BODY CORPORATE 68792 AND HARRY MEMELINK
[2023] NZHC 3850
•21 December 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-481
[2023] NZHC 3850
UNDER The Senior Courts Act 2016 IN THE MATTER OF
An application for a restraining order
BETWEEN
BODY CORPORATE 68792
Applicant
AND
HARRY MEMELINK
Respondent
Hearing: 6, 9 and 17 October 2023 Appearances:
J J Pietras and N L Donaldson for Applicant H Memelink self-represented for Respondent
J D Haig for receivers of Link Trust (No 1) (in receivership) for Interested Party
Judgment:
21 December 2023
JUDGMENT OF GRICE J
(Restraining order)
Table of Contents
Introduction[1]
Law [12]
Mr Memelink’s submissions [20]
Background [32]
First stage — threshold test [43]
Body corporate governance and levy litigation [46] Analysis — were proceedings in relation to the chairmanship issues totally without merit? [78]
BODY CORPORATE 68792 v MEMELINK [2023] NZHC 3850 [21 December 2023]
Claims against Mr Dewar [95]
Recusal application [98]
Receivership proceedings [102]
Proceedings related to the removal of the body corporate administrator [106]
Other proceedings [110]
Second stage — discretionary test [111]
Terms of order [130]
Restraining order [139]
Costs [140]
Introduction
[1] Mr Memelink has been involved in a large number of proceedings either personally or as trustee of his family trust, the Link Trust No 1 (the trust). He has been bankrupt since August 2018 and his trust has been in receivership since July 2022, with a stay operating on proceedings brought by or against the trust since December 2022. He has unsuccessfully applied to set aside his bankruptcy, opposed its continuation beyond the statutory three years and failed to have the receivership orders set aside either on appeal or pursuant to further applications filed by him.1
[2] Neither Mr Memelink’s bankruptcy, the receivership of his trust nor the stay of proceedings by the trustees has deterred Mr Memelink from filing various applications. An administrator under the Unit Titles Act 2010 was initially appointed to the applicant, Body Corporate 68792 (the body corporate), in 2015. Mr Memelink’s trust owned more than 50 per cent of the units in the body corporate. That administrator has been replaced by two further administrators. The current administrator,
1 Since this matter was heard, Mr Memelink’s bankruptcy has been extended for a further three years or until the trust receivership ends: Official Assignee v Memelink [2023] NZHC 3044 [bankruptcy extension decision]. See also Re Memelink HC Wellington CIV-2018-485-363, 28 August 2018 [bankruptcy decision]; Memelink v Collins & May Law [2020] NZCA 62 [unsuccessful appeal against bankruptcy decision]; Body Corporate 81012 v Memelink [2022] NZHC 1244 [receivership appointment decision]; Body Corporates 81012, 68792 & 378945 v Memelink [2022] NZHC 3307 [stay of proceedings decision]; Memelink v Body Corporate 81012 [2022] NZCA 333 [CA first refusal to stay receivership]; Memelink v Body Corporate 81012 [2022] NZCA 581 [CA second refusal to stay receivership]; and Body Corporate 81012 v Memelink [2023] NZHC 1749 [decision declining removal of receivers].
Mr Tony Gambitsis, brings the application on behalf of the applicant to restrain Mr Memelink from commencing or continuing civil proceedings relating to the conduct or of affairs of the body corporate.
[3] The applicant acknowledges that Mr Memelink has a right to access to justice. However, it submits that Mr Memelink sues people at the drop of a hat and despite having been made bankrupt and having had his entities placed into liquidation and receivership, nothing has slowed his continuous resort to unmeritorious litigation. In fact, the applicant says, insolvency events have only strengthened Mr Memelink’s resolve to sue anyone whom he believes has wronged him.
[4] The body corporate brings its application for an extended order under s 166(4) of the Senior Courts Act 2016. The application is made on the grounds that Mr Memelink has commenced two or more proceedings that were totally without merit, and it is in the interests of justice that an extended order be granted.2 The body corporate points to a number of proceedings brought by Mr Memelink which it says are totally without merit.
[5] The body corporate in its application seeks an extended order which restrains a party from commencing or continuing civil proceedings on a particular or related matter. Those matters are set out in the application as:
(b) granting an extended restraining order under section 166(4) of the Senior Courts Act 2016 preventing the Respondent (in any capacity) from commencing or continuing any proceeding relating to the conduct or affairs of Body Corporate 68792 (including but not limited to the legality of any levies and lease disputes).
[6] The body corporate also submits that there are exceptional circumstances to warrant making a restraining order for the maximum period available under the legislation, namely five years.
[7] Mr Memelink opposes the application. He submits that the application for an extended order against him, is intended to “gag” him and would be a gross miscarriage
2 Leave was granted for the application to be made by way of originating application on 28 August 2023 and timetabled with an application made by Mr Memelink and Ms Forster as trustees of the Link Trust No 1 to be set down for a two-hour hearing: Body Corporate 68792 v Memelink HC Wellington CIV-2022-485-802, 29 August 2023 (Minute of Harland J).
of justice. He submits his applications are “far from” being vexatious and without merit.
[8] The body corporate submits Mr Memelink’s submissions and affidavit do not address in any way the five litigation examples that it relies upon as cases totally without merit. It says that as such, he has not answered the claim. The body corporate says the “endless and relentless attacks Mr Memelink makes on the administrator, receivers and others” involve ongoing costs and expense.
[9] The receivers of the trust are not a party to the body corporate’s application and accordingly do not take a position in respect of it. Nevertheless, they submit that if a restraining order was made under s 166, the creditors of the trust in receivership would benefit, as Mr Memelink’s “continual litigation, … [which] has had the sole effect of eroding the pool of funds available to trust creditors (by driving up the receivers’ costs), would cease.”
[10] Mr Memelink also filed a notice requiring Mr Gambitsis to be available for cross-examination. He is the administrator of the body corporate applicant in this proceeding. Mr Gambitsis was made available and was cross-examined by Mr Memelink.
[11] Mr Memelink filed three affidavits, including annexures in the case of the affidavit of 6 October 2023. The affidavits were substantial.3
Law
[12] The restraint regime provides for three progressively stronger orders: the order may have a limited effect, an extended effect, or a general effect.4 An order made under s 166 restrains a party from commencing or continuing any proceedings of any type
3 Mr Memelink’s affidavits were also relied on in a proceeding he had brought for the removal of the court-appointed administrator of Body Corporate 68792 in the CIV 2023-485-802 proceedings. The affidavits were dated 26 June 2023, 2 October 2023 and 6 October 2023. Mr Memelink also filed memoranda dated 3 October 2023, 16 October 2023 and a further larger affidavit of 16 October 2023. Mr Memelink also handed up a number of photographs showing what appears to be office space. These were not otherwise referred to in the hearing.
4 Senior Courts Act 2016, s 166(2).
specified in the order without first obtaining the leave of the High Court.5 The party against whom a s 166 order is made may appeal against the order.6
[13]Section 166 of the Senior Courts Act sets out the effect of the orders:
166Judge may make order restricting commencement or continuation of proceeding
(1)A Judge of the High Court may make an order restricting a person from commencing or continuing a civil proceeding.
(2)The order may have—
(a)a limited effect (a limited order); or
(b)an extended effect (an extended order); or
(c)a general effect (a general order).
(3)A limited order restrains a party from commencing or continuing civil proceedings on a particular matter in a senior court, another court, or a tribunal.
(4)An extended order restrains a party from commencing or continuing civil proceedings on a particular or related matter in a senior court, another court, or a tribunal.
(5)A general order restrains a party from commencing or continuing civil proceedings in a senior court, another court, or a tribunal.
(6)Nothing in this section limits the court’s inherent power to control its own proceedings.
[14] A restraining order whether limited, extended, or general, has effect for a period of up to three years as specified by the Judge, but the Judge making it may specify a longer period (which must not exceed five years) if they are satisfied that there are exceptional circumstances justifying the longer period.7 Only the Attorney-General or a court on its own initiative may make a general order.8
[15]The grounds for making the order are set out at s 167 of the Act as follows:
167 Grounds for making section 166 order
5 Section 168(1).
6 Section 169(8).
7 Section 168(2).
8 Section 169(2)–(3).
(1)A Judge may make a limited order under section 166 if, in civil proceedings about the same matter in any court or tribunal, the Judge considers that at least 2 or more of the proceedings are or were totally without merit.
(2)A Judge may make an extended order under section 166 if, in at least 2 proceedings about any matter in any court or tribunal, the Judge considers that the proceedings are or were totally without merit.
(3)A Judge may make a general order if, in at least 2 proceedings about any matter in any court or tribunal, the Judge considers that the proceedings are or were totally without merit.
(4)In determining whether proceedings are or were totally without merit, the Judge may take into account the nature of any interlocutory applications, appeals, or criminal prosecutions involving the party to be restrained, but is not limited to those considerations.
(5)The proceedings concerned must be proceedings commenced or continued by the party to be restrained, whether against the same person or different persons.
(6)For the purpose of this section and sections 168 and 169, an appeal in a civil proceeding must be treated as part of that proceeding and not as a distinct proceeding.
[16] A “proceeding” is “any application to the Court for the exercise of the civil jurisdiction of the Court other than an interlocutory application”,9 but does not include appeals in a civil proceeding.10 The proceedings concerned must be proceedings commenced or continued by the party to be restrained, whether against the same person or different persons.11 A counterclaim is treated as a separate proceeding. Proceedings predating the coming into force of s 166 on 1 March 2017 may be considered.12
[17] Proceedings brought by the party to be restrained in a representative or fiduciary capacity may be taken into account.13 The reasoning behind this is that to restrict these provisions to persons acting in their personal capacity would limit their effectiveness in protecting those against whom meritless proceedings are brought.
9 High Court Rules 2016, r 1.3(1); and see Khatri v Tomar [2021] NZHC 3091 at [29].
10 Senior Courts Act, s 167(6).
11 Section 167(5).
12 Mawhinney v Auckland Council [2019] NZHC 299 at [140].
13 At [63]; and see McGechan on Procedure (online looseleaf ed, ThomsonReuters) at [SC167.03(2)], citing Heenan v Attorney-General [2011] NZCA 9, [2011] NZAR 200 at [23].
