SUPREME COURT OF SAMOA
Attorney General v Fiti & Others [2014] WSSC 63   

Case name: Attorney General v Fiti & Others
Citation: [2014] WSSC 63
Decision date: 30 August 2014
Parties: 
ATTORNEY GENERAL Applicant A  N  D MAGELE FITI of Salelavalu,Savaii Businessman. Respondent A  N  D LOLI OSA AH KOUIof Salelavalu, Savaii Businessman. First Third Party A  N  D DEVELOPMENT BANK OF SAMOA Second Third Party A  N D SAMOA BREWERIES LIMITED Third Third Party
Hearing date(s): 11 July 2014
File number(s): MISC 384/14
Jurisdiction: CIVIL
Place of delivery: MULINUU
Judge(s): CHIEF JUSTICE PATU FALEFATU MAKA SAPOLU
On appeal from:
Order:
Representation: 
M T Lui and B Faafiti-Lo Tam for applicant 
L Tamati for respondent and first third party
T Atoa for second third party
S Vaai for third third party
Catchwords: 
tainted property, conspiracy to defraud,
Words and phrases:
Legislation cited:
Crime Act 2007
Cases cited:
Lyall v Solicitor General [1997] 2 NZLR 641
Monk v R [2013] NZCA 564
R v Dunsmuir [1996] 2 NZLR 1
R v Elliot [2010]NZHC 1409
R v Haded (1989) CCC (NSW)
R v Van de Ven [2013] NZHC 479
Solicitor General v Barker and Atlas Property Investment Ltd [2009] NZHC 686
Solicitor General v Wikitera [2010] NZHC 908
Solicitor General v Sanders (1994) 2 HRNZ 24
Taylor v Attorney of South Australia (1991) 55 SASR 462
Summary of decision:

IN THE SUPREME COURT OF SAMOA 
HELD AT MULINUU

File No. MISC 384/14

IN THE MATTER:	of an application for a forfeiture order pursuant to sections 14, 15 and 19 of the Proceeds of Crime Act 2007.

A  N  D:

IN THE MATTER:	of an application for an order about interest in property pursuant to section 21 of the Proceeds of Crime Act 2007.

BETWEEN

ATTORNEY GENERAL

Applicant

A  N  D

MAGELE FITI of Salelavalu, Savaii Businessman.

Respondent

A  N  D

LOLI OSA AH KOUI of Salelavalu, Savaii Businessman.

First Third Party

A  N  D

DEVELOPMENT BANK OF SAMOA

Second Third Party

A  N  D

SAMOA BREWERIES LIMITED

Third Third Party

Counsel
M T Lui and B Faafiti-Lo Tam for applicant 
L Tamati for respondent and first third party
T Atoa for second third party
S Vaai for third third party

