Body Corporate 68792 v Memelink - [2023] NZHC 3637

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-802

[2023] NZHC 3637

BETWEEN
BODY CORPORATE 68792

Plaintiff

AND

HARRY MEMELINK AND CISCA

JOHNETTE FORSTER as Trustees of the Link Trust (No. 1) (in receivership) Defendants

AND

IAIN SHEPHARD AND JESSICA

KELLOW as receivers of the Link Trust (No 1)

Interested party

Hearing: 6, 9 and 17 October 2023

Appearances:

J J Pietras and N L Donaldson for Plaintiff H Memelink self-represented for Defendants J D Haig for interested party

Judgment:

12 December 2023

JUDGMENT OF GRICE J

(Re interlocutory application to remove Mr Anthony Gambitsis as Court- appointed administrator of Body Corporate 68792)

BODY CORPORATE 68792 v MEMELINK AND FORSTER [2023] NZHC 3637 [12 December 2023]

Introduction

[1] Mr Memelink has filed an interlocutory application to remove Mr Gambitsis (the administrator) as administrator of Body Corporate 68792 (the body corporate).1 The administrator was cross examined following an application by Mr Memelink.2

[2] The administrator opposes the application for removal on the basis that a stay of proceedings is in place following orders made relating to the receivership of the Link Trust (No. 1), and therefore Mr Memelink and Ms Forster are unable to pursue their application as trustees of that trust. In order to pursue litigation by or for the trust, the receivers must consent or this Court grant leave for the trustees to do so.

[3] The administrator, supported by the receivers of the Link Trust (No. 1) as an interested party, says it is an abuse of process to bring an interlocutory application for removal of the administrator in proceedings which related to claims of interference by the defendants in arrangements for insurance of the body corporate. Mr Haig for the receivers says attempting to bring an interlocutory application to circumvent the stay is an abuse of process.

Background

[4] Mr Gambitsis was appointed by order of the Court with the consent of the unit holders of the body corporate on 5 October 2017.3 Before that, two other administrators had held the role. First was Mr Greenwood, who was appointed by the

1 This application and an application by the administrator for orders for an extended restraining order against Mr Memelink under s 166 of the Senior Courts Act 2016 was timetabled for a short hearing in a case management conference on 28 August 2023: Body Corporate 68792 v Memelink HC Wellington CIV-2022-485-802, 29 August 2023 (Minute of Harland J).
2 Mr Memelink indicated at the outset of the hearing that he was in pain due to his leg and was under stress. I granted leave for Mr Memelink to be assisted and seated beside Mr Bassett-Burr, who is Mr Memelink’s advisor and brother-in-law. The Registrar arranged for a higher chair to be brought into the courtroom for Mr Memelink to accommodate him. Mr Memelink sat next to Mr Bassett-Burr, who assisted Mr Memelink throughout the hearing and also addressed the Court on a number of occasions to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 3637
Decision Date: 12 December 2023

CaseChat Overview and Summary

Body Corporate 68792 has brought proceedings against Mr Harry Memelink and Ms Cisca Johnette Forster as Trustees of the Link Trust (No. 1) (in receivership) and others for relief including an interim injunction against Mr Memelink and Ms Forster. Mr Memelink has filed an interlocutory application to remove Mr Anthony Gambitsis as Court-appointed administrator of Body Corporate 68792. The legal issues the court was required to decide were whether Mr Memelink’s application was properly before the Court and if the application should be struck out. The court held that the application was an abuse of process and should be struck out. The court considered that the application was not an interlocutory application in this proceeding and that it sought to remove not only the administrator but the receivers of the trust. The court held that Mr Memelink’s application was an abuse of process as an application for the removal of the receivers had been dismissed recently by the Court. The court also held that any applications by the trustees as unit holders had been stayed by the receivership orders and that the application to remove the administrator was therefore stayed. The court found that Mr Memelink was attempting to circumvent the stay by bringing the application to remove the administrator under the umbrella of this proceeding which amounted to an abuse of process. The court dismissed the application.

Orders