[18] “Totally without merit” means “bound to fail” and “hopeless”.14 To make an order under s 166, there is no requirement for “vexatiousness”.15 To meet the threshold, it is necessary that every cause of action pleaded is bound to fail.16 A proceeding will not be totally without merit if at least one of multiple causes of action has merit.17 In determining whether proceedings are or were totally without merit, the Judge may take into account the nature of any interlocutory applications, appeals, or criminal prosecutions involving the party to be restrained, but is not limited to those considerations.18
[19] There are three steps involved in determining whether to make a s 166 order.19 First the Court must decide whether there are at least two proceedings that are totally without merit. If this threshold is met, the Court then has a discretion to consider whether the order is appropriate. The Court may consider how those proceedings were conducted as well as any wider circumstances that weigh for or against an order being made. If the Court considers an order is appropriate, finally the Court must then determine the terms of the proposed order.
Mr Memelink’s submissions
[20] Mr Memelink’s submissions were confused, disorganised and repetitive. This matter was heard following an application by Mr Memelink to remove Mr Gambitsis as administrator of the body corporate, the applicant in these applications. Mr Memelink’s 75-page affidavit filed on the morning of the first day of the hearing and a 115-page affidavit filed the evening before related to both matters. He was entitled to reply to some material filed by the administrator on 4 October 2023. Mr Memelink in his submissions continually came back to the same issues of disputes with the body corporate, the invalidity of the receivership and criticism of officials, advisers and judges.
14 Mawhinney v Auckland Council [2021] NZCA 144 at [64].
15 At [58] and [70].
16 Mao v Buddle Findlay [2022] NZHC 2885 at [32].
17 Mawhinney v Auckland Council (CA), above n 14, at [60].
18 Senior Courts Act, s 167(4).
19 AB v CD [2023] NZHC 610 at [24].
[21] The administrator filed further material correcting an issue in relation to whether or not the order appointing Mr Gambitsis as the administrator of the body corporate had been sealed, as well as further documents concerning the Tenancy Tribunal litigation, at my direction. Mr Memelink responded to those memoranda and filed further affidavits and submissions before the hearing continued on 17 October 2023. He also cross-examined Mr Gambitsis.
[22]In his statement of defence Mr Memelink said:
(a)Mr Gambitsis has made “libellous and untrue statements” and has no legal standing to bring the proceeding as he is not legally the administrator of the body corporate.
(b)Mr Dewar and his firm, including Mr Pietras, are conflicted and should withdraw from representing Mr Gambitsis and the body corporate because they are only “defending crimes committed by BC68792 officers [and] are involved in the crimes themselves”. Mr Memelink says the application is an abuse of process by the administrator and lawyers, who are in gross breach of their duties and lawyers’ codes of conduct and “are attempting to stop the investigation of the continuous fraud.” Mr Memelink makes allegations, which he acknowledges are serious, against them all of “racketeering, deceit and forgery”.
(c)The application is a gross abuse of legal process principles of justice, court procedures and the rights of the respondent.
[23]Mr Memelink further pleads:
It will be unfair and incorrect to stop Mr Memelink from doing any further cases let alone cases that occur in play that have been set aside which is a Breach of the duties of the administrator, who technically is not as any valid position and all court cases are technically Void that he put in place.
[24] Mr Memelink pleads he has an appeal and a stay application on foot for overturning the receivership of his family trust, the Link Trust No 1, and the
receivership is based on the fraudulent levies charged by the body corporate.20 He seeks that the court orders past and present be investigated, voided and reversed. Mr Memelink also seeks “consequential and punitive damages” to be paid to him by the administrator and the applicant’s law firm.
[25]Mr Memelink made the following specific submissions:
(a)Mr Dewar and his firm were hopelessly conflicted and should not be acting for Body Corporate 68792. Mr Dewar and Mr Pietras should “recuse” themselves.
(b)Mr Gambitsis, the administrator commits perjury in his affidavit because he said he was a principal in the firm, “Gambitsis Crombie Ltd, Chartered Accountants of Lower Hutt (now called GCOL).” Mr Memelink says in fact the two firms Gambitsis Crombie Ltd and GCOL are different companies rather than the firm having just changed its name accordingly Mr Gambitsis has perjured himself.
(c)It is Mr Gambitsis who has caused the body corporate issues by not addressing the issues when he was appointed and Mr Gambitsis has failed to comply with the Unit Titles Act. In particular, Mr Memelink submitted that Mr Gambitsis’ failed to register his appointment on the body corporate title, therefore everything he has done on behalf of the body corporate is void and invalid since his appointment. If the body corporate issues had been properly addressed Mr Memelink or his trust would not have owed the levies which were struck without authority and therefore he would not have been bankrupted nor would Link No 1 Trust have been put into receivership.
[26] Mr Memelink focused in his submissions and evidence on the disputes concerning the body corporate’s levies, its governance and his disputes with, in particular, the administrator of the body corporate, Mr Gambitsis. Mr Memelink in his
20 The application for further stay of the receivership orders and extension of time to appeal were dismissed shortly before the delivery of this judgment: Memelink v Body Corporate 81012 [2023] NZCA 639 [CA third refusal to stay receivership].
memorandum dated 28 August 2023 also said he was forming criminal charges against Mr Gambitsis and other former body corporate officers It appears that the proposed criminal charges were not accepted for filing in the District Court. I refer to the judgment of that court rejecting the charges for filing below.
[27] The specific issues that Mr Memelink raised in his submissions and statement of defence are not relevant to this application.
[28] In relation to the allegation that Mr Dewar and his firm should withdraw because they were conflicted, there was no evidence of any specific disqualifying conflict. In any event, the allegation is not relevant to the merits of this application.
[29] Apart from the fact that the allegation of perjury in relation to Mr Gambitsis’ description of his firm and its predecessor has no rational connection with the present proceeding, the description Mr Gambitsis gives in his affidavit is a simple way of indicating his present firm is a predecessor of the firm named in brackets. Even if the description is technically inaccurate, the statement alone would not amount to perjury. The allegation is irrelevant to this application.
[30] The reason that Mr Memelink says that Mr Gambitsis’ appointment was illegal is that the administrator failed to register the notice of his appointment at the time he was appointed replacement administrator. The predecessor administrators had registered the required notice, and Mr Gambitsis’ lawyer had registered an address for service, sometime after the appointment. The failure to file the notice of appointment was not a matter which vitiated the appointment, but rather a failure to file notice of the appointment. The application for removal of Mr Gambitsis as administrator of Body Corporate 68792 was dismissed.21 Even if Mr Gambitsis had been removed as administrator, his removal would not have avoided the steps he had taken as administrator.
21 Body Corporate 68792 v Memelink [2023] NZHC 3637 [decision declining removal of court- appointed administrator].
[31] Mr Memelink repeats in his submissions his historical disputes with the body corporate which have all be determined and to which I refer in more detail below. Mr Memelink is seeking to relitigate them in this proceeding.
Background
[32] Some detail as to the background of the various proceedings is necessary in order to describe why the proceedings that I have identified as qualifying are totally without merit and illustrate the manner in which Mr Memelink conducts litigation. It is Mr Memelink either personally or through his related entities, in particular his family trust of which he is a trustee, the Link Trust No 1, who is the driver of the litigation. His trustees had little or no control over the decisions made for the trust including in relation to litigation.22 I refer to the litigant as Mr Memelink regardless of the capacity in which he is acting, for convenience.
[33] Mr Memelink has been in dispute with the body corporate since approximately 2005. The history of litigation involving Mr Memelink, the body corporate and Mr Memelink’s family trust, the Link Trust No 1, is set out in detail in a judgment dismissing Mr Memelink’ s application for leave to remove or replace the receivers and related applications.23
[34] Mr Gambitsis was appointed by order of the Court with the consent of the unit holders of the body corporate on 5 October 2017.24 He was the successor of two earlier administrators. First was Mr Greenwood, who was appointed by the High Court on 18 March 2015.25 He was replaced by Mr Naylor, who was appointed on 9 September 2016.26
[35] Link Trust No 1 was the majority unit owner and shareholder in the body corporate at the time. The disputes arose due to the failure of the Trust to pay body corporate levies. Mr Memelink claimed that monies were owing to him and his
22 Receivership appointment decision, above n 1.
23 Decision declining removal of receivers, above n 1.
24 Body Corporate 68792 v Synergy Enterprises Ltd HC Te Whanganui-a-Tara | Wellington CIV-2015-485-000 202, 5 Ōketopa | October 2017.
25 Body Corporate 68792 v Memelink [2015] NZHC 519.
26 Body Corporate 68792 v Memelink [2016] NZHC 2146.
Trust for various goods and services which Mr Memelink had undertaken for the benefit of the body corporate which he said had accrued over some years.27 The Trust’s claims were struck out by Cooke J in April 2022 due to the substantial delays in prosecuting the proceedings by Mr Memelink and the failure to comply with a number of directions. In addition, Cooke J found that Mr Memelink had reached an agreement not to pursue his claims in the Court and had elected “to pursue alternative remedies”. The alternative remedy was set out in the agreement that if the outcome of the report by Deloitte was that levies were owing and if Mr Gambitsis was appointed as administrator of the body corporate the proceedings would be discontinued.28 The Judge noted the audit report in question was provided in October 2018, two years before steps were taken to revive the proceeding which had resulted in the strike out application. Cooke J commented that Mr Memelink would have had to have acted very promptly if he had wanted to advance the claim notwithstanding his earlier agreement and he had not done so.29 The Court of Appeal dismissed the appeal against the striking out of the claims.30
[36] Mr Memelink was adjudicated bankrupt on 28 August 2018. The effective date of the bankruptcy was 6 September 2022 — the date on which the Official Assignee had received enough information to satisfy the requirements of the bankrupt to supply a statement of assets. Mr Memelink remains bankrupt. He was publicly examined on the application of the Official Assignee on 24 April 2023. An application by the Official Assignee opposing Mr Memelink’s automatic discharge from bankruptcy has been heard and the decision was awaited at the time of this hearing. By way of background only I note that judgment has been delivered and the outcome is that orders were made that Mr Memelink’s bankruptcy continues for a further three years or until the termination of the Trust receivership whichever is the earlier.31
[37] Receivers were appointed by the Court to Mr Memelink’s family trust, the Link Trust No 1 to realise the assets on behalf of the creditors on 31 May 2022.32
