Body Corporate 68792 v Memelink
[2016] NZHC 1906
•16 August 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2013-485-5775 [2016] NZHC 1906
BETWEEN BODY CORPORATE 68792 AND BODY
CORPORATE 378945
ApplicantsAND
HARRY MEMELINK Debtor
Hearing: 8 and 16 August 2016 Appearances:
D G Dewar for the applicants
E Horner for the debtorJudgment:
16 August 2016
ORAL JUDGMENT OF ASSOCIATE JUDGE SMITH
[1] I have before me separate applications by Body Corporate 68792 and Body
Corporate 378945 for orders for adjudication in bankruptcy against Mr Memelink.
[2] The adjudication proceeding was initially commenced in 2013 by the Commisioner of Inland Revenue. That proceeding was eventually settled, but another creditor, Body Corporate 81012, was substituted as creditor under s 44 of the Insolvency Act 2006 (the Act).
[3] The claim by Body Corporate 81012 was also the subject of an eventual settlement – in a judgment dated 17 May 2016 I gave directions for the payment out of certain monies Mr Memelink had paid into an independent trust account, and granted leave to Body Corporate 81012 to withdraw its adjudication claim. I directed that any applications for substitution as creditor would be considered in the
next list.
BODY CORPORATE 68792 AND BODY CORPORATE 378945 v MEMELINK [2016] NZHC 1906 [16 August 2016]
[4] Body Corporate 68792 and Body Corporate 378945 both applied to be joined as creditors, relying on Re Bruns, ex parte Trust Bank Central Limited.1 The applications were opposed by Mr Memelink. Following a defended hearing on
28 June 2016, I granted the applications of both Body Corporates to be substituted as creditors. The substituted creditors have since filed statements of claim, verified by affidavits, and Mr Memelink has filed a notice of opposition with a supporting affidavit. An affidavit in reply has been filed by Mr Martens, who was one of the joint chairmen of Body Corporate 68792.
[5] Both claimants have been waiting in the wings for quite some time. Body Corporate 68792 gave notice of appearance in support on 18 August 2014, and Body Corporate 378945 gave notice of appearance in support on 11 February 2015.
[6] Body Corporate 378945 obtained two judgments against Mr Memelink for unpaid levies under the Unit Titles Act 2010, which are said to date back as far as
29 November 2012. The first judgment was obtained in the District Court on
18 February 2016. It was for $81,340.83. Body Corporate 378945’s second
judgment is a judgment for $16,331.96 awarded in the Tenancy Tribunal on 4
May 2016.
[7] Body Corporate 378945 relies on Mr Memelink’s failure to comply with the
original bankruptcy notice served by the Commissioner of Inland Revenue on
19 September 2013. It also relies on two more recent bankruptcy notices with which Mr Memelink has failed to comply, both issued by Body Corporate 68792 and served on 26 April 2016.
[8] Although in his notice of opposition Mr Memelink contended that he had a cross-claim against Body Corporate 378945, at the hearing on 8 August 2016 his counsel advised that the judgment debt for $81,340.83 had very recently been paid. Ms Horner also indicated that if the claim by Body Corporate 378945 could be adjourned until 12 August 2016, Mr Memelink would also be able to pay the amount
of the Tenancy Tribunal award.
1 Re Bruns ex parte Trust Bank Central Limited (1992) 6 PRNZ 382.
[9] Ms Horner has advised me this morning that a payment of $19,000.00 covering the Tenancy tribunal award has indeed now been made. Mr Dewar acknowledges that the payment has been made, although there may be some doubt as to the precise amount which Body Corporate 378945 claims is due to it. As Mr Dewar put it this morning, he does not have instruction to withdraw the adjudication claim by Body Corporate 378945.
[10] Body Corporate 68792 also claims in respect of two separate debts. One was the amount of a costs judgment for $4,353.25 entered in proceeding CIV-2015-485-
940 on 8 December 2015, plus further costs ($796.00) on the bankruptcy notice which was issued on that judgment and served on 26 April 2016.
[11] The second amount claimed by Body Corporate 68792 is an amount of
$120,426.00 said to be due and owing by Mr Memelink in his capacity as a trustee of the Link No. 1 Trust, for levies on units 1, 3, 12 and 16 in the unit title development.
[12] Body Corporate 68792 does not hold a judgment for the $120,426.00 claimed for unpaid levies, and accordingly no bankruptcy notice has been issued in respect of this claimed debt.
