora. He said he had gone to Joseph’s address to get the motorcycle but was threatened by him. Joseph is Ihapera Paniora’s brother.

[6] In his statement, Kahukura describes the background. He and Ihapera had been married since 2014 but they had recently separated. He said that he had moved out of the family home around 16 May 2020 and around this time he had gone to collect the motorcycle from Ihapera. When he did so she told him that Joseph had taken the motorbike to his home. He then went around to Joseph’s home to collect the bike. He says he was told by Joseph that he was going to be selling the motorbike and that he would give the proceeds to his sister, Ihapera.

[7] When Snr Constable McDermott checked the registration details of the motorbike she found that it had been registered in the name of Ihapera Paniora from about 15 May 2020. Prior to that the motorbike had been registered in Rongo Bentson’s name.

[8] On 18 June, Snr Constable McDermott spoke with Rongo Bentson. He told her that he had purchased the motorbike in January 2015 for $10,000. He bought it for his son, Kahukura, to ride. The arrangement was that Kahukura would repay the

$10,000. Once the debt was repaid he would then transfer ownership of the motorbike to him. Because of a number of reasons that he explained, he thought that he had only been repaid about $1,000. Rongo Bentson said that he had been paying the motorbike’s registration fees at three-monthly intervals. He confirmed that he had not given permission for the bike to be re-registered and that he wanted it back.

[9] On 25 June 2020, Snr Constable McDermott spoke with Ihapera Paniora. She maintained the matter was a civil one, but that since the motorbike had been purchased they, that is her and Kahukura, had paid about $15,000 by her calculation to Rongo for the bike.

[10] As a result of this background, a search warrant was obtained. On 16 July 2020, the police went to Joseph Paniora’s address to uplift the motorbike. Joseph advised that work was being done on the motorbike at the Harley Davidson shop in Dargaville. The police then contacted the owner of that business and the bike was subsequently uplifted. It remains in possession of the police.

[11] On 16 July 2020, Ihapera Paniora attended at the Dargaville Police Station with an unsigned statement that she had prepared. Regarding the motorbike, she said that it had been purchased approximately five years ago for $10,000; $5,000 of the purchase price came from her and Kahukura, the remaining $5,000 came from Rongo Bentson, being a loan to Kahukura. Since the time of the purchase, she said that Kahukura had paid $100 per fortnight to Rongo. She calculated that over the five- year period approximately $13,000 had been repaid.

[12] She provided two documents from the ASB bank. They both refer to a joint account of herself and Kahukura. One of the documents shows Ministry of Education payments between 17 December 2019 and 19 May 2020. The second document shows fortnightly payments of $100, together with one payment of $50 and one payment of

$200, going to account number [deleted]. The reference on the payment is Kahukura. The inference being that these are the regular payments that she referred to being made to Rongo.

[13] Additionally, Ms Paniora provided two invoices for work that was done on the motorbike by Powerhead Motorcycles Limited. Both invoices were addressed to Kahukura. They totalled approximately $1,750.

[14] In response to the police application, Mr Rongo Bentson has filed a document, it is dated 1 March 2021. In that document, he states his belief that he is the rightful owner of the motorbike. He says that he purchased it himself with the assistance from

some of his children, that it was registered in his name, that he had not sold it, nor had he agreed to it being sold.

[15] Kahukura sent an email to the Court on 26 February 2021, attached to that email was a copy of a Relationship Property Agreement entered into between himself and Ihapera. The agreement, which is dated 19 February 2021, records the motorbike as being relationship property (clause 3.1(e)), and that a Harley Davidson Nightster would be retained by Kahukura as his separate property (clause 6.2(a)).

[16] In response to my query all parties confirm that the reference in the Relationship Property Agreement to the Harley Davidson Sportster at clause 3.1(e) and the reference in clause 6.2(a) to a Harley Davidson Nightster is a reference to one and the same motorcycle. They have simply described the motorbike in slightly different ways.

[17] Clause 8.1(d) of the agreement records that both parties shall use their best endeavours to ensure the return of the Harley Davidson to Kahukura or his father, Rongo Bentson.

