Between ; Quentin Stobart Haines; First Applicant; and; Bpe Trustees (No 1) Limited; Second Applicant; and; Quentin Haines Properties; Limited; Third Applicant; and; Harry Memelink and Cisca; Forster As Trustees of..
[2024] NZSC 139
•16 October 2024
| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI O AOTEAROA |
| SC 100/2024 [2024] NZSC 139 |
| BETWEEN | QUENTIN STOBART HAINES |
| AND | BPE TRUSTEES (NO 1) LIMITED |
| AND | QUENTIN HAINES PROPERTIES |
| AND | HARRY MEMELINK AND CISCA |
| Court: | Glazebrook, Ellen France and Williams JJ |
Counsel: | J P Dallas for Applicants |
Judgment: | 16 October 2024 |
JUDGMENT OF THE COURT
A The application for stay is dismissed.
BThe applicants must pay the respondents one set of costs of $2,500.
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REASONS
The applicants have applied for leave to appeal to this Court against two decisions of the Court of Appeal.[1] They apply for a stay of this application for leave so they can pursue an application under r 7.51 of the High Court Rules 2016, with regard to the High Court decision of Memelink v Haines.[2] They say that, once their counsel became aware of r 7.51, they were advised to make an urgent application under that rule prior to the determination of the application for leave as, where there is a remedy in a lower court, that remedy should be pursued first.[3]
[1]Haines v Memelink [2024] NZCA 245 (French and Mallon JJ); and Haines v Memelink [2024] NZCA 374 (French and Mallon JJ).
[2]Memelink v Haines [2021] NZHC 1992 (Grice J).
[3]The applicants seek various subsidiary orders if the stay is granted, including requiring them to pursue the application under r 7.51 urgently.
The application for a stay is opposed by the court‑appointed receivers of the Link Trust No 1 on the basis that:
(a)There is no direct correlation between the foreshadowed r 7.51 High Court application and the applicants’ present application for leave to appeal to this Court. The present application for leave to appeal arises from the Court of Appeal’s two decisions.
(b)The High Court judgment was a summary judgment liability decision. It was not an interlocutory order.[4] Rule 7.51 therefore would be inapplicable.
(c)The applicants’ memorandum provides no details or facts relied upon to justify any application under r 7.51. Unless something new and highly material has arisen (which is not disclosed) any such application will have a very low prospect of success. Further, the applicants will likely be estopped from raising anything in the High Court that they should (or could) have raised in the Court of Appeal.[5]
(d)A stay of the application for leave to appeal will detrimentally affect the orderly progress of the trust’s court‑appointed receivership.
Our assessment
[4]They submit that it does not fall within the definition of interlocutory order under High Court Rules 2016, r 1.3.
[5]For example, based on principles of res judicata or the rule in Henderson v Henderson (1843) 3 Hare 100, 67 ER 313 (Ch).
We accept the submission of the receivers that there is no direct correlation between the application under r 7.51 and the proposed appeal to this Court. We also accept the submission that the applicants have provided no details of any matters relied on to justify any application under r 7.51.[6] In these circumstances a stay is not justified.
Timetable for submissions
[6]We do not need to comment on the other matters raised by the receivers.
The applicants have now filed submissions in relation to the application for leave. The submissions for the respondents are to be filed on or before 4 pm, 24 October 2024.
Result
The application for stay is dismissed.
The applicants must pay the respondents one set of costs of $2,500.
Solicitors:
J P Dallas, Wellington for Applicants
Gibson Sheat, Wellington for Respondents
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