27 Decision declining removal of receivers, above n 1, at [27].
28 Memelink v Body Corporate 68792 [2021] NZHC 835 [strike out of levies claim] at [16]–[21].
29 At [21].
30 Memelink v Body Corporate 68792 [2021] NZCA 640 [CA decision upholding strike out of levies claim].
31 Bankruptcy extension decision, above n 1. The decision is subject to an appeal.
32 Receivership appointment decision, above n 1.
The receivership orders were varied by Churchman J in December 2022.33 The varied orders included a stay of all proceedings by or against the trust (in the name of the trustees) for the period of the receivership unless the receivers agreed or the Court otherwise ordered.34 Mr Memelink unsuccessfully appealed the appointment of the receivers to the Court of Appeal.35
[38] Churchman J in his judgment noted his reasons for the appointment of the receivers included concerns about the solvency of the trust,36 largely caused by Mr Memelink’s failure to pay overdue levies and other debts and Mr Memelink’s behaviour and disruptive conduct causing the body corporate to be dysfunctional.37
[39] The business affairs of Mr Memelink and his trust were inextricably linked. This significantly hampered the Official Assignee in progressing the administration of the bankrupt’s estate. Due to the manner in which Mr Memelink kept the records of his own business affairs and those of his trust and the lack of information as to whether he was acting on his own behalf or on behalf of the trust, many claims in the bankruptcy were claims which should have been properly brought against the trust. As a result, the Official Assignee obtained orders for reimbursement out of the trust under the trustee indemnity for expenses and claims against the bankrupt as trustee of the trust, as well as costs in the administration of the bankrupt to 5 April 2022 of
$665,534.74. This included $450,000 for legal fees and costs of insurance.38
[40] The Court of Appeal refused to stay the application appointing the receivers in a first application on 27 July 2022 and dismissed a second application for a stay on 29 November 2022.39
[41] Following the appointment of the receivers, Mr Memelink filed various applications seeking orders to remove or replace the receivers. These were dealt with
33 Stay of proceedings decision, above n 1.
34 Body Corporate 81012 v Memelink HC Wellington CIV-2021-485-419, 19 December 2022 (sealed interlocutory order) [sealed interlocutory order] at [1(q)].
35 CA second refusal to stay receivership, above n 1.
36 Receivership appointment decision, above n 1, at [78].
37 At [57]–[60].
38 At [133] and [153].
39 CA first refusal to stay receivership, above n 1; and CA second refusal to stay receivership, above n 1.
together, as an application for leave to proceed with those applications. The history of matters leading to the receivership is set out in detail in that judgment. The application for leave to apply to remove the receivers or vary the receivership orders to enable Mr Memelink more control was dismissed.40 It was noted that the matters raised in support of Mr Memelink’s applications were largely a recasting of disputes that had already been the subject of final determinations of this Court and the Court of Appeal and could not be revisited. The application failed on the basis that there was no serious question to be tried.41
[42] I now turn to consider the proceedings which the applicant has identified as being commenced or continued by Mr Memelink (personally or as a trustee) that potentially qualify as being “totally without merit”.
First stage — threshold test
[43] The body corporate submits the threshold for making an extended order against Mr Memelink, namely that Mr Memelink has commenced two or more proceedings that were totally without merit, has been made out. In support of this it refers to a number of proceedings, as follows:
(a)Chairmanship litigation;42
(b)Proceedings relating to body corporate levies;43
(c)Claim against Mr Dewar, as a lawyer;44
(d)Trustees of the Link Trust No 1 v Body Corporate 68792;45
40 Decision declining removal of receivers, above n 1.
41 At [115].
42 Body Corporate 68792v Synergy Enterprises Ltd [2016] NZHC 256 [approval of body corporate administrator’s decisions]; Memelink v Martens [2016] NZHC 1285 [decision striking out parties and chairmanship litigation] (and related litigation); and Memelink v Body Corporate 68792 [2019] NZTT Wellington 9000347 [Tenancy Tribunal decision].
43 Strike out of levies claim, above n 28; and CA decision upholding strike out of levies claim, above n 30.
44 Memelink v Dewar [2017] NZHC 446 [strike out of claim and indemnity costs decision].
45 Trustees of the Link Trust No 1 v Body Corporate 68792 [2022] NZHC 151.
(e)Memelink v Body Corporate 68792;46
(f)Recusal application seeking the “blanket” recusal of a judge;47
(g)Litigation over receivership of Link Trust No 1;48
(h)Insurance litigation and counterclaim proceedings seeking the removal of Mr Gambitsis as administrator of Body Corporate 68792;49 and
(i)Caveat application.50
[44] The Court of Appeal in Mawhinney v Auckland Council set out the approach to the threshold test as follows:51
[64] … The correctness or otherwise of the judgments which are the culmination of the candidate proceedings is not the issue. The proper focus is whether the proceedings themselves were so lacking in merit that they were bound to fail.
[65] However as Maurice Kay LJ observed in Grace, a Judge must be confident that the proceeding was truly bound to fail. Such a conclusion may be possible simply from a consideration of a finding in the judgment in a proceeding where, for example, the basis of the finding is issue estoppel. However in other cases attaining such a state of confidence may necessitate careful consideration of the factual and legal bases for the proceeding. The extent of the inquiry required to be undertaken will be necessarily case-dependent.
[66] Section 167 makes clear that it is the Judge determining the issue whether an order should be made who is required to “consider” whether the proceedings are totally without merit. Although in all likelihood that Judge will carefully review the reasoning in the judgments given in the relevant proceedings, the question whether in any particular proceeding the threshold is established is for the consideration of the Judge contemplating making the order.
46 Strike out of levies claim, above n 43.
47 Body Corporates 81012, 68792 and 378945 v Memelink [2023] NZHC 835 [recusal decision].
48 Receivership appointment decision, above n 1; CA first refusal to stay receivership, above n 1; and decision declining removal of receivers, above n 1.
49 Body Corporate 68792 v Memelink HC Wellington CIV-2022-485-802. An application by Mr Memelink filed in these proceedings was heard immediately before the present application.
50 Body Corporate 68792 v Memelink [2022] NZHC 3498 [caveat application].
51 Mawhinney v Auckland Council (CA), above n 14 (footnotes omitted).
[45] The judgments to be analysed cover a number of interrelated topics largely concerning Mr Memelinks disputes with the body corporate and persons associated with them. For convenience I deal with them under the following headings:
(a)body corporate governance and levy litigation — this relates to Mr Memelink’s challenges to the governance of the body corporate as well as the disputed levies;
(b)claims against Mr Dewar;
(c)recusal application;
(d)receivership proceedings — this relates to the receivership of Mr Memelink’s family trust, the Link Trust No 1;
(e)proceedings related to the removal of the administrator of the body corporate; and
(f)other proceedings
Body corporate governance and levy litigation
[46] This related to Mr Memelink’s disputes with the body corporate. Mr Memelink made a number of attempts to persuade the Tenancy Tribunal and this Court that he had been elected to the office of chairman of the body corporate in October 2014.
[47] Mr Memelink, as trustee for Link Trust No 1, lodged claims in the High Court against various body corporate members and a lawyer acting for the body corporate. The claims were set out in a first amended statement of claim dated 15 August 2016.52 The pleadings alleged three causes of action.
(a)The first was “Breach of Duties of Care by the Defendants” and pleaded a failure by the defendants to account to the plaintiff in respect of special levies as well as breaching the Unit Titles Act and various related
52 As Memelink v Martens HC Wellington CIV 2016-485-141.
regulations and rules. The relief sought included the return of levies paid and a reconciliation of levies. An order was sought that the illegal chairmen (the first and second defendants) be removed from the chairmanship and committee membership of the body corporate.
(b)The second cause of action was headed “Validity of Voting Rights at BC68792 Meetings”. This pleaded that the defendants had “malevolently prejudiced and hijacked the voting rights of the plaintiffs” and “aided and abetted the defendant” in the tort of conversion of the voting rights, which was said to be akin to the crime of conversion pursuant to s 226 of the Crimes Act 1961.
(c)The third cause of action was headed “Right of Chairmanship”. This alleged that the defendant body corporate members had incorrectly acted as chairperson since 2007/2008 and created an illegal “joint chairmanship of defendants in 2013 to 2014”.
(d)The relief sought under the second and third heads of claim was similar. Among other remedies they sought declarations that voting was invalid, and the administrator, then John Greenwood, be removed. Damages were also sought for stress and costs incurred.
[48] In a judgment dated 14 June 2016, Brown J noted that surprisingly the body corporate had not been named as a party in the statement of claim (proceeding CIV 414).53 The Judge had earlier in a minute recorded his preliminary view that the statement of claim might be viewed as a collateral attack on the order of the Court of 28 July 2015 appointing an administrator to the body corporate and that it may be appropriate to make an order staying the proceeding for the duration of the administration until the appointment was terminated.54
[49] Brown J noted the statement of claim was “more evidence than fact,” and commented that:55
53 Decision striking out parties and chairmanship litigation, above n 42, at [5].
54 At [8].
55 At [10].
… It resorts to somewhat inflammatory language, alleging, for example, incompetent manipulation of the voting eligibility and manipulative bias. It also states that the defendants have “malevolently prejudiced and hijacked the BC 68792 voting rights of the plaintiff”.
[50] Nevertheless, his Honour granted Mr Memelink’s application to join the body corporate and Link Trust No 1 as first and second defendant respectively.56 The Court granted the applications for striking out the claims against the first to third defendants and ordered costs against Mr Memelink on a 2B basis.57
[51] A first amended statement of claim in the proceeding dated 5 August 2016 naming the body corporate as the defendant was then filed. It largely repeated the causes of action set out in the original statement of claim although modified the language used. The relief sought was similar to that sought in the original.
[52] Mr Memelink then filed applications in the Tenancy Tribunal which almost mirrored the claims as pleaded in the first statement of claim, the subject of the judgment of Brown J dated 14 June 2016. As noted, Brown J had struck out the claim against the defendants, Mr Martens and Mr McKernan (who were body corporate members) and Mr Dewar, the body corporate lawyer, but Mr Memelink included claims against them in the Tribunal claim.
