Body Corporate 81012 v Memelink - [2024] NZHC 1547

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-000419

[2024] NZHC 1547

BETWEEN BODY CORPORATE 81012, BODY CORPORATE 68792 AND BODY CORPORATE 378945
Plaintiffs

AND

HARRY MEMELINK AND CISCA

JOHNETTE FORSTER as trustees of the Link Trust (No 1)

Defendants

CIV-2020-485-000462

BETWEEN

THE OFFICIAL ASSIGNEE in the

bankruptcy of HARRY MEMELINK ESTATE 889243

First Plaintiff

THE OFFICIAL ASSIGNEE in the

bankruptcy of HARRY MEMELINK ESTATE 895147

Second Plaintiff

AND

HARRY MEMELINK, CISCA JOHNETTE FORSTER AND ROY WILLIAM

BASSETT-BURR as trustees of the Link Trust (No 1)

Defendants

CIV-2020-485-000374

BETWEEN

LYNX TRUSTEES LIMITED (IN LIQ)
Plaintiff

AND

HARRY MEMELINK

Defendant

BODY CORPORATE 81012 v MEMELINK [2024] NZHC 1547 [13 June 2024]

Hearing: (On the papers)

Counsel:

H Memelink in person

Judgment:

13 June 2024

JUDGMENT OF LA HOOD J

[1]Two without notice applications have been referred to me for consideration.

[2] The first is a without notice application by Cisca Forster (one of the defendants in CIV-2021-485-000419 and CIV-2020-485-000462) for:

a.Leave that the attached memorandum, dated 3 June 2024, be placed in front of the Court for consideration, as a response to the fifth
receivers report dated 17 May 2024 (Exhibit A).

b.Direction from the Court as to what actions should be taken given the new evidence, referenced in the attached memorandum (Exhibit B), regarding the judgments obtained by fraud and deception.

[3] The memorandum in support, which is difficult to follow, appears to challenge the actions of the receivers appointed to Ms Forster and Mr Memelink’s family trust, the Link Trust (No 1) (the Trust). It alleges that the “receivers have committed, witnessed and supported crimes of dishonesty in association with BC68792”, and asserts that the Court has been misled in various ways by the lawyers and other parties and seeks an opportunity to cross-examine the receivers and counsel for the receivers.

[4] The second document is a without notice application filed by Mr Memelink, seeking leave to continue an application to recall a judgment of the Court of Appeal.1 The application states:

Interlocutory Application Without notice, SEEKING APPLICATION for leave to continue a recall judgment of Appeal Court CA447/2023 and to add new information and evidence conforming and proving a miscarriage of justice and actual strong evidence and admission of the courts being misled and possible crimes being committed, as well as perjury, deceit, theft,

1 Memelink v Body Corporate 81012 [2023] NZCA 639.

collusion, and the breaking of the High Court rules 11.13, 11.12, 17.9, and Unit Trusts Act section 141.

[5] Although difficult to follow, the application acknowledges that leave is required due to the decision of Grice J dated 21 December 2023 restraining Mr Memelink, pursuant to s 166 of the Senior Courts Act 2016, from commencing or continuing civil proceedings relating to Body Corporate BC68792 without the leave of the High Court.2

[6] The application asserts that new information and evidence establishes that the original hearing relating to the appointment of the…

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: [2024] NZHC 1547
Decision Date: 13 June 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Body Corporate 81012, along with other body corporates, and the Official Assignee in the bankruptcy of Harry Memelink, brought separate actions against Harry Memelink, Cisca Johnette Forster, and Roy William Bassett-Burr, as trustees of the Link Trust (No 1). The plaintiffs sought to enforce levies and to recover costs associated with managing the trust's properties. The defendants, represented by Memelink in person, contested these actions, alleging improper conduct by the receivers and the plaintiffs. The court was required to decide whether to grant leave for the defendants to present new evidence and arguments challenging the decisions of the receivers and the court's previous rulings.

The court dismissed both applications, finding them to be vexatious and repetitive. The court noted that the defendants had a history of making unsubstantiated allegations and bringing unmeritorious applications. The court emphasised that the defendants needed to provide a solid evidential basis for any new claims, which they failed to do. The court concluded that allowing the applications would only prolong the litigation unnecessarily and without serving the interests of justice.

The court's reasoning was that both applications sought to revisit issues already decided by the court and lacked a proper evidential foundation for new claims. The court also noted that the defendants had a pattern of making extreme allegations against parties who opposed them, which the court deemed as vexatious litigation. The court directed the registry to provide copies of the judgment to all parties involved.

Orders