Hearing:	11 July 2014 and 30 August 2014
		
Judgment:	30 August 2014

Reasons for Judgment: 9 October 2014

REASONS FOR JUDGMENT 
Introduction 
1.	On 11 July 2014, I heard an application for a forfeiture order in respect of a motor vehicle which is a 2001 Blue FAW 6 Wheeler truck registration number 6168 and $2,000 cash made by the Attorney General (“the applicant”).  This application was made against the respondent pursuant to s.14 of the Proceeds of Crime Act 2007.  The respondent did not oppose the application in respect of the $2,000. I need not therefore be further concerned with the order in respect of the $2,000.  
2.	The application for a forfeiture order against the vehicle was part-heard and then further adjourned for any third party with any right or interest in the vehicle to be joined as a third party.  Subsequently, Loli Osa Ah Kuoi of Salelavalu, Savaii, businessman, was joined as first third party, the Development Bank of Samoa as second third party, and the Samoa Breweries Ltd as third third party.
3.	All of the third parties opposed the application for a forfeiture order in respect of the vehicle.  Each of them also filed an application for relief against forfeiture of the vehicle pursuant to s.21(1) and (2) of the Act.  I dealt primarily on 30 August 2014 with the application for a forfeiture order in terms of s.19 (4) as the oral arguments by counsel were mainly directed to that application and the issue of tainted property.  At the end of the argument, I delivered a short oral judgment granting the application for a forfeiture order.  I told counsel that my reasons for judgment will be reduced to writing and delivered to them in due course.  These are those reasons.
4.	During the preparation of these reasons, it occurred to me that I may not have given judgment on the applications by the third parties for relief against forfeiture pursuant to s.21(1) and (2) of the Act.  This must have been because the oral arguments at trial were mainly and largely directed at the application by the Attorney General for a forfeiture order and the issue of tainted property.  Judgment was given straight after the hearing.
Background 
5.	I have found the facts relating to the business operations involved in this case somewhat confusing.  A company extract from the Ministry of Commerce, Industry and Labour shows a private company registered in the name of Savaii Distribution Ltd with its registered office at Salelologa, Savaii.  The company was only incorporated on 10 May 2013.  The sole director of the company is the first third party, Loli Osa Ah Kuoi.  Three of the fourteen shareholders of that company are the first third party, his wife, and his son Magele Fiti who is the present respondent.
6.	In the affidavit of 23 July 2014 by the first third party, he says that he is a businessman and owns a retail store, bus transport business, and a copra business.  He also says that he is the registered owner of the vehicle which is the subject of the present forfeiture proceedings and the vehicle was normally used in his copra business.  If this is correct, then the company Savaii Distribution Ltd has no assets or business operation of its own at this stage.  All the relevant assets and business operations belong to the first third party, the father of the respondent.
7.	In the judgment of the District Court delivered on 14 March 2014 in relation to the bribery charges brought by the police against the respondent, the trial Judge refers to a business operated under the name of Queen Maggie.  A very major part of the operations of this business is the distribution around Savaii of beer and other products bottled by the third third party, Samoa Breweries Ltd.  It would appear from the documentation filed by the Attorney General, as the applicant, that Queen Maggie is only a trade name but not the name of a registered company or of an individual person. It is the first third party Loli Osa Ah Kuoi who trades under the name of Queen Maggie.
8.	According to what the first third party says in his affidavit, he purchased the vehicle in question in 2006 for $130,000.  It was then a second hand truck.  The current estimated value of the vehicle is about $20,000.
9.	On a date which is not clear from the affidavit evidence, the third third party entered into an agreement with Queen Maggie for the distribution of the third third party’s beer and other bottled products around Savaii. The said vehicle was used by the respondent to distribute the third third party’s beer and other bottled products around Savaii pursuant to the said agreement.  The respondent was primarily responsible for running the distribution side of his father’s business.  Prior to the use of the vehicle in 2011 to distribute the third third party’s bottled products around Savaii, the first third party was using the vehicle in his business to transport coconuts for making copra from which he used to earn about $6,000 a week.
10.	Not only was the vehicle used to distribute bottled products for the third third party, but it was also used to return crates of empty bottles from Savaii to the premises of the third third party at Vaitele near Apia.  These crates of empty bottles brought by the first third party’s vehicle to Vaitele would be checked and counted by the employees of the third third party to see whether they correspond with the number of crates of empty bottles shown in the delivery invoices which had been prepared by the respondent.  After the check, the account of Queen Maggie with the third third party would receive an appropriate credit for the number of returned crates of empty bottles.