[13] Again, Mr Memelink paid the amount of the judgment debt owing to Body Corporate 68792 shortly before the hearing on 8 August 2016. That leaves Body Corporate 68792’s claim for unpaid levies of $120,426.00
[14] Those unpaid levies are said to date back to October 2014, when Mr Memelink cleared outstanding arrears which had accrued to that time by making a payment (or payments) totalling approximately $181,000.00.
Mr Memelink’s notice of opposition
[15] Mr Memlink did not dispute the acts of bankruptcy on which both Body Corporates rely. In respect of Body Corporate 68792, he stated that the judgment debt would be paid, but that the $120,426.00 claimed for unpaid levies was disputed. He asserted that he had a cross-claim against Body Corporate 68792 which exceeded the amount of that Body Corporate’s claim.
[16] In support of his claim that the levy arrears claimed by Body Corporate
67892 are disputed, Mr Memelink refers to a proceeding he has commenced in this Court under CIV-2016-485-141 (proceeding 141). Proceeding 141 was originally commenced against Mr Martens and Mr J McKernen, who had been acting as joint chairmen of Body Corporate 68792, the Body Corporate’s solicitor Mr Dewar, and the company which had been providing administrative services to the Body Corporate. The claims against those parties have either been struck out or dismissed, but an order was made substituting Body Corporate 68792 for those defendants, on the basis that Mr Memelink’s claims appeared to be properly addressed to the Body Corporate, and not to the parties sued. Mr Memelink was directed to file an amended statement of claim in proceeding 141 against Body Corporate 68792, and he did that on 5 August 2016 (the document should have been filed by 15 July 2016, but an order was made by Brown J. on 12 August 2016 extending the time for filing).
[17] Mr Memelink’s claims in proceeding 141 are set out in a lengthy document which he has drafted himself. At its centre are claims that he has been improperly deprived of the fruits of an Extraordinary General Meeting, called by himself, which took place on 21 October 2014. He contends that he was validly elected Chairman of the Body Corporate (in place of the incumbents) at that meeting, and that other resolutions passed at that meeting, including a resolution that the Body Corporate’s bank accounts be frozen until the AGM scheduled for 7 November 2014, were later overturned in circumstances Mr Memelink contends were unlawful.
[18] Mr Memelink then contends that the AGM convened on 7 November 2014 was wrongly adjourned, when it appeared that other unit holders would not have the voting power to defeat Mr Memelink’s resolutions (including that he be appointed chairman).
[19] The joint chairmen and the Body Corporate’s solicitors took the view, inter alia, that Mr Memelink had no right to call the EGM on 21 October 2014 (that task fell to the chairmen), and that he had given insufficient notice of the EGM.
[20] The AGM was reconvened on 4 December 2014. Mr Memelink says that the voting to appoint a new chair was a principal agenda item. He goes on to allege the
voting at this meeting was “illegally manipulated” to ensure that his voting majority was overridden. The original chairmen were confirmed. Mr Memelink also asserts that the meeting of 4 December 2014 illegally voted to increase levies. He contends that this was opposed by the majority, but processed by the Committee anyway.
[21] By March 2015 it appears that the Committee had formed the view that the position within the Body Corporate, and in particular the dissention with Mr Memelink and at least one other unit holder, had become too difficult for the Committee to manage. An application was made under s 141 of the Unit Titles Act
2010 to appoint an administrator.
[22] Mr John Greenwood was appointed interim administrator by this Court on
18 March 2015, and his appointment was confirmed by order made on 29 July 2015. Mr Greenwood has since retired and has been replaced as administrator by Mr Naylor. The Body Corporate remains in administration, and a hearing relating to the continuation of the administration is scheduled for 6 September 2016.
[23] Mr Memelink was aggrieved by the manner in which the meetings were held on 7 November 2014, 4 December 2014, and on 5 March 2015, when an emergency EGM was convened to consider the proposed application to the Court for appointment of an administrator. He says his de facto majority was wrongly overridden at each of those meetings.
[24] Mr Memelink sets out a number of financial claims in proceeding 141. First, he contends that Body Corporate 68792 has not accounted for certain special levies, which were to be held in trust, in respect of each of his units. He alleges breach of fiduciary duty by the Body Corporate, and/or conversion, and he asks for an order for the special levies (total $273,589.99) to be repaid. He also seeks interest on that sum at 10% per annum, and an order cancelling all approved levy increases, together with various other sums claimed by way of compensation. His second and third causes of action relate to the allegedly illegal voting, and to his claimed right to appointment as chairman of the Body Corporate.
