THE SOLICITOR GENERAL OF NEW ZEALAND V HAWKINS AND ORS HC ROT CIV 2006-463-618 [2009] NZHC 803 (10 July 2009)

IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY
                                                               CIV 2006-463-618



              BETWEEN                  THE SOLICITOR GENERAL OF NEW
                                       ZEALAND
          
                            Applicant

              AND                      EDWARD NERI HAWKINS
                              
        First Respondent

              AND                      PUBLIC SERVICE INVESTMENT
                                     
 SOCIETY (PSIS) LIMITED
                                       Second Respondent

              AND                      FRANCES
LEONIE LAWSON
                                       Third Respondent


Hearing:      10 July 2009

Counsel:      A J Gordon for
Applicant
              P V McGuire for First Respondent
              D Randall for Second Respondent
              F C K Wood for
Third Respondent

Judgment:     10 July 2009


                     (ORAL) JUDGMENT OF HEATH J




Solicitors:
Crown Solicitor, Rotorua
Davys Burton, Rotorua
Macalister Mazengarb, Wellington


THE SOLICITOR GENERAL OF NEW ZEALAND V HAWKINS AND ORS HC ROT CIV 2006-463-618
10
July 2009

[1]      The Solicitor-General seeks an order forfeiting a property at 90 Taharangi
Street, Rotorua. Mr Hawkins manufactured
Methamphetamine at that address.


[2]      Ultimately, Mr Hawkins pleaded guilty to charges of manufacturing
Methamphetamine, possession
of precursor substances, possession of unlawful
materials and possession of equipment for the purpose of manufacturing that drug.
On 28 November 2007, he was sentenced to an effective term of imprisonment of
four years' six months.


[3]      The application
was set down for hearing today. The primary issue is a claim
by Mr Hawkins' de facto wife that she is entitled to receive an interest
in the
property, by virtue of the Property (Relationships) Act 1976. In short, she assets that
"undue hardship" would be caused to
her if an order were not made and the property
forfeited.


[4]      During the course of the hearing an issue arose as to the ability
of the Court
to grant relief of that type, in light of the judgment of Venning J in Solicitor-General
v De Bruin  [2004] 3 NZLR 540 (HC), upheld by the Court of Appeal in De Bruin v
The Queen  [2007] NZCA 600; leave to appeal to the Supreme Court dismissed, De
Bruin v The Queen  [2008] NZSC 32.


[5]      On my reading of those decisions, the Court will rarely grant relief from a
forfeiture order on the basis of an inchoate
right under the statute, certainly not
before any order is made by the Family Court to that effect.


[6]      Mr Wood, for Ms Lawson,
indicates that an application is before the Family
Court.       He has sought an adjournment of today's application to enable that
proceeding to be progressed. Ms Gordon, for the Solicitor-General does not oppose
that course.


[7]      PSIS Ltd is the mortgagee
on the property. It seeks relief to protect it in
respect of the mortgage debt owing and the costs it has incurred in protecting
its
position.

[8]    I make an order today granting relief in favour of PSIS Ltd in respect of the
principal and interest owing
under the mortgage at the time the mortgage is
discharged by agreement or the property sold. So far as PSIS Ltd's costs are
concerned,
I reserve them (at the request of Ms Gordon) for further consideration.


[9]    Without making any direction, an affidavit as to
current costs should be filed
and served by PSIS Ltd. If there were no opposition to the quantum from any of the
parties involved,
a consent order could be sought at the next hearing. If there were
objection then I would expect that issue to be argued before the
Judge who hears the
resumed application under the Act.


[10]   I adjourn the application to a date to be fixed by the Registrar.
One half day
is required for the hearing. The costs of today's hearing are reserved.




                                       
                 _______________________
                                                                      P R Heath J