11.	It was then discovered about mid 2012 that the respondent with certain employees of the third third party had on five separate occasions in January and February 2012 defrauded the third third party by falsifying documents so that the account of Queen Maggie with the third third party was given more credit for returned crates of empty bottles than the crates of empty bottles that were actually retuned by the respondent using the vehicle which is the subject of the forfeiture proceedings.  The total value of the credits falsely recorded in the account of Queen Maggie in this way was $26,097.28.  The respondent was subsequently charged by the police with five counts of conspiracy to defraud to which he pleaded guilty after an initial plea of not guilty was vacated.  He was sentenced to a total of 2½ years imprisonment.  He was also charged with three counts of bribery of police officers.  He maintained his not guilty plea to those counts but was found guilty at trial.  He was sentenced to a total of 6 months imprisonment on those counts.  The two sentences were made cumulative so that the respondent is now serving a total sentence of 3 years imprisonment.
12.	In his affidavit of 23 July 2014 filed in support of his motion opposing the making of a forfeiture order under s.19 of the Act and seeking relief against forfeiture under s.21(1) and (2), the first third party says that he is the registered owner of the vehicle in question.  He had purchased the vehicle in 2006 with his own money.  He was not aware that the vehicle was being used by his son the respondent in the commission of the offences for which he has been imprisoned.  He also says that during the time these offences were committed he and his wife were ordinarily resident in New Zealand for medical treatment and his son the respondent was in charge of his business operations as he wholeheartedly trusted his son.  The first third party further says that his vehicle had been used in the transportation of coconuts for making copra from which he was earning $6,000 a week.  Since his vehicle was seized, he has been earning about half of that amount which has caused him hardship.
13.	During the hearing of submissions by all counsel, it appeared to me that since 2011 this vehicle was used exclusively, or almost exclusively, for the distribution of the third third party’s beer and other bottled products around Savaii.  So this vehicle could not have been used for the transportation of coconuts for making copra.  At least this vehicle could not have been used that often for that purpose.  The first third party also has two other trucks which could have been used for that purpose.
14.	The first third party also says that the respondent had started committing “the offences” in or around 2011.  This is in spite of the fact that the incidents with which the respondent was charged by the police occurred in January and February 2012.
15.	The affidavit of 25 July 2014 by the manager of the Savaii branch of the second third party shows that the vehicle in question was one of the securities provided for a loan made by the first third party and his wife with the second third party in 2010.  Counsel for the applicant informed the Court that part of that loan has been repaid.  On 20 September 2012, the second third party granted an additional loan to the first third party and his wife and the vehicle remained as part of the securities for the original loan and the additional loan.  The manager of the Savaii branch of the second third party also says that the value of the securities is insufficient to cover the current outstanding balance owed by the first third party and his wife to the second third party.
16.	The third third party in its submissions opposes the making of a forfeiture order in respect of the vehicle under s.19 and also seeks relief against forfeiture as a third party under s.21(1) and (2).  The basis on which the third third party claims an interest in the vehicle is that it has filed a civil claim against the respondent for about $2,000,000 as a result of the offences involving the respondent and one of the assets to which the third third party could have recourse to satisfy any judgment it may obtain against the respondent is the vehicle.  The third third party may not be aware that the vehicle does not belong to the respondent but to his father the first third party who is also registered as the owner of the vehicle.  So the third third party is highly unlikely to be able to enforce any judgment it may obtain against the respondent in respect of the vehicle.  
17.	The third third party also says that it has a guarantee from the second third party for any indebtedness of the first third party and his wife as owners of Queen Maggie.  If that is so, the third third party’s interest lies in the guarantee and not the vehicle.  It is the guarantee which is the security for the third third party and not the vehicle.  
The policy of a Proceeds of Crime legislation
18.	The policy of a Proceeds of Crime legislation was stated in relation to the Proceeds of Crime Act 1991 (NZ) in R v Dunsmuir [1996] 2 NZLR 1 where McKay J, in delivering the judgment of the New Zealand Court of Appeal, said at pp. 6-7:
“Where a forfeiture order is made in respect of property representing the proceeds of crime, it merely takes from the criminal his ill-gotten gains.  There can be no complaint as to that.  A forfeiture order in respect of property used for the commission of a crime goes further.  It is an additional penalty provided by Parliament as a deterrent.  The criminal is sentenced for his crime, and in addition any of his property used to commit or facilitate the crime is liable to forfeiture.  If this is Draconian that appears to be the intention of the legislation.  Innocent third parties who have an interest in the property are protected under ss17 and 18.  The offender who puts his property at risk by using it for criminal purposes must face the consequences”. 