[25] The Body Corporate has not yet filed a statement of defence in proceeding
141. On 12 August 2016, Justice Brown adjourned proceeding 141 to a further hearing on 7 October 2016. Body Corporate 68792 was directed to file any interlocutory applications (including any application for security for its costs) by that date. It was directed to file a statement of defence, if it did not file any interlocutory applications (also by 7 October 2016). The application for continuation of the administration, to be heard on 6 September 2016, is opposed by Mr Memelink and some others.
Ms Horner’s submissions
[26] Ms Horner accepts that the Court has jurisdiction to make an adjudication order. She asks that the Court exercise its discretion under s 37(c) and/or (d) of the Act to refuse the application, on the ground that it would be unfair or inequitable to make an adjudication order. In the alternative, she asks the Court to make an order under s 38 of the Act halting the adjudication applications.
[27] Ms Horner relies on Falls Road Properties Ltd v Fletcher,2 and Waitomo Adventures Ltd v O’Hagan3, in support of the proposition that fairness requires that Mr Memelink be allowed to pursue his claims in proceeding 141. She says that there is proximity in time to the proceedings against both Body Corporates for
Mr Memelink’s cross-claims.
[28] Ms Horner does not dispute that the Body Corporates have the right to seek adjudication. But she says that Mr Memelink has made it clear from the outset that money is owed to him by the Body Corporates, and he has taken action by way of cross-claim to recover the money owing to him.
Mr Dewar’s submissions
[29] Mr Dewar submits that the relevant test for insolvency is the cashflow test4, and that Mr Memelink has failed to put forward any particulars of his assets and
2 Falls Road Properties Ltd v Fletcher [2012] NZHC 698.
3 Waitomo Adventures Ltd v O’Hagan [2014] NZHC 247.
4 The debtor must be able to pay his or her debts as they are incurred, either immediately or within a reasonable time – Holdgate v Bloccassa Ltd [2007] NZCA 132 at [19].
liabilities, or other information sufficient to show that he is not insolvent. He submits that Mr Memelink simply borrows to meet cashflow obligations, and has demonstrated no income. It is in the wider public interest that he be adjudicated bankrupt.
[30] Mr Dewar further submits that Mr Memelink has a history of setting up contrived cross-claims to stave off bankruptcy claims. He refers to the fact that a draft District Court claim against Body Corporate 68792 that Mr Memelink submitted in this proceeding as long ago as September 2014, was never in fact filed in the District Court. And while the quantified counterclaim was then only approximately $44,000.00, Mr Memelink’s claim in proceeding 141 is now said to exceed $300,000.
[31] Mr Dewar submits that even if a counterclaim of some kind exists in theory, a creditor is not to be kept out of its rights while a debtor considers his options5. He also points to the nature of Body Corporates, with their ongoing responsibilities to cover expenses such as insurance – the Unit Titles Act provides a regime for the communal ownership of land and the apportionment of the burden of the costs of that ownership between owners. Mr Memelink’s fellow unit owners are not willing creditors of Mr Memelink, who is a habitual debtor and a habitual litigant. These factors weigh against the exercise of the discretion in Mr Memelink’s favour.
[32] Mr Dewar also submits that the Court should be concerned that the continuation of Mr Memelink’s business imperils the public. The only reason the payments totalling approximately $181,000.00 were made by Mr Memelink in late
2014 was that the Court directed that the payments (or at least the bulk of them) be made. Further, Mr Memelink borrowed money to make the payments.
[33] If it is the case that Mr Memelink can pay, but is refusing to do so, that should also weigh against Mr Memelink in the exercise of the Court’s discretion, as
such a refusal may be considered commercially unacceptable6
5 Citing BNZ v Ellerm (HC); CIV-2011-409-1211; 11 October 2011.
6 Citing re Hall ex parte Martelli McKegg Wells and Cormack (HC), Auckland, B Nos 462/97 and
463/97; 22 January 1998.
Discussion and conclusions
Relevant legal principles
[34] Section 13 of the Act provides:
A creditor may apply for a debtor to be adjudicated bankrupt if—
(a) the debtor owes the creditor $1,000 or more or, if 2 or more creditors join in the application, the debtor owes a total of $1,000 or more to those creditors between them; and
(b) the debtor has committed an act of bankruptcy within the period of 3 months before the filing of the application; and
(c) the debt is a certain amount; and
(d) the debt is payable either immediately or at a date in the future that is certain.