[53] The Tenancy Tribunal application was filed, according to the applicant’s records, in October 2016. The application was filed by Mr Memelink as the “owner representative of 6 units within BC 68792, being a head trustee of Link Trust No 1”. On the application, in a box headed “Why are you asking the tribunal to do this?”, the following appears: “Point of Law and BC Administration refused to show integrity High Court wants this dealt with in the Tenancy Tribunal.”
[54] Attached to the application is a document which set out the claim. It was headed “In the Matter Fraudulent & illegal voting and illegal management of BC 68792”. That document runs to 16 pages. It appears to be modelled on the initial statement of claim that Brown J had struck out against the first to third defendants. The persons named in the application who had been the defendants in the struck out
56 At [36].
57 At [40] and [44].
claim were Mr Martens, the owner of the unit and the co-chairman of the body corporate, Mr McKernan, a unit owner and co-chairman, and Mr Dewar, the solicitor for the body corporate. The fourth defendant in the High Court proceedings was Administrate (2009) Ltd. A claim is also made in the Tenancy Tribunal claim against Fiona Gillespie, who was the person carrying out the administration of the body corporate for the fourth defendant.
[55] Under a heading “First Cause of Action – Breach of Duties of Care by the BC68792 Officers”, breaches by the defendants of various obligations, including under the Unit Titles Act and related rules and regulations, are pleaded against Mr Martens and Mr McKernan as “illegal chairmen”. The relief sought includes the cancellation and repayment/credit of “all unauthorised and unapproved levy increases” and investigations into the levies and other financial matters, as well as the removal of the body corporate bank account signatories/authorities and freezing of the bank accounts, as well as the handing over of records and related documents “to a newly appointed person or firm” chosen by body corporate members. The costs of the proceeding and all body corporate-related proceedings are also sought.
[56] Under the heading “Second Cause Of Action – Validity of Voting Rights at BC68792 Meetings”, the claim repeats the allegations and says Mr Martens, Mr McKernan and Mr Dewar “have malevolently prejudiced and hijacked the [body corporate] voting rights of the plaintiff” and “ultimately hijacked the plaintiff’s right of chairmanship and vote by illegally voting in the March 2015 EGM”. It then seeks declarations as to the validity of voting at the EGM of 21 October 2014, that the role of Mr Greenwood as administrator of the body corporate be properly investigated, and that any costs and damages in relation to his role as administrator of the body corporate be “assessed and apportioned as applicable” against Mr Martens, Mr McKernan, Mr Dewar and Ms Gillespie. It also seeks that Mr Dewar be removed from any legal role or representation of the body corporate.
[57] The third cause of action in the application was headed up “Right of Chairmanship”. It pleads that Mr Martens, Mr McKernan and Mr Dewar have “done everything within their power to block, change, hijack and override Mr Memelink’s “right of chairmanship”. It pleads that Mr Martens has acted as chairman of the
body corporate without proper authorisation and approval of the body corporate. The relief sought under this cause of action includes various declarations as to the validity or invalidity of the voting at various AGMs and EGMs, which would have the result of Mr Memelink replacing the existing co-chairs of the body corporate, as well as the removal of Mr Dewar (legal representative) and Mr John Greenwood (body corporate administrator) from their roles in relation to the body corporate.
[58] While some words and phrases have been changed, the substance of the original statement of claim in the High Court proceedings is repeated in the claim lodged in the Tenancy Tribunal.
[59] Following the filing of the Tenancy Tribunal claim, but before the claim was heard, the corporate trustee of the trust, Lynx Trustees Ltd, was placed into liquidation on 10 September 2019 by order of the High Court on the application of the body corporate. Mr Bassett-Burr, Mr Memelink’s adviser and brother-in-law, was a director of Lynx Trustees Ltd. In the Tenancy Tribunal decision delivered in December 2019 dismissing Mr Memelink’s application, the adjudicator referred to the High Court decision which dismissed a challenge to the statutory demand. It is therefore necessary to refer to that decision in some detail.
[60] The application by Lynx Trustees Ltd to set aside the statutory demand by the body corporate for outstanding levies came before Simon France J. In a judgment dated 2 July 2019 dismissing the application (the Lynx Trustees decision), his Honour noted that an administrator had been appointed to the body corporate on 18 March 2015.58 Simon France J noted that since then there had been three consecutive administrators, and that previous judgments recorded the “onerous nature of the task” due to what the Judge described as the “obstructive and unreasonable conduct” of persons associated with the applicant.59
[61] Simon France J recorded that Mr Memelink had supported the appointment of Mr Gambitsis as administrator. Mr Memelink had agreed to be bound by the outcome of an audit and if there were found to be outstanding levies, then he would pay those
58 Lynx Trustees Ltd v Body Corporate 68792 [2019] NZHC 1521 [the Lynx Trustees decision].
59 At [4].
promptly at the conclusion of the audit process.60 The Judge noted an audit had been done by Deloitte and the statutory demand was based on the Deloitte figures. Mr Memelink argued that the Deloitte report did not take into account various matters, there had been mismanagement, there had been a failure to obtain a building warrant of fitness and there was an issue over voting rights (which was not pursued at the hearing). The Judge further recorded that the affidavit of Mr Bassett-Burr in support of the application to set aside the statutory demand did not progress beyond generalisations and assertions.61 His Honour concluded that the allegations of poor management of the body corporate did not afford a basis to either dispute the money owing nor suggest there was a reasonably arguable counterclaim.62 The Judge went on to note that at the hearing emphasis had been placed by the applicant on the unresolved High Court claim by the trustees of Link Trust No 1 against the body corporate, (the CIV 141 proceedings). His Honour noted a fourth amended statement of claim in that proceeding had been filed on 30 May 2017. Simon France J said that Mr Memelink had indicated that the appointment of the administrator and the undertaking of an audit would bring those proceedings to an end, but nothing had happened on those proceedings for two years. The Judge concluded:
[14] Section 124(2) of the Unit Titles Act 2010 makes unpaid levies recoverable as a debt. The Deloitte report provides an independent audit to which the applicant agreed to be bound, and which identifies levies due. The applicant has not advanced any credible basis on which the court can conclude there is a substantial dispute as to the money being owed. In particular, the affidavit of Mr Bassett-Burr makes claim but provides no supporting material. By contrast the Deloitte report sets out its processes and the material relied upon to calculate on a consistent basis the sums due from each unit holder.
[62] The application to set the statutory demand aside was dismissed on the basis that there was “insufficient material to suggest there [was] a reasonably arguable substantial dispute with the statutory demand.”63
[63] The Tenancy Tribunal decision on the application was dismissed on 21 December 2019. The Tenancy Tribunal adjudicator noted that Mr Memelink had sought a declaration from the Tribunal that he “is, or was, eligible to be the rightful
60 At [5].
61 At [12].
62 At [13].
63 At [15].
chairman of the Body Corporate since a meeting was held to vote in the chairman in November 2014.”64
[64] The Tribunal referred to the Lynx Trustees decision of Simon France J and said the issues raised in that case could not be pursued in a different forum.65 It noted that Simon France J had concluded that Mr Memelink had agreed to be bound by the audit of the body corporate’s levy situation. Mr Memelink, the decision recorded, had also undertaken that on the appointment of an administrator (ultimately Mr Gambitsis), he would bring those proceedings to an end.66
[65] The Tribunal adjudicator noted that Mr Memelink was not simply seeking a declaration for the Tribunal, but that when the adjudicator had queried his motivation, “he was very clear that he wants to claim the refund of past levies and other amounts of around $500,000.00 from the Body Corporate which he accuses of fraudulent dealings.”67 The Tribunal noted that the real motivation behind the claim was to seek an amount well beyond the Tribunal’s jurisdiction. The adjudicator in the decision queried why Mr Memelink did not pursue the issue of voting rights and allegations of fraud and mismanagement in the High Court proceedings.68 The Tribunal noted it was artificial to focus on the one issue (whether Mr Memelink should have been appointed chairman) when there were far more complex issues flowing from that which fell outside the Tribunal’s jurisdiction.69
[66] The Tribunal said that the claims of mismanagement of the body corporate and the issue of voting rights were before the High Court and had been dealt with by that court so could not “be pursued again in a different forum when a higher Court has decided them or otherwise dealt with them.”70 Mr Memelink had apparently argued that the voting rights had not been pursued at the hearing in the High Court. The
64 Tenancy Tribunal decision, above n 42, at [2].
65 At [16].
66 At [16], citing the Lynx Trustees decision, above n 58, at [6].
67 At [16].
68 At [16].
69 At [16].
70 At [16].
Tribunal said the fact that the issue was not pursued there did not mean it could be pursued in the Tribunal.71
[67] The Tribunal also rejected Mr Memelink’s submission that the High Court had directed the Tribunal to make a decision on the issue of voting rights. The adjudicator commented that at best there might have been a general judicial comment that the Tribunal had jurisdiction to hear disputes arising from bodies corporate, which was correct, but that “the substance of the dispute is determinative of the Tribunals’ jurisdiction.”72 The Tribunal also noted that Mr Memelink had sought to be appointed chairman by way of declaration by the Tribunal, but the body corporate was in the hands of an administrator. The adjudicator said that it was not possible to “wind back the clock” and to pretend the later insolvency actions had not occurred or that the High Court decisions had not been made.73 The adjudicator concluded by saying:74
Essentially, Mr Memelink is seeking the declaration as a way to relitigate matters arising from what he says is financial management resulting in losses of around $500,000.00. His motivation is to breathe life into the litigation of those alleged losses. Aside from the fact that the amount of his dispute well exceeds the Tribunal’s jurisdiction, the substantive claim has been considered and rejected by the High Court. It is artificial to seek a declaration from the Tribunal about the voting for an appointment of the chairman when the real dispute concerns a civil claim that has been litigated in the High Court. To use a medical simile, Mr Memelink is trying to breathe life into a body (a corporate one) that is almost dead and well beyond resuscitation. The declaration he seeks is not one the Tribunal can make. Nor would it serve any purpose.
[68]Mr Memelink’s Tenancy Tribunal application was dismissed.75
[69] Mr Memelink sought a rehearing of the order dismissing the claim. The adjudicator concluded that Mr Memelink had failed to establish the grounds for a rehearing.76 The adjudicator said:
[7] Mr Memelink has failed to establish the grounds for a hearing. He is simply unhappy with the outcome of this application. He does not accept the Tribunal’s findings. A rehearing is not granted simply because a party is
71 At [16].
72 At [16].
73 At [16].
74 At [16].
75 At [17].
76 Memelink v Body Corporate 68792 [2020] NZTT Wellington 9000347 [Tenancy Tribunal rehearing decision].
unhappy with the result. The correct approach is for the unhappy party to file an appeal.