19.	Even though the definition of “tainted property” under our Proceeds of Crime Act 2007 is not identical to the definition of “tainted property” under the Proceeds of Crime Act 1991 (NZ), they are very similar.  Both definitions provide for two kinds of “tainted property” which are the proceeds of crime and property used in the commission of a serious offence.  The passage just cited from R v Dunsmuir [1996] 2 NZLR 1 reflects those two kinds of tainted property.  In R v Elliot [2010]NZHC 1409 , Heath J said para [40]:
‘“In R v Dunsmuir [1996] 2 NZLR 1, the Court of Appeal drew a distinction between the two types of ‘tainted property’, saying that a forfeiture order in respect of the proceeds of crime ‘merely takes from the criminal his [or her] ill-gotten gains’, while such an order in respect of property used for the commission of a crime went further and ought to be regarded as ‘an additional penalty provided by Parliament as a deterrent”’.
The relevant provisions of the Proceeds of Crime Act 2007
20.	Section 14(1)of the Proceeds of Crime Act 2007 which gives the Attorney General power to apply for a forfeiture order or a pecuniary penalty order upon conviction of a person of a serious offence provides:
“(1)	Subject to subsection (2), if a person is convicted of a serious offence, the Attorney General may apply to the Court for one or both of the following orders:
	“(a)  	a forfeiture order against tainted property; and
 “(b)  	a pecuniary penalty order against the person for benefits derived by the person from the commission of the offence.”
21.	We are only concerned in these proceedings with an application by the Attorney General for a forfeiture order against tainted property in terms of s.14 (1)(a). There is no application for a pecuniary penalty order in terms of s14(1) (b).  The expression “serious offence” used in  s14(1), in so far as relevant, is defined in s.2 of the Act as follows:
“‘serious offence’ means an offence:
“(a)	against any law of Samoa that would constitute unlawful activity.”
22.	The expression “unlawful activity” is defined as follows:
“‘unlawful activity’ means any act or omission that constitutes an offence that is punishable under the laws of Samoa for a maximum period of not less than 12 months [imprisonment]”
23.	Even though one would understand the definition of “unlawful activity” to be referring to a maximum penalty of 12 months imprisonment, the word “imprisonment” should have been added after the words “12 months.”
24.	The expression “tainted property” is defined as follows:
“‘tainted property’ means proceeds of crime or an instrument,  whether the property is situated within or outside Samoa”
25.	The term “instrument”, in so far as relevant, is defined as:
“‘instrument’ in relation to property, means the property:
“(a)	is used in, or in connection with, the commission of a serious offence”.
26.	Section 19(1) which gives the Court power to make a forfeiture order against tainted property upon conviction of a person provides:
“(1)	Where, upon application by the Attorney General, the Court is satisfied that property is tainted property in respect of a serious offence of which a person has been convicted, the Court may order that the property, or so much of the property as specified by the Court in the order, be forfeited to the State.”
27.	Section 19(4) which sets out the considerations that may be taken into account by the Court in the exercise of its discretion whether to make a forfeiture order then provides:
“(4)	In considering whether to make a forfeiture order against property, the Court may take into account:
(a)	any right or interest of a third party in the property; and
(b)	the gravity of the offence concerned; and
(c)	any hardship that may reasonably be expected to be
caused to any person by the operation of the order; and
(d)	the use that is ordinarily made of the property or the use to which the property was intended to be put.
28.	Section 21 which provides protection for third parties then relevantly provides:
“ (1)	If an application is made for a forfeiture order against property, a person who claims an interest in the property may apply to the Court, before the forfeiture order is made, for an order under subsection (2).
“(2)	If a person applies to the Court for an order about the person’s interest in property, the Court shall make an order declaring the nature, extent and value (as at the time the order is made) of the person’s interest if the Court is satisfied on a balance of probabilities:
(a)	that the applicant was not involved in committing an offence in relation to which forfeiture of the property is sought, or a forfeiture order against the property was made; and
(b)	if the applicant acquired the interest when, or after, the offence was committed - that the applicant acquired the interest-
(i)	for sufficient consideration; and
(ii)	without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was, at the time of the acquisition, tainted property.
Discussion 
(a)	Application for a forfeiture order under s.19
29.	The crucial provisions of the Act for the purposes of this part of the proceedings are the definition of “tainted property” and s.19(4).  It was submitted by counsel for the second third party and the third third party that the vehicle in question is not tainted property.  I do not agree.  The respondent pleaded guilty and was convicted of the offence of conspiracy to defraud.  Such an offence is committed when the conspirators enter into a conspiracy or agreement to defraud someone. The maximum penalty for this offence is 3 years imprisonment.  The vehicle was clearly used in furtherance of the conspiracy by the respondent and certain employees of the third third party in order to achieve the purpose of the conspiracy which was to defraud the third third party.  It is true that the vehicle may not have come into the picture at the time the conspiracy was entered into between the conspirators or form part of the conspiracy at that time.  But there is no evidence whether that was actually so.  However, in terms of the definition of “instrument”, the vehicle was actually used “in connection with” the commission of the conspiracy to defraud which is a “serious offence” because it is an “unlawful activity” that carries a maximum penalty of not less than 12 months imprisonment.  It follows that the vehicle is tainted property.