[35] There is no dispute that jurisdiction exists under s 13 in this case.
[36] Sections 37(c) and (d), and 38, of the Act, which are relied upon by
Ms Horner, provide:
39 Court may refuse adjudication
The Court may at its discretion, refuse to adjudicate the debtor bankrupt if:
…
(c) it is just and equitable that the court does not make an order of adjudication; or
(d) for any other reason an order of adjudication should not be made.
38 Court may halt application
(1) The court may at any time halt the creditor’s application for
adjudication.
(2) The Court’s may halt the application on the terms and conditions (if any), and for the period, that the court thinks appropriate.
[37] The Court’s general discretion under s 37(c) and(d) was described by the
Court of Appeal in Baker v Westpac Banking Corporation as follows:7
It is proper for the Court to consider not only the interests of those directly concerned – the petitioner, other creditors, the debtor – but also the wider public interest. A creditor who establishes the jurisdictional facts as set out in [the equivalent of s 13 of the Act] is not automatically entitled to an order. On the other hand, it is for an opposing debtor to show why an order should not be made. The Court will give proper weight to the commercial judgment of the petitioner but the oppressive use of the bankruptcy process may be a ground for refusing an order. Another ground may be the undoubted absence of assets but that will not necessarily preclude an order given the range of interests involved including the public interest in the continuing oversight of a bankrupt’s affairs and the disqualifications that go with bankruptcy. In the end the Court must balance the various considerations relevant to the case and determine whether the debtor has succeeded in showing that an order ought not to be made.
[38] In Rabobank Australia Limited ex parte Tootell8, Associate Judge Osborne referred to the decision of Master Williams QC, as he then was, in re Epirosa9. In that case, the Master set out a list of factors which he considered relevant to the exercise by the Court of its discretion:
(a) what are the wishes of all affected parties, including the applying creditor, other creditors and the debtors?
(b)does the debtor have the ability to meet his or her debts over time, and, if so, does that meet the requirements of achieving finality within a reasonable period?
(c) what were the circumstances in which the debt was incurred, and do those circumstances suggest that the creditor is acting unreasonably in pursuing adjudication?
(d) will adjudication be pointless?
(e) will the debtor, if adjudicated, be rendered unable to support himself or herself?
7 Baker v Westpac Banking Corporation CA 212/92, 13 July 1993 at 4, per Richardson J.
8 Rabobank Australia Ltd ex parte Tootell [2013] NZHC 2975.
9 Re Epirosa, ex parte Diners Club NZ Ltd (HC) Wellington, B498/91, B532/91; 6 March 1992.
(f) does the debtor have such a standing in the community that significant issues of stigma or embarrassment will result?
[39] In Strachan v Moodie10, I noted the Associate Judge’s observation in Tootell that those are factors which frequently arise, but the Court’s task is to consider all of the facts of the case before it and balance the relevant factors in deciding whether it is just and equitable to decline to make an order, or whether there is other sufficient reason to follow that course.
[40] Where a debtor has a claim against a third party, the High Court has held that the starting point is that it will rarely be the case that the Court will be deflected from adjudicating a debtor bankrupt on the basis that the debtor has a claim against a third party, and that it will be for the debtor to show that there is some proper ground to suppose that the claim is a viable one and the result of the litigation will not be long delayed.11
[41] On the other hand, Ms Horner refers to Falls Road Properties Limited, where the Court considered that the combination of apparent substance to the third party claim and the proximity of trial were in combination sufficient to justify a halt order. And in Waitomo Adventures Limited, Associate Judge Doogue noted that one of the circumstances in which a halt can be directed is where s 43 of the Act applies. That section provides:
43 Court may halt application while underlying debt determined
(1) This section applies if the debtor appears in opposition to a creditor’s
application and the debtor says either—
(a) that he or she does not owe a debt to the creditor; or
(b) that he or she does owe a debt to the creditor, but the debt is less than $1,000.
(2) The court may, instead of refusing the application, halt the application so that the question of whether the debt is owed, or how much of the debt is owed, can be resolved at a trial.
10 Strachan v Moodie [2014] NZHC 3167, at [38].
11 Re Kroon, ex parte Westpac Banking Corporation, 24 April 2007, HC Auckland, CIV-2006-404-
4720, at [84].