[70]The Tribunal further recorded that:
[12] Mr Memelink noted that the dispute had been live for 5 years. He had paid a large filing fee and had not received the result expected. He had been caught in a perfect storm involving conspiracies by lawyers all aimed at “knocking him out”.
[71] Mr Memelink also argued at the application for rehearing that there was a power imbalance involved between him and the lawyers involved in the many proceedings surrounding the body corporate, and pointed to the fact he had dyslexia and had suffered recent bereavements. The Tribunal said that Mr Memelink:77
… obviously believes that he has been the subject of a grave miscarriage of justice in the form of a concerted conspiracy against him played out in the many proceedings his involvement with this Body Corporate has generated …
[72] Mr Memelink appealed to the District Court. Judge Tompkins dismissed the appeal on the basis that there was no evidence of procedural or substantive irregularity which might justify appellate interference.78 The Judge said that the overriding and determinative consideration was that the matters that Mr Memelink had pursued both before the Tribunal and on appeal were moot.79 The Judge said that given the factual and legal events that had transpired since the body corporate was in administration the declaration would be of no effect. He concluded that for the Court to make the declaration sought would amount to “an abuse of the process of the Court by Mr Memelink”.80 The Judge went on to say:81
… given the essential correctness of the decision under appeal and for the reasons set out in that decision, it is important that this aspect of Mr Memelink’s multifaceted litigation relating to this Body Corporate should be brought to an end now.
[73] Mr Memelink appealed to the High Court. In his notice of appeal, he sought a declaratory judgment that “the voting that took place at a meeting in November 2014”
77 At [18].
78 Memelink v Body Corporate 68792 [2021] NZDC 11664 at [10].
79 At [13].
80 At [15].
81 At [16].
did not comply with the body corporate rules or that the matter be remitted back to the Tenancy Tribunal for a rehearing.
[74]The High Court dismissed the appeal on 10 February 2022.82 Cooke J said:
[18] … In the present case [the Tribunal] concluded that the matters raised by Mr Memelink had been overtaken by other events, and that they had been the subject of extensive litigation between the parties in the High Court which had been determined against Mr Memelink. It held that the declaration sought would not serve any purpose. The District Court summarised this as a finding that the issues raised by Mr Memelink were moot and amounted to an abuse of process.
[19] Those conclusions seem to me to be correct for two essential reasons.
[20] First, the Tribunal proceeded in the manner required of it in dismissing a claim on this basis because it no longer had any practical significance for the participants. It is not the role of the Tribunal to make declarations on matters that have no such significance. Rather it must address disputes between them, and it must do so in light of both the principles of law and the substantial merits and justice of the case. If upholding a claim is not consistent with the substantial merits and justice of a case, and it does not resolve a real and practical dispute between the parties, then it would not be appropriate for the Tribunal to grant the relief sought. To do so would be unfair and unjust to the other parties to the suggested dispute.
[21] I also conclude that the Tribunal’s decision was properly made in the present case. As both the Tribunal and the District Court have held the events that have transpired in the seven years since the 2014 meeting mean that there is no practical utility in the Tribunal now seeking to rule on that meeting. The Body Corporate is essentially insolvent and an administrator has been appointed. Mr Memelink is bankrupt. If the Tribunal were to declare that he had been properly elected Chair more than seven years ago that would not make him the Chair now. Such a declaration would have no utility. To expect the respondents to engage with re-litigating such an historic matter would be unjust, and procedurally unfair.
[22] Moreover Mr Memelink’s contentions are part of his wider complaints which have been the subject to his High Court proceedings. I struck out those proceedings by judgment dated 20 April 2021 under r 15.2 of the High Court Rules 2016 on the basis that there had been an inordinate delay in the progress of the proceeding by Mr Memelink, the delay was inexcusable, the defendants had suffered serious prejudice as a consequence, and that it was not in the overall interests of justice to allow the case to proceed.83 By judgment dated 2 December 2021 the Court of Appeal
82 Trustees of the Link Trust No 1 v Body Corporate 68792, above n 45.
83 Strike out of levies claim, above n 28.
dismissed an appeal from that judgment.84 I note that the first paragraph of the Court of Appeal’s judgment refers to Mr Memelink’s contention that he had been elected the Chair of the Body Corporate at the 2014 meeting. So to the extent that Mr Memelink wished to use a decision of the Tribunal to re-open these issues that avenue has effectively been removed.
[75] The High Court concluded that the Tribunal had properly exercised its discretion in dismissing the claim and there was no error of law in the District Court decision upholding the Tribunal’s decision.85 The Court agreed with the conclusions of the Tribunal in its assessment of the agreement Mr Memelink had entered that he would not pursue the proceeding.86 The Court noted that the District Court decision had been based on the independent conclusion that the proceedings had no practical utility and were “effectively an abuse of process”.87
[76] The CIV 141 proceedings had been struck out by Cooke J following an application brought by the body corporate.88 His Honour noted the history of the proceedings. He said that agreement had been reached between Mr Memelink and the body corporate to the effect that the proceedings would not be continued on the basis that Mr Memelink had supported the appointment of Mr Gambitsis and had agreed to be bound by the result of an audit. The Judge referred to Mr Memelink attributing the delays in pursuing the claim to his solicitor, his bankruptcy and the liquidation of Lynx Trustees Ltd. The Judge noted Mr Memelink had elected to have certain issues in relation to the levies addressed in the bankruptcy and liquidation of the former trustee of the Trust (Lynx Trustees Ltd (in liq)). That state of affairs, the Judge said, underscored that challenges to levies and spending decisions by a body corporate would need to have been brought and determined promptly.89 His Honour went on to say that as the debt in question had been confirmed in the bankruptcy proceeding, “[t]o suggest that Mr Memelink can now reargue the same matters in this proceeding against all this background may well involve an abuse of process.”90 The Court noted that the proceeding had been directed at historic issues, notwithstanding that the most recently formulated fourth amended statement of claim made allegations about the
84 CA decision upholding strike out of levies claim, above n 30.
85 Trustees of the Link Trust No 1 v Body Corporate 68792, above n 45, at [24].
86 At [31].
87 At [31].
88 Strike out of levies claim, above n 28.
89 At [25].
90 At [25].
then present circumstances. The Judge noted that the proceeding must be struck out because it had not been prosecuted appropriately.91 He noted that he did not need to address the alternative grounds that the proceeding was an abuse of process under r 15.1 of the High Court Rules, although he said “I note that that may be an alternative way of describing the reasons why the strike out application is successful.”92
[77] The judgment striking out the proceeding went on appeal.93 The Court of Appeal referred to the complex history of the matter. It noted that the proceeding had its genesis in complaints raised concerning the amounts levied against the unit titles and mismanagement of the body corporate. The Court of Appeal said that the body corporate would be seriously prejudiced in trying to respond to the claims being made by Mr Memelink.94 It recorded the agreement by Mr Memelink that if Mr Gambitsis was appointed administrator of the body corporate, Mr Memelink agreed to be bound by the outcome of the audit and to discontinue the claim against the body corporate. The Court of Appeal noted that the Deloitte report was released on 19 October 2018 and that Mr Memelink now argued that it failed to address his concerns about the special levies and therefore provided no resolution to the issues in the proceedings and therefore he was not obliged to withdraw the claim against the body corporate as stated in his affidavit.95 The Court noted that the Deloitte report included assumptions required to be made, because of the lack of information and incomplete body corporate records, in order to reach its conclusion on the levy position as at 31 January 2018.96 The Court said the Deloitte report provided the best that could be done in the circumstances.97 It also noted that the levies had been dealt with in the course of Mr Memelink’s bankruptcy. In that context the dispute about the levies had come before Associate Judge Johnston, who had concluded that the levies were prima facie payable.98 The Court of Appeal dismissed the appeal against the strike out of Mr Memelink’s claims against the body corporate on 2 December 2021.
91 At [31].
92 At [32].
93 CA decision upholding strike out of levies claim, above n 30.
94 At [40].
95 At [13].
96 At [39].
97 At [40].
98 At [15].
Analysis — were proceedings in relation to the chairmanship issues totally without merit?
[78] Qualifying proceedings for making a s 166 order must be proceedings “commenced or continued by the party to be restrained, whether against the same person or different persons”.99
[79] The first of the “chairmanship” proceedings was the High Court proceeding in CIV 141. This was brought by Mr Memelink as a trustee of the Link Trust No 1. Brown J had noted in a minute of 16 May 2016 that the appropriate defendant was the body corporate rather than the three individuals who were the named first, second and third defendants, or the body corporate administration company,100 which was the fourth defendant, whose director, Ms Gillespie, is also mentioned in the pleadings.101
[80] The claims against the originally named defendants were discontinued or struck out as follows:
(a)Mr Memelink discontinued his claim against the fourth defendant.102
(b)The Court struck out the claim against the first, second and third defendants, having formed the view that the matters alleged in the claim were not valid causes of action.103
[81]The Judge commented as follows on the pleadings:
[10] Although the statement of claim has been drafted with the formal requirements as to pleadings in the High Court Rules in mind, it was plainly not prepared with legal assistance. While not prolix, it contains a lot of material that is more evidence than fact. It resorts to somewhat inflammatory language, alleging, for example, incompetent manipulation of the voting eligibility and manipulative bias. It also states that the defendants have “malevolently prejudiced and hijacked the BC 68792 voting rights of the plaintiff”.
99 Senior Courts Act, s 167(4).
100 At [6], as recorded in the decision striking out parties and chairmanship litigation, above n 42, at [8].
101 Decision striking out parties and chairmanship litigation, above n 42, at [5(d)].
102 At [7].
103 At [35].
[82] Brown J in his judgment striking out the claim against the first to third defendants said there were no valid causes of action against those defendants as follows:
[34] The basis of Mr Memelink’s assertion that the defendants have personal liability is captured in the following paragraphs of his written submissions:
13.That the Defendants also personally controlled the Plaintiff’s voting rights, denying him the right to vote despite them not being the incumbent Chairman in each case. On these matters the Plaintiff believes the defendants stand personally liable to the Plaintiff.