[18] Ihapera has filed an affidavit dated 8 June 2021. In her affidavit, she goes into the background of the motorbike. She explains that these events arose due to her ending her relationship with Kahukura and attempting to preserve relationship property, pending settlement of their affairs. I will not go into all of the detail, just those relevant background details. Essentially, Ihapera repeats that what she told Snr Constable McDermott on 24 June 2020, as to the origins of the motorcycle as being true and correct, and that is reference to $5,000 from her and Kahukura and

$5,000 from Rongo. As for registration of the motorbike in Rongo Bentson’s name, she says that Kahukura had explained to her that this was as a safeguard for the $5,000 loan from Rongo to Kahukura, and there was a second reason, that being that it would mean cheaper insurance for Kahukura if the motorbike was registered in his father’s name.

[19] As for the lack of bank documentation to support the claim that she and Kahukura had repaid $13,000, she explains that she no longer has access to these

accounts. Ihapera maintains that the initial complaint that the motorbike had been stolen, made by Kahukura and/or by Rongo, was a false complaint and that it is her wish to ensure that the court record properly reflects what had occurred. Ihapera supports the finding that the motorbike be confirmed as relationship property, jointly by herself and Kahukura, and not property belonging to Rongo Bentson.

[20] Each of the parties has appeared at court this morning, together with Snr Constable McDermott. It has been confirmed that no one wishes to cross-examine Snr Constable McDermott and no one wishes to give any other evidence in respect of the matter before the Court.

[21] Section 154 of the Search and Surveillance Act provides that:1

If a thing seized or produced is not to be produced in evidence but there is a dispute about its ownership or for any reason the person in whose custody it is, is uncertain as to whom the thing should be returned, the person in whose custody the thing is may apply to the District Court for directions as to the ownership or holding of the property.

On an application under subsection (1), the Court may –

(a) Order that the thing be destroyed or, if any other enactment so authorises, forfeited to the Crown:

(b) Or, order that the thing be delivered to the person appearing to the court to be its owner entitled to possession of it:

(c) Or, if the owner or person entitled to possession cannot be found, make an order with respect to its possession or sale the court thinks fit.

[22] In this case, there is an ongoing dispute about ownership. The dispute regarding ownership as between Ihapera and Kahukura has been resolved by their entering into the Relationship Property Agreement. Pursuant to that agreement, they have both declared that the motorbike was relationship property, they have both agreed that it is after the execution of the agreement, so after 19 February 2021, it is to be the separate property of Kahukura, and that they will each use their best endeavours to ensure that the motorbike is returned to Kahukura or to his father, Rongo. So, as between those two, there are no outstanding issues regarding ownership.

1 Search and Surveillance Act, ss 154(1) and (2).

[23] There, however, remains an ongoing issue as to ownership as between them and Rongo Bentson. Mr Rongo Bentson maintains that he is the owner of the motorbike. He has, however, agreed that he would abide by the court order if it was that the bike was ultimately to end up with his son, Kahukura. Rongo Bentson has not filed a notice of opposition but, then again, none of the parties have filed a notice of opposition.

[24] However, it has been clear that Rongo Bentson has always maintained an interest in this application and he has done that through his contact with the Snr Constable McDermott and his email to the Court. However, despite being directed to file evidence, he has not filed any evidence to support his claim.

[25] Kahukura Bentson, likewise, has not filed any evidence that would otherwise support the claim that the motorbike belonged to his father, Rongo. To the contrary, Kahukura is a party to the Relationship Property Agreement which described the motorbike as being relationship property.

[26] The evidence that is before the Court supports a finding that the Harley Davidson motorbike, registration A5SPW, was purchased as described by Ihapera Paniora in her affidavit, that is $5,000 came from her and her then husband, Kahukura, and that there was a loan of $5,000 that was between Kahukura and is father, Rongo. Registration is different from ownership. In this case, the registration of the motorbike in Rongo Benson’s name has been explained. It was for security purposes in relation to the $5,000 loan and the additional benefit of cheaper insurance.

[27] When all of the evidence is considered, I accept Ihapera’s evidence that over the five-year period that she and Kahukura have repaid the loan, most likely significantly more than the $5,000 that was owing. The motorbike was their joint property and that is how they dealt with the property when they entered into the Relationship Property Agreement.

[28] Accordingly, the order I make under s 154 of the Search and Surveillance Act is that the motorbike is to be delivered to Kahukura, the persons most likely appearing to be the owners, Kahukura and Ihapera, but by reason of the Relationship Property

Agreement of 19 February 2021 they have agreed that it as from that date becomes the separate property of Kahukura.

Judge J Bergseng

District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 21/09/2021