(3) As a condition of halting the application, the court may require the debtor to give security to the creditor for any debt that may be established as owing by the debtor to the creditor, and for the costs of establishing the debt.
[42] In Waitomo, Associate Judge Doogue noted that the proceedings are halted under ss 43 and 38 in the insolvency Court, to give the parties an opportunity to resolve at trial whether or not the debt is owed. His Honour noted:12
In the circumstances of the present case, that section does not have any application because the question of whether the judgment debtor owes the amounts claimed has been finally settled by a judgment in the Employment Court against which no appeal has been brought and in circumstances where the time has now expired.
[43] In his judgment in Waitomo, Associate Judge Doogue expressed the view that a court would only be justified in granting a halt to the insolvency proceedings in circumstances where it considered that there was a matter of substance that ought first to be heard in the High Court proceedings (in that case, Mr O’Hagan had commenced an action in the High Court to set aside the Employment Court judgment). If the High Court proceedings appeared to offer little prospect of success to the judgment debtor then the Court would not be justified in halting the
insolvency proceeding.13
[44] On the facts in Waitomo, Associate Judge Doogue was not persuaded that the prospects of success in Mr O’Hagan’s High Court proceeding were high. However His Honour considered that the Court ought not to be denied the opportunity for Mr O’Hagan to bring the High Court proceeding to a conclusion before the bankruptcy issue was finally disposed of. His Honour accepted that there were good reasons why the judgment creditor should be able to obtain an order for adjudication based on the Employment Court judgment, but took the view that no particular hardship would result to the judgment creditor if a halt order were made, subject to
appropriate conditions.
12 Waitomo Adventures Ltd v O’Hagan, above n3, at [6].
13 At [32].
Application of the principles in this case
[45] The starting point is that Body Corporate 68792 is prima facie entitled to the order for adjudication it seeks. The question is whether Mr Memelink has put forward sufficient to justify refusal of the application under s 37, or a halt order under s 38. He does not rely on any personal circumstances which might tip the balance in his favour – his case is essentially that it would be inequitable to prevent him from pursuing his claims in proceeding 141.
[46] The first point to note about Body Corporate 68792’s claim for the unpaid levies is that it is not based on a judgment debt. There was no bankruptcy notice relating to that claim which Mr Memelink might have applied to have set aside. To that extent, Mr Memelink’s position is stronger than that of the debtor in Waitomo, where Associate Judge Doogue did make a halt order.
[47] I think too that the situation here is a s 43 situation – Mr Memelink is essentially challenging whether the levies made by Body Corporate 68792 were properly made i.e. the issue is whether the claimed debt is owing at all.
[48] Asking the question posed by Associate Judge Doogue in Waitomo, has Mr Memelink raised matters of substance in proceeding 141 which ought to be heard before the bankrupty proceeding is determined? It is not easy to answer that question on the evidence which has been produced, particularly as Mr Memelink’s statement of claim in proceeding 141 contains numerous unparticularised allegations and is, in part, not easy to follow. But I am bound to note that Body Corporate
68792 has not taken any enforcement proceedings in the Tenancy Tribunal or the District Court, as it might have done under s 124 of the Unit Titles Act 2010. It has preferred to await the outcome of the adjudication proceeding commenced by Body Corporate 81012.
[49] Also, I note that in his judgment in proceeding 141 on 14 June 2016 (in which the applications of the first to third defendants to strike out the claims against
them were granted, and Mr Memelink’s application to join Body Corporate 68792 as a defendant was granted), Brown J. stated:14
[33] It may prove to be the case that Mr Memelink has a legitimate complaint about the conduct of the 2014 meetings and the events which followed, such as the increase in levies. However the basis of my decision on the present applications is that any such complaint should be directed at the Body Corporate, not at individual office holders or a solicitor retained to act for the Body Corporate.
[50] I note too the advice given by counsel for the Body Corporate in a memorandum to the Court in proceeding 141 dated 11 August 2016, that the new administrator, Mr Naylor, has resolved to seek a fresh opinion in respect of the matters in dispute.
[51] In all of those circumstances I do not think I can conclude that Mr Memelink’s claims in proceeding 141 are clearly without substance. And if they or any of them are eventually found to have merit, it may be that the rights of other Body Corporate owners would be affected. So, subject to the matters to which I refer below, it seems to me that Mr Memelink should have the chance to pursue his claims in proceeding 141.