14.That the Defendants actions caused wastage of the Plaintiffs levies in a way that would have required the full consent of the Plaintiff’s, but they did not obtain that consent and spent money on items that were not in the provision of or payment of essential services. On these matters the Plaintiff’s believes the Defendant’s stand personally liable to the Plaintiff’s.
[35] However in my view the matters alleged do not translate into valid causes of action against the three defendants personally. Consequently the only proper conclusion is that the claims against them should be struck out.
[83] The claim against the administrator, who was the fourth defendant, was discontinued by Mr Memelink in the face of an application for summary judgment by that defendant. It was defective for the same reasons as the claims against the first three defendants, namely that there were no valid causes of action pleaded and therefore was bound to fail.104
[84] The Judge allowed an application by Mr Memelink to join the body corporate to enable his claims to be progressed without Limitation Act 2010 difficulties.105 His Honour noted that Mr Memelink was representing himself and therefore the Court provided guidance as follows:
[27] Naturally the Court endeavours to provide some guidance to persons who represent themselves, especially in complex litigation. However I am required to determine the defendants’ applications in accordance with established principles. In my view, if Mr Memelink and the unit holders he represents have valid complaints about the past decisions of BC 68792, then their claim lies against the body corporate, not against persons who happened to be office holders at material times. As the defendants submitted, a body corporate is a creature of statute with the rights and responsibilities there
104 At [7].
105 At [39].
conferred. The process for the election of a chairperson and the duties to be discharged are provided in regulations.
[85] With the joining of the body corporate as a defendant in the repleading, the proceeding was no longer bound to fail, although it was later struck out by Cooke J in 2022, as outlined above.
[86] The Tribunal application is a proceeding for the purposes of consideration on an application for a restraining order.106
[87] The Tenancy Tribunal has jurisdiction to hear and determine disputes between various persons, including owners, the body corporate, and a body corporate manager or an administrator arising in relation to a unit title development, including claims for unpaid levies.107 The Tribunal does not have jurisdiction to make orders requiring payment of amounts in excess of $100,000, although a party may abandon as much of the claim as exceeds $100,000 to bring it within the jurisdiction.108 It may make orders to do anything necessary to remedy the breaches of obligations arising under the Unit Titles Act, the body corporate rules or any agreement that is binding on the party and relevant to the unit title dispute.109
[88] The Tenancy Tribunal exercises its jurisdiction under s 85 of the Residential Tenancies Act 1986, which provides:
85 Manner in which jurisdiction is to be exercised
(1)Subject to the provisions of this Act and of any regulations made under this Act, the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which this Act applies.
(2)The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
106 Pursuant to s 167(2) of the Senior Courts Act, qualifying proceedings may be about any matter in any court or tribunal.
107 Unit Titles Act 2010, s 171.
108 Section 171(4)(a).
109 Section 171(3A).
[89] If there is no claim available according to the general principles of the law, the Tribunal has no jurisdiction to award a remedy on the merits of the case or ignore legal technicalities.110
[90] The Court of Appeal in Smith v Accessible Properties Ltd noted that s 85 of the Residential Tenancies Act did not purport to create jurisdiction, but is about the manner in which the Tribunal’s jurisdiction is exercised.111
[91] The Tenancy Tribunal application was brought by Mr Memelink as “head trustee” of Link Trust No 1, which was the owner of the units in the body corporate. Mr Memelink brought the same claims and sought the same remedies as he had brought against the original defendants in CIV 141 in his application to the Tenancy Tribunal. He did this with the knowledge that the claims against the defendants he was pursuing in the Tribunal had already been struck out or discontinued in the High Court by Brown J.
[92] The Tenancy Tribunal application was a proceeding that was totally without merit. It was bound to fail. This was apparent, as the same claims against the defendants in the application had already been struck out in the High Court proceeding (CIV 141) as there was no valid cause of action against the defendants. Mr Memelink had repeated the claims that had been struck out in an attempt to relitigate them in another forum. The Tribunal recognised the duplication of claims and the fact that Mr Memelink had by the time of the hearing also compromised the claims by agreement to discontinue them when an audit of the levies was carried out by Deloitte and Mr Gambitsis was appointed administrator. When the amended CIV 141 proceedings were struck out by Cooke J in April 2021 he referred to that agreement and the fact that the levies had also been dealt with in the course of Mr Memelink’s bankruptcy.
[93] According to general principles of law, Mr Memelink had no valid claim against the defendants in the Tribunal application. Therefore, the proceeding was totally without merit and bound to fail.
110 Welsh v Housing New Zealand Ltd HC Wellington AP 35/2000, 9 March 2001.
111 Smith v Accessible Properties Ltd [2019] NZCA 38 at [13].
[94] The cross-examination of Mr Gambitsis by Mr Memelink in this hearing focused on the issues concerning the levies, monies owing to Mr Memelink and the administration of the body corporate. These were the matters that were before the Court in CIV 141 and the Tenancy Tribunal. Mr Memelink continues to seek to relitigate those issues here despite final decisions of this Court and the Court of Appeal.
Claims against Mr Dewar
[95] Mr Memelink filed a claim for breach of duty of care and various other duties as a legal practitioner against Mr Dewar on 26 July 2016. The proceeding was struck out on 15 March 2017, for a number of reasons.112 It was statute-barred, having been brought outside the limitation period.113 In addition, Thomas J found that the basis of Mr Memelink’s claim was untenable as there was no evidence of negligence on the part of Mr Dewar, either by way of particulars or in any of the affidavit evidence.114 The Judge recorded that she would have entered summary judgment for Mr Dewar in any event.115
[96] Her Honour commented that the claim by Mr Memelink against Mr Dewar followed the successful strike out of the CIV 141 proceedings, and she accepted that this plainly showed the ill will Mr Memelink bore towards Mr Dewar, “as do the extravagant and false allegations, including of perjury, he makes against him.”116 Her Honour said the deficiencies in the claim meant it fell into the “hopeless case” category.117 She said that the continuation of the claim, despite the limitation problem and the “shifting sands in Mr Memelink’s position and allegations, emphasise the issues.”118 Her Honour found the claim was motivated by ill will and Mr Memelink was described as having behaved “badly or very unreasonably in bringing and pursuing” the claim.119 Indemnity costs were awarded against Mr Memelink.120
[97]This proceeding was totally without merit and bound to fail.
112 Strike out of claim and indemnity costs decision, above n 44.
113 At [28].
114 At [46].
115 At [48].
116 At [56].
117 At [57].
118 At [57].
119 At [57].
120 At [58].
Recusal application
[98] The applicant also points to the judgment in Body Corporate 81012, 68792 and 37894 v Memelink.121 This involved an application by Mr Memelink for an order that Churchman J be recused from presiding over proceedings involving Mr Memelink and his associates and associated companies. The application was not brought in relation to any particular proceedings but rather any potential proceedings that might involve those parties in the future.122 The allegations made by Mr Memelink were that the Judge was biased and bullied him or his lawyer and was not competent nor diligent.
[99] The Judge concluded the allegations in relation to some of the specific claims made by Mr Memelink were totally fictitious as he had not been the presiding judge.123 His Honour dismissed the application and noted that Mr Memelink was trying to “Judge shop” and get a preferred judge appointed, which was not permissible in our legal system.124. His Honour pointed out that judicial recusal was treated on a “case-by-case basis” where grounds of apparent bias were raised and that there can be no “blanket proscription.”125 The application was dismissed.
[100] The application for blanket recusal was totally without merit and bound to fail. It was brought in an application under cover of a proceeding which was already finally determined and an appeal had been abandoned, the Court of Appeal refusing an extension of time to pursue the appeal.
[101] The term “proceedings” used in s 167 is defined not in the Act, but its interpretation is assisted by the definition in the High Court Rules of “any application to the Court for the exercise of the civil jurisdiction of the Court other than an interlocutory application”.126 An application for a judge to recuse themselves in a specific matter will usually be done by way of interlocutory application. However, this was a blanket recusal application not specifically related to the receivership proceedings. It was arguable that it was an application to the Court for the exercise of the civil jurisdiction of the Court and so within the definition of “proceeding”. The
121 Recusal decision, above n 47.
122 At [2].
123 At [11].
124 At [41].
125 At [35].
126 High Court Rules, r 1.3(1) definition of “proceeding”; and see Khatri v Tomar, above n 9, at [29].
application was bound to fail and qualified as being “totally without merit” for the purposes of this application. It is not necessary to determine that point here but I am entitled to take this application into account when considering vexatious considerations at the second step, deciding whether the order is appropriate.
Receivership proceedings
[102] The receivers were appointed to the Link Trust No 1 in a judgment of Churchman J dated 31 May 2022.127 On 27 July 2022 an application for stay of the receivership brought by Mr Memelink was dismissed.128 The appeal against the order appointing receivers was deemed abandoned for want of prosecution on 3 September 2022 and on 29 November 2022 the Court of Appeal dismissed Mr Memelink’s application for restoration of the appeal and extension of time.129 Mr Memelink applied for an extension of time to bring an appeal, which the Court of Appeal very recently declined on 13 December 2023.130 The Court of Appeal said that allowing the application “would only serve to prolong this costly and prolix litigation.”131 It commented that Mr Memelink’s conduct bordered on the vexatious and said he had:132
… demonstrated a fierce determination to frustrate the receivership by presenting unmeritorious applications, which, in substance, repeat the applications that have already been determined by this Court.
[103] Mr Memelink then filed a number of applications to remove the receivers. These were described as “interlocutory applications”. The applications were dismissed on 31 July 2023.133 Mr Memelink had repeated many of the allegations made in earlier proceedings, including the disputes concerning the levies. In that judgment I commented:
[12] Mr Memelink’s submissions were broad-ranging and difficult to follow. They included Mr Memelink’s complaints concerning the actions of various parties both preceding his bankruptcy and following his bankruptcy and the Trust’s receivership. He directed his complaints towards a number of people and entities, including: the Body Corporate 68792 committee and chair
127 Receivership appointment decision, above n 1.
128 CA first refusal to stay receivership, above n 1.
129 CA second refusal to stay receivership, above n 1.
130 Memelink v Body Corporate 81012 [2023] NZCA 639.
131 At [18].
132 At [17].
133 Decision declining removal of receivers, above n 1.
as well as the owners of other units in the body corporate; his former lawyers and advisers, on whom he blamed his present situation; the administrators of the body corporate; the receivers; the Official Assignee and staff; and various judges who have dealt with proceedings relating to him and his entities.