30.	In terms of the considerations provided in s.19(4) as being relevant to the exercise by the Court of its discretion whether to issue a forfeiture order against the vehicle, I am satisfied that the first third party has an interest in the vehicle being its owner.  The second third party also has an interest in the vehicle because of its chattels mortgage over the vehicle as one of the securities for the original and additional loan it granted to the first third party and his wife.  On the other hand, the third third party does not have any interest in the vehicle.  It is also highly unlikely that the third third party will be able to enforce against the vehicle any judgment it may obtain in its civil claim against the respondent.  This is because the owner of the vehicle is not the respondent but his father, the first third party.  The guarantee from the second third party to the third third party for any indebtedness of the first third party and his wife to the third third party also gives no interest to the third third party in the vehicle.  The vehicle is not part of the guarantee which is an undertaking pertaining to the second third party as guarantor..
31.	In terms of the gravity of the offence, conspiracy to defraud any person is a serious offence.  Its maximum penalty of 3 years imprisonment reflects its seriousness in the eyes of the legislature.
32.	In terms of hardship to any person if an order is made, the making of a forfeiture order will inevitably result in hardship to someone.  But not any such hardship would be enough.  The hardship would have to be “undue hardship” even though the word “undue” is not used in s.19(4) (c) to qualify the word “hardship”.  In this connexion, I refer to the two cases cited by counsel for the applicant on the meaning to be given to the word “hardship” in s.19(4)(b) of the Act.  The first is the judgment of the New South Wales Court of Criminal Appeal in R v Haded (1989) CCC (NSW) 304 where McInerney J, in relation to the Crimes (Confiscation of Profits) Act 1985 (NSW), said at p.309:
“The Court has to consider in the exercise of its discretion two matters: the use that is ordinarily or intended to be made of the property and, secondly, any hardship that may reasonably be likely to arise following the forfeiture of that property.  It must be pointed out, of course, there would always be hardship stemming from the Act itself, but, in my view, that is not the hardship about which the Act speaks and to which a Court is entitled to have regard”.  
33.	The second case cited by counsel for the applicant in this connection is the judgment of the New Zealand Court of Appeal in Lyall v Solicitor General [1997] 2 NZ 641, where Blanchard J, in delivering the judgment of the Court, said at p.646:
“There will always be some hardship to an offender and sometimes to a third party when a forfeiture order is made.  It stems from the operation of the Act and is disregarded:  R v Haded (1989) 16 NSWLR 476.  Section 15(2) refers to undue hardship.  Here there can be no undue hardship to anyone other than Black in the making of the forfeiture order because the other interests (those of Lyall and the mortgagee) are able to be addressed under ss.17 and 18”. 
34.	The above passage from Lyall v Solicitor General [1997] 2 NZLR 641, 646 was cited with approval in the subsequent judgment of the New Zealand Court of Appeal in Monk v R [2013] NZCA 564, para [53].
35.	Undue hardship means a level of hardship above that ordinarily contemplated:  see, for example, Solicitor General v Wikitera [2010] NZHC 908, para [33].  The factors to be taken into account when considering the question of undue hardship are set out in several judgments of New Zealand High Court.  It will suffice for present purposes to refer to Solicitor General v Barker and Atlas Property Investment Ltd [2009] NZHC 686 where Dobson J said at para [30]:
“The following non-exclusive factors to be addressed when considering the issue of hardship were listed in Taylor v Attorney of South Australia (1991) 55 SASR 462 (SC SA) at 474, and adopted in Solicitor General v Sanders (1994) 2 HRNZ 24:
“(i)	The value of the property to be forfeited;
“(ii)	In the case of drug offending, the value of the drugs or the size of the crop;
“(iii)	Whether the property was acquired with the proceeds of the offending;
“(iv)	The extent of the offender’s interest in the property;
	“(v)	The utility of the property to the offender;
	“(vi)	The length of ownership;
“(vii)	The extent to which the property is connected with the commission of the offence;
“(viii)	The fact that forfeiture is intended as a deterrent; and
“(ix)	The likely consequences of the forfeiture order on both the offender and third parties.
36.	The reasons for the commission of the offence are generally not relevant.
37.	Not all of the above factors are relevant to this case.  In relation to the factors which are relevant, the estimated value of the vehicle which is the subject of the forfeiture proceedings is about $20,000.  The respondent has no personal interest in the vehicle as it belongs to his father. The vehicle was purchased by the respondent’s father with his own money about six years before the respondent’s offending.  The vehicle was, however, used to achieve the purpose of the conspiracy to defraud for which the respondent has been imprisoned.  Even though the total amount involved in the offences for which the respondent has been imprisoned is around $26,000, the third third party has filed a civil claim against the respondent for about $2,000,000 in connexion with the offending.  The only utility of the vehicle to the respondent is that he had driven it for the purposes of his father’s business operations.  Apart from the first third party and the second third party, there is no other third party with an interest in the vehicle.  The interests of the first third party and the second third party are to be addressed under s.21.