[52] But that does not mean that the adjudication proceedings should be dismissed. I have considerable sympathy for Mr Dewar’s submission that Mr Memelink is a habitual debtor, who disputes numerous apparently valid claims against him and (in a number of cases) has paid at the last minute, when there was no other option open to him. The public interest factors to which Mr Dewar referred have also caused me concern.
[53] I cannot make quite so much of Mr Dewar’s submission that Mr Memelink eventually pays his debts by borrowing, thereby substituting another creditor for the original one. The question of insolvency in such cases must presumably turn on the terms of the loan, and whether the borrower has the capacity to pay it off over time.
[54] There is also the very real concern that body corporates are simply not set up to deal with non-paying unit owners. Mr Martens stated in an affidavit sworn in this
14 Memelink v Martens and Ors [2016] NZHC1285, at [33].
proceeding on 25 September 2014 that the Body Corporate’s viability is greatly
imperilled by substantial levy arrears. Mr Martens stated that Body Corporate
68792’s operating budget was then $100,000.00 per annum. A long term sinking fund to be used to upgrade buildings had been depleted to meet the shortfall in levies. He said that if that fund had not existed, the Body Corporate would have been insolvent.
[55] Against those factors, Mr Memelink has shown on numerous occasions that he can pay when he is required to do so. Payments directed to be made in this proceeding in respect of both Body Corporates 81012 and 68792 were paid in late
2014, and Mr Memelink did comply with a direction that ongoing levies payable to Body Corporate 81012 were to be paid while that creditor’s claim was adjourned pending a decision on an appeal to the District Court from the Tenancy Tribunal. And in response to an inquiry I made at the hearing on 8 August 2016, Mr Memelink advised through his counsel that, if required, he could pay the $120,426.00 claimed by Body Corporate 68792 if he were given six weeks to do so, from the proceeds of a property he or the Link No. 1 Trust is selling.
[56] I do not doubt that Mr Memelink passionately believes there is merit in the claims he has made in proceeding 141, and although he was late in eventually filing a statement of claim against Body Corporate 68792 in proceeding 141, the substance of his claims was generally set out in an affidavit in that proceeding which he swore on 29 February 2016, not long after the events of October to December 2014 which are at the heart of his present complaints.
[57] Balancing matters as best I can, I conclude that this is not (yet) a case for an adjudication order. There may be a case for a halt order, but that will be dependant on Mr Memelink resuming the payment of ongoing levies and paying the unpaid amount of levies claimed.
[58] I adjourn the applications for adjudication to 10.00am on 18 October 2016, on the following conditions:
(a) Mr Memelink is to promptly pay to Body Corporate 68792 all ongoing levies which fall due after the date of this judgment. In the event that he fails to do so, leave is reserved to the Body Corporate to apply immediately by memorandum to have the adjudication application called in the next bankruptcy list. I record that this direction is without prejudice to any claim that Mr Memelink may make in proceeding 141 that he is not liable for the amounts of these payments (and that is he entitled to recover them from the Body Corporate);
(b)by not later than 11 October 2016 Mr Memelink is to pay to Body Corporate 68792, on the same basis as set out in (a) above, all amounts levied by Body Corporate 68792 to Mr Memelink between
1 November 2015 (that date being the first date after Mr Memelink says that the Body Corporate ceased charging a special levy which is the subject of one of his challenges in proceeding 141) and today’s date;
(c) by not later than 11 October 2016, Mr Memelink is to pay into Court (or into a solicitor’s trust account which the parties may agree upon in writing for the purpose) the balance of the levies claimed by Body Corporate 67892 in its statement of claim. Those funds to remain in Court (or in the independent trust account) pending further order of this Court.
[59] At the hearing on 18 October 2016, the Court will address the question of whether halt orders should then be made under s 38 of the Act, and if so on what conditions. The Court will also consider any remaining issue there may be over the amount very recently paid to Body Corporate 378945. Counsel should also be prepared to address the question of costs on that date.
[60] Before I leave the matter, Mr Memelink should clearly understand that he has been skating on thin ice for quite some time, and the decision to adjourn the proceedings until 18 October 2016 was only made after anxious consideration. I am
concerned at his track record of late filings, late payments, and a number of unmeritorious submissions which have been made over the period of roughly three years that this proceeding has been on foot. He should understand that, if the conditions above are not strictly complied with, he faces a very real risk that there will be an immediate order for adjudication without any further indulgence being
granted.
Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt for the applicants
Mahony Burrowes Horner, Wellington for the debtor
Associate Judge Smith
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