[13] By way of an overview, the issues Mr Memelink raises in support of his application for leave to apply for various orders concerning the receivership fall under three main headings:
(a)Matters leading up to the bankruptcy of Mr Memelink, relating to the proposal put together by his former solicitor Mr Haines.
(b)Matters leading up to the appointment of receivers to the Link Trust No 1. This includes the long running dispute that Mr Memelink has with Body Corporate 68792 (Hutt Road), in which the Trust owned units, as to whether the levies were properly set and in fact were owed by the Trust. The thrust of these matters is that the Trust is entitled to recover various amounts from the body corporate because of its failure to allocate and use the levies in a lawful manner for repairs and to properly remunerate Mr Memelink or his Trust for work done for the body corporate.
(c)Matters following the appointment of the receivers: these include the arrangements for insurance over the property; the method of sale of assets and properties owned by the Trust to date; how various assets have been stored in the Hutt Road units owned by the Trust; and how Mr Memelink and his associated corporate entities have been dealt with by the receivers/Official Assignee
[104] The applications to remove the receivers, while described as interlocutory applications, did not fall within the definition of “interlocutory application” set out in the Senior Courts Act, which provides:134
interlocutory application—
(a)means any application to the High Court in any civil proceedings or criminal proceedings, or intended civil proceedings or intended criminal proceedings, for—
(i)an order or a direction relating to a matter of procedure; or
(ii)in the case of civil proceedings, for some relief ancillary to that claimed in a pleading; and
(b)includes an application to review an order made, or a direction given, on any application to which paragraph (a) applies
134 Senior Courts Act, s 4 definition of “interlocutory application”.
[105] It is arguable that the applications should have been brought in a new proceeding which was bound to fail because the appointment of the receivers had already been finally dealt with. In any event, I am entitled to take this application into account at the second step in deciding whether the order is appropriate.
Proceedings related to the removal of the body corporate administrator
[106] In proceedings brought by the administrator of the body corporate in which an interim injunction had been granted against Mr Memelink to prevent his interfering with insurance arrangements in the body corporate, Mr Memelink filed a counterclaim seeking the removal of the court-appointed body corporate administrator. The counterclaim had been filed after orders had been made in the receivership staying any proceedings by or against the trust. Mr Memelink also filed an application in that proceeding to remove the administrators and the receivers of the trust. In the decision dismissing that application I described it “an abuse of process”.135 The application (and counterclaim) had been brought in an attempt to circumvent the receivership stay on proceedings.136 I noted that Mr Memelink had repeated the allegations that he had made in previous proceedings criticising, “sometimes in venomous terms, solicitors, officials and judges who have disagreed with him.”137 Mr Memelink “repeated the allegations concerning the disputes over the levies which had been determined by the High Court and the Court of Appeal.”138
[107] The application (and counterclaim) filed after the receivership orders and stay of proceedings by or against the trust were in place were totally without merit. It was bound to fail because he had not obtained the consent of the receivers to file the counterclaim, nor did he seek leave of the Court to do so. A counterclaim is a proceeding for the purposes of s 167. The application was heard immediately before the present application for restraining orders. The application was dismissed.
[108] I also note that this Court has, on earlier occasions in relation to Mr Memelink’s opposition to the initial appointment of an administrator to the body corporate, warned him that “constant resort to repetitive litigation is a short-term strategy and that the
135 Decision declining removal of court-appointed administrator, above n 21, at [37].
136 At [39].
137 At [40].
138 At [40].
almost invariable outcome of litigation which is unsuccessfully pursued is a costs award.”139
[109] I do not rely on the application and counterclaim as qualifying proceedings. But they are relevant at the second stage of the application for the restraining order.
Other proceedings
[110] The applicant also referred to a judgment where an interim injunction was made against Mr Memelink restraining Mr Memelink from interfering with the body corporate insurance, and restraining Mr Memelink from registering a caveat against the body corporate title in order to prevent sales by the receivers.140 While these deal with Mr Memelink’s behaviour and the extent to which he will go to attempt to interfere with the receivership in the administration of the body corporate, they were not proceedings brought by Mr Memelink. However, they are relevant to the second stage assessment.
Second stage — discretionary test
[111] I have concluded that at least two proceedings were totally without merit. For the purposes of this application, I have identified the Tenancy Tribunal application and the claim against Mr Dewar as being those two proceedings. I have noted three other matters as arguably proceedings without merit, namely the counterclaim to remove the administrator, the application to remove the receivers and the recusal application. The two qualifying proceedings are about different matters. The first stage of identifying two qualifying proceedings has therefore been satisfied for the purposes of the application for an extended order pursuant to s 166(2)(b).
[112] At the second stage, involving a discretionary assessment, the Court may consider how the proceedings were conducted, as well as any wider circumstances that weigh for or against an order being made.
139 Body Corporate 68792 v Synergy Enterprises Ltd [2015] NZHC 1731 at [35].
140 Body Corporate 68792 v Memelink [2022] NZHC 3486.
[113] Vexatiousness is no longer a requirement at the first step, but the body corporate submits each of the hallmarks indicating vexatiousness are present in Mr Memelink’s case, namely:141
(a)a deeply entrenched pattern of behaviour characterised by a refusal to accept adverse decisions;
(b)extravagant and baseless allegations against a wide range of people, including judicial officers;
(c)an abject failure to comply with the rules of the Court;
(d)a filing of prolix and confusing pleadings; and
(e)a failure to recognise any distinction between pleadings, evidence and submissions.
[114] The body corporate submits the presence of these factors means it is appropriate to make an extended order against Mr Memelink.
[115] I am satisfied that those hallmarks of vexatiousness are present here. Mr Memelink has become focused on the disputes with the body corporate and has been bringing proceedings on that issue since at least 2014.142
[116] Mr Memelink has also made extravagant and baseless allegations against a wide range of people, including judicial officers. That was illustrated in the application for blanket recusal and the allegations levelled against Churchman J.143 In addition, Mr Memelink makes unsubstantiated allegations of criminal behaviour against the
141 Attorney-General v Heenam [2009] NZAR 763 (HC), cited with approval in Halse v Rangiura Trust Board [2023] NZHC 1519.
142 According to the judgment extending Mr Memelink’s bankruptcy period, he had been involved in 118 judicial decisions between 2015 and the hearing in 2023: bankruptcy extension decision, above n 1, at [83]. There have been several further decisions since that time. According to the Wellington High Court registry records, Mr Memelink or associated entities have initiated 14 proceedings since August 2018. However, he has filed a number of applications which are not included in that number, nor are the proceedings which he did not initiate but was involved in. I also note some of the proceedings related to his bankruptcy and disputed debts.
143 Recusal decision, above n 47.
administrator, the receivers, the Official Assignee and the lawyers involved, including Mr Dewar.
[117] The applicant pointed to statements in Mr Memelink’s affidavit of 10 March 2023 filed in support of an application for stay of proceedings, stating:
3. To be blunt the closest analogy to the current situation is that the Trust is being subject to Court sanctioned and directed gang-rape by the Official Assignee (OA), the Lynx Liquidators and the Receivers.
[118] It also points to an example found in Mr Memelink’s memorandum of 28 August 2023, where he states that:
11. Mr Dewar has previously acted for BC 68792 and is accused by myself and others of engaging in abusive and manipulative behaviour as well as being the recipient of hundreds of thousands of dollars of stolen/unauthorised expenditure of BC 68792 funds. Mr Dewar was the instigator of BC 689792 creating false invoices to Unit owners for the purposes of replacing funds BC officers and Mr Dewar had illegally taken/spent.
12. Mr Dewar is guilty of crimes punishable under the Crimes Act, such as fraud extortion, racketeering, forgery and perjury …
[119] These comments show an attitude by Mr Memelink to Mr Dewar consistent with that referred to in the decision of Thomas J above.144
[120] Recently Mr Memelink has been self-represented. He ignores the rules of the Court and files lengthy and confusing documents and submissions, as in this case. He ignores the Court rules, by, for instance, filing applications without seeking the receivers’ consent or the leave of the Court in his capacity as trustee, for instance in the counterclaim in the insurance injunction proceedings seeking the removal of the receivers. His pleadings are often prolix and confusing. There is frequently little distinction between his pleadings, evidence and submissions.
[121] By way of example, the following is an extract from submissions filed by Mr Memelink recently, on 3 October 2023. These submissions were filed in relation to his counterclaim in the insurance injunction proceedings seeking the removal of the court-appointed administrator. I reiterate that this was a claim which Mr Memelink was (and was found to be) plainly prevented from bringing, due to his bankruptcy and
144 Strike out of claim and indemnity costs decision, above n 44.
the stay on proceedings by or against the trust.145 For the sake of illustration, it is worth setting out the following from Mr Memelink’s submissions in full:
…
36. The Trust Receivers and Lynx Liquidators were long go made well aware of the potential fraud, breaches of the UTA and straight-out criminality within the BC68792 administration, as well as the legitimate outstanding claims of the Trust against BC68792, but chose and continue to choose to not inform the Court or take any action what-so-ever.
37. Whenever he wants to increase levies or decides to invoice additional charges to Unit owners Mr Gambitsis writes his own “Resolutions”. He does this without reference to the Court or Unit owners. Mr Gambitsis provides no information regarding the makeup of ordinary or any charges invoiced to Unit owners.
38. Mr Gambitsis has not filed Trust IRD returns for many years. This is an unusual omission for a chartered accountant, but it is something that might be done if there was a reason not to finalise the previous year’s accounts for some reason. Such reasons would normally indicate intentions of a fraudulent nature.
39. The Receivers and Official Assignee continue to clear out Trust buildings and have destroyed hundreds of thousands of dollars in plant, equipment, stock and materials. This includes ~100,000 security pass holders which are sold to most government agencies and a large number of business, and for which Mr Memelink hold US patents.
40. The Receivers and Official Assignee have also destroyed personal and family property, including important family heirlooms and paper based evidence required for litigation – they have and are destroying a crime scene.
41.I have orders for thousand s of ID pass-holders that I cannot fill.