38.	In terms of the ordinary use of the property under s.19(4) (d), it is clear from the affidavit evidence that from 2011 to the time the offences for which the respondent were committed, the vehicle was ordinarily used by the respondent and Queen Maggie for the distribution of the third party’s beer and other bottled products around Savaii and for returning crates of empty bottles from Savaii to the third third party’s premises at Vaitele.  This was a very major part of Queen Maggie’s operations at the time.  From the affidavit evidence, I therefore do not accept that at and around the time of the offending, the vehicle was ordinarily used for the transportation of coconuts for making copra.
39.	In weighing all of the above circumstances, I decided to issue a forfeiture order in respect of the vehicle pursuant to s.19(1).  
(b)	Application for relief against forfeiture under s.21
40.	Section 21 (1) of the Proceeds of Crime Act 2007 enables a third party who claims an interest in the property which is the subject of forfeiture proceedings to apply for relief against forfeiture under s.21(2) before a forfeiture order is made.  In dealing with such an application for relief against forfeiture, the Court is required under s.21 (2) to make an order declaring the nature, extent and value of the third party’s interest in the property if it is satisfied that the third party was not involved in the commission of the offence to which forfeiture of the property is sought.
41.	To give only a few examples of how this kind of provision for relief against forfeiture works out in practice, I refer again to R v Elliot [2010] NZHC1409 which dealt, inter alia, with applications for relief against forfeiture by third parties.  At para [65], Health J stated:
•	“Bank of New Zealand has a mortgage over the Moana Road property.  It sought relief from forfeiture in respect of its mortgage debt, on the grounds that it was not involved in the qualifying offending on which the application for forfeiture was made.  As at 24 March 2010, the bank’s interest in the property was $66,655.34.  The Crown has no opposition to the bank’s application.”
42.	In Solicitor General v Wong (1997) 14 CRNZ 624 cited by counsel for the second third party,  Gendall J stated at pp 629 – 630:  
“The mortgagee, the National Bank, does have an interest in the property in terms of the Proceeds of Crime Act 1991 and would, if a forfeiture order followed, be entitled as a third party to apply for relief pursuant to s.17, in respect of that interest.  Crown counsel and counsel for the mortgagee have concurred that if a forfeiture order is made then the basis of that order would be that it contained a term:
‘“This order is made subject to the interest of the National Bank of New Zealand Limited and mortgage number 718996/2 (Otago Land Registry) and without prejudice in any way to all the rights and remedies of the National Bank of New Zealand Limited thereunder.”’
43.	In Commissioner of New Zealand Police v  Bradley [2012] NZHC 1594, the Court dealt with an application by the Commissioner of Police for restraining and forfeiture orders against certain properties, including land and buildings occupied and used by Bradley but owned by another person.   The land and buildings were subject to a mortgage by the third respondent, Westpac New Zealand Ltd.   In the consent forfeiture order that was granted by the Court, the order was made subject to the interests of the third respondent, Westpac New Zealand Ltd, as mortgagee.  At para 7 Woolford J said:
“(a)	The following property is forfeited by consent pursuant to s.50 of the Criminal Proceeds (Recovery) Act 2009 (Act):
(i)	All the land and buildings of 16 Jameson Avenue, Rotorua, described in the certificate of title SA 39C/1994 South Auckland Land Registration District being 703 square metres more or less on Lot 193 Deposited Plan South Auckland 10334; and
(ii)	…
“(b)	This order is subject to the secured interests of the third respondent in the property specified at (a) (i).”
44.	In the case of R v Van de Ven [2013] NZHC 479 the Court dealt, inter alia, with an application made by the father of the offender for relief from the effect of a forfeiture order on the grounds that the father, and not the offender, owns the property which was the subject of the forfeiture order and he was not involved in the qualifying offending committed by the offender.  The application for relief was granted.  
45.	There are other New Zealand cases which deal with relief sought by a third party against forfeiture or the effects of a forfeiture order but it is not necessary to refer to any more of them for present purposes.
46.	The first third party who is the owner of the vehicle against which the forfeiture order was granted on 21 August 2014 was not involved in the commission of the offences for which the respondent has been imprisoned.  His application for relief against forfeiture should therefore be granted and the nature, extent and value of his interest in the vehicle should be noted on the order.  Likewise, the second third party.  Its application for relief based on its interest in the vehicle pursuant to a chattels mortgage should also be granted.  The nature, extent and value of that interest should also be noted on the order.
47.	Due to developments between the parties since the forfeiture order was made on 21 August 2014, counsel for the applicant and counsel for the second third party agreed on 8 October 2014 to have the order discharged.  The order was accordingly discharged.  There are now no further proceeding in this matter.  

…………………………….
CHIEF JUSTICE