42. Because Mr Gambitsis is considered to be an “Officer of the Court” the Court takes his word as being correct and truthful when the evidence shows otherwise.
43. Crimes such as deceit, extortion, racketeering and others have been committed in BC68792 by Mr Gambitsis and previous BC68792 officers and counsel. Many former Unit owners, such as Mr Cally Ross, and Mr Allan Dewsnap were forced out due to these issues and sold or settled with BC68792 on a “without prejudice basis”. This means the BC and he Court have an ongoing liabilities and responsibilities to resolve these issues.
44. The Court has a significant and growing liability for the criminality existing within BC68792 and the consequent destruction of Trust, company
145 This being the ostensible reason this claim was brought as a counterclaim in totally separate proceedings relating to insurance for the body corporate, as opposed to a distinct proceeding in itself, as it ought to have been: decision declining removal of court-appointed administrator, above n 21, at [54].
and personal assets, and the significant financial and health impacts to the applicant their families and their supporters.
45. If the Court does not act to put a stop to the current administration, the damages will continue against BC68793, BC68792 Unit owners and the Court.
[122] The above passage is characteristic of the type of submissions Mr Memelink regularly files in advance of his claims. As can be seen, Mr Memelink makes wide-ranging claims and allegations (without the requisite evidence tendered in support).
[123] Mr Memelink filed a 75-page affidavit on the morning of the hearing of this claim and a 115-page affidavit the night before. As I found in my decision ultimately declining Mr Memelink’s counterclaim, “most of the material contained in the documents that Mr Memelink filed was repetitious and irrelevant.”146 I noted Mr Memelink “was given a wide margin to make submissions, both in the documents filed and in his oral submissions” but that, particularly in his oral submissions, Mr Memelink “continually came back to the same issues of disputes with the body corporate and criticism of officials, advisors and judges.”147
[124] The above is demonstrative of the prolixity and confusion often apparent in Mr Memelink’s submissions and claims.
[125] The applicant points to the following examples of judicial comment on the way in which Mr Memelink as abuses of the Court’s processes:
(a)The Court of Appeal’s observation that “Mr Memelink’s modus operandi is prevarication, disputation and obfuscation”.148
(b)Dobson J’s comments that the history of dealings justified counsel’s submission that Mr Memelink “will disregard all lawful directions for payment, including judgments, and particularly whilst he remains bankrupt, he uses that status as a shield”.149
146 At [46].
147 At [46].
148 Unsuccessful appeal against bankruptcy decision, above n 1, at [13].
149 Body Corporate 68792 v Memelink [2020] NZHC 2691 at [19].
(c)Cooke J’s observation that Mr Memelink’s attempt to “reargue the same matters in this proceeding against all this background may well involve an abuse of process”.150
(d)Churchman J’s comments in the receivership case that Mr Memelink was “yet again [trying] to reopen arguments [he] has previously advanced about the legality of body corporate decisions going back as far as 2003”, which was “an example of [Mr Memelink] simply ignoring Court decisions he does not like”.151
(e)Churchman J’s later observation that “Mr Memelink’s litigiousness, the extent of litigation, and unpaid costs orders represent a risk to the efficacy of the receivership”.152
[126] Mr Memelink has also filed numerous interlocutory applications and appeals, for instance in relation to the removal of the receivers, which were totally without merit. His appeal against the appointment of receivers caused the Court of Appeal to comment on Mr Memelink’s “unmeritorious” applications.153 A third application for stay of the receivership and extension of time to appeal was dismissed by the Court of Appeal on 13 December 2023.154 The Court commented on the application being, on its face, totally without merit,155 and Mr Memelink’s conduct bordering on the vexatious.156
[127] A further matter to which the applicant refers is the dismissal of a private prosecution filed by Mr Memelink against Mr Gambitsis. In a decision dated 2 October 2023, Judge Black directed that a charging document Mr Memelink had attempted to file should not be accepted for filing.157 The proposed charge was under s 240 of the Crimes Act 1961, which involves “obtaining by deception or causing loss by deception”. His Honour noted that no particulars were provided and that the background to the charging document was a long-running civil dispute between him
150 Strike out of levies claim, above n 28, at [25].
151 Receivership appointment decision, above n 1, at [49].
152 Stay of proceedings decision, above n 1, at [31].
153 CA second refusal to stay receivership, above n 1, at [17].
154 CA third refusal to stay receivership, above n 20.
155 At [19].
156 At [17].
157 Memelink v Gambitsis [2023] NZDC 21253.
and Mr Gambitsis as administrator of the body corporate. The Judge noted that it appeared some of those proceedings were still on foot and while the documents provided by Mr Memelink contained allegations of deception, the documentation did not include all of the pleadings or the findings by the various courts and tribunals in respect of the allegations.158 The Judge concluded that the proposed prosecution was “an impermissible collateral attack on proceedings in other jurisdictions and as such
… an abuse of process.”159
[128] While most of Mr Memelink’s litigation discussed in this judgment has involved some aspect of the body corporate dispute and the levies which he continues to dispute, his claims have been made against numerous parties, including the professionals involved and body corporate members. Mr Memelink’s approach to litigation is to make extreme allegations against anyone who does not agree with him. This is not limited to the professionals and other businesspeople who have dealings with him. Churchman J described the distress caused to members of another body corporate in which Mr Memelink was involved due to his trust being a member of the body corporate.160 The judgment quotes from affidavits referring to the ability of the body corporate members to enjoy their home having been badly affected by Mr Memelink’s conduct over many years. Reference is made to the manner in which Mr Memelink conducts the business of his trust, bringing “endless chaos, disruption and disharmony to us as a group of owners.”161
[129] The manner in which Mr Memelink has been carrying out this litigation for a number of years has all the hallmarks of vexatious litigation. For the above reasons, I am satisfied that I should exercise my discretion under s 167 to grant an extended order.
Terms of order
[130] The final question for the Court to consider is whether the term of the order should be for a period of three years or five years. A period longer than three years is
158 At [21].
159 At [24].
160 Receivership appointment decision, above n 1.
161 At [57].
only available if the Court is satisfied there are exceptional circumstances warranting the making of a longer order.
[131] The body corporate submits there are exceptional circumstances here that warrant the making of a five-year order. The applicant says the frequency and manner in which Mr Memelink resorts to litigation has a negative impact on other citizens’ access to justice, and Mr Memelink’s litigation exposes people to inconvenience, harassment and expense that is out of all proportion to any gains he might hope to receive. It says Mr Memelink has engaged in relentless litigation against the body corporate and related parties for well over a decade. Counsel submitted that Mr Memelink is the most prolific and difficult litigant the Wellington registry has to deal with.
[132] Mr Memelink is presently a bankrupt and has been since August 2018. A recent decision of this Court extended the bankruptcy beyond the statutory three years for a further three years or until the termination of the receivership of the Link Trust No 1, largely due to Mr Memelink’s conduct during the period in which he was bankrupt, and on the basis that Mr Memelink did not accept the fact of bankruptcy, the receivership of his trust or liquidation of his companies, seeking to relitigate the circumstances surrounding his adjudication in bankruptcy and disputes with the body corporate or persons associated with it.162 When he was made bankrupt, Mr Memelink continued litigation, using the trust as a vehicle. Since December 2022 there has been a stay on proceedings by and against the trust, although Mr Memelink has nevertheless continued to pursue proceedings since that time notwithstanding the order.
[133] While I am satisfied there should be an extended order restraining Mr Memelink from commencing or continuing civil proceedings relating to the body corporate, I do not consider exceptional circumstances exist which warrant the restraining order remaining in place for longer than three years.
[134] As the Court of Appeal of England and Wales has noted, “[t]he power to restrain someone from commencing or continuing legal proceedings is no doubt a
162 Bankruptcy extension decision, above n 1, at [194].
drastic reduction of [their] civil rights”.163 Although “there must come a time when it is right to exercise that power”,164 it is important that any order made in this respect must preserve the important rights to access to justice, as contained in the New Zealand Bill of Rights Act 1990.
[135] Most of the litigation brought by Mr Memelink can be traced back to the disputed levies and body corporate disputes. Mr Memelink remains in bankruptcy and the receivership stay on proceedings is in place until further order of this Court. Without the consent of the receivers, the Official Assignee or this Court, Mr Memelink’s ability to pursue proceedings related to the trust or his business affairs is now severely limited.
[136] In Re Dunstan (although that case involved a general order), Brewer J was satisfied that a period of three years was justified because of the volume of Ms Dunstan’s filings and the number of them which were totally without merit.165 However, he did not consider that those factors amounted to exceptional circumstances.166
[137] A three-year extended order was also made in Mao v Buddle Findlay, in which the High Court found that no exceptional circumstances existed warranting an order longer than three years.167
[138] Three years is the maximum period a court may order absent exceptional circumstances justifying a longer period. While Mr Memelink has been involved in considerably more proceedings than have been analysed in this case, on the basis of the material before me in this case, I am not satisfied that exceptional circumstances exist which would warrant the restraint order remaining in place for a period longer than three years. Moreover, as Brewer J noted in Re Dunstan, at the end of three years a further order could be made if necessary.168
163 Attorney-General v Jones [1990] 1 WLR 859 (CA) at 865.
164 At 865.
165 Re Dunstan [2023] NZHC 3176 at n 16.
166 At n 16.
167 Mao v Buddle Findlay, above n 16.
168 Re Dunstan, above n 165, at n 16.
Restraining order
[139] An extended order restraining Mr Memelink from commencing or continuing civil proceedings relating to the body corporate is therefore granted in the terms sought for a period of three years from the date of this judgment as follows:
Preventing the respondent (in any capacity) from commencing or continuing any proceeding relating to the conduct or affairs of Body Corporate 68792 (including but not limited to the legality of any levies and lease disputes).
Costs
[140] The applicant seeks costs on a 2B basis. It appears an appropriate claim in the circumstances and, subject to submissions, I can see no reason why the usual rule that costs follow the event not apply. Mr Memelink is directed to file any submissions in opposition to the order for costs within five days of the date of this judgment.
Grice J
Solicitors:
J J Pietras, Duncan Cotterill, Wellington
N L Donaldson, Thomas Dewar Sziranyi Letts, Lower Hutt
Barristers:
J D Haig, Port Nicholson Chambers, Wellington
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