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 receivers was illegal for a variety of reasons, including the Judge making false assumptions, and the giving of false evidence by the officers of Body Corporate 68792 and the receivers. Mr Memelink refers to the fact that one of the lawyers involved in the case, Quentin Haines, has now been struck off. However, he goes on to make allegations of misconduct against a number of other lawyers involved in the proceedings and the Official Assignee. He seeks orders “to be able to produce evidence of collusion, misleading the courts and perverting the course of justice, supporting theft, destroying crucial evidence …”.

[7]                 The extensive history and background to the proceedings is set out in judgments of Grice J dated 31 July 2023 (dismissing Mr Memelink’s applications for leave to pursue applications seeking to revisit the appointment and/or terms of the orders appointing receivers to  the  Trust),3  and  21  December  2023  (granting  Body Corporate 68792’s application, noted above, to restrain Mr Memelink from commencing or continuing proceedings).4 I will not repeat that background here.

[8]                 In addition to Mr Memelink being required to seek leave to commence or continue civil proceedings against Body Corporate 68792, both Mr Memelink and Ms Forster require the leave of the High Court before filing any application challenging the exercise of the receivers’ powers in accordance with a decision of Churchman J of 19 December 2022.5

2      Body Corporate 68792 v Memelink [2023] NZHC 3850 [Restraining order judgment].

3      Body Corporate 81012 v Memelink [2023] NZHC 1749.

4      Restraining order judgment, above n 2.

5      Body Corporate 81012 v Memelink HC Wellington CIV-2021-485-419, 19 December 2022 at [1f)(i)].

[9]                 Grice J’s 21 December 2023 decision summarised Mr Memelink’s approach to litigation as follows:6

[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. 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.”

[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.

(Footnotes omitted)

[10]              On 21 May 2024, I dealt with a without notice application by Ms Forster seeking to challenge Cooke J’s decision of 16 December 2023 granting an injunction preventing a caveat lodged by Mr Memelink and Ms Forster being registered that would have prevented the anticipated sale of Trust properties by the receivers. That application and accompanying memorandum also asserted that the Court was misled in various ways  by  the  lawyers  and  the parties  to  the proceedings.  I declined  Ms Forster’s application for similar reasons to Johnstone J’s decision to decline what appeared to be an application by Mr Memelink for leave to seek orders restraining the sale of Trust assets.7 I concluded:8

[5]  As with [the application dealt with by Johnstone J on 1 December  2023], the substance of this application once again seeks to revisit matters previously dealt with by this Court. And again, to the extent any complaints as to the conduct of the parties may be fresh, they are simply unsupported by evidence. In line with the approach of Johnstone J, given the history of this matter, I consider it would be inappropriate for the Court to take any steps in respect of this application. For completeness, I also note that Ms Forster seeks a direction from Cooke J, but he is no longer a Judge of this Court.

6      Restraining order judgment, above n 2.

7      Body Corporate 81012 v Memelink HC Wellington CIV-2021-485-419, 1 December 2023.

8      Body Corporate 81012 v Memelink HC Wellington CIV-2021-485-419, 21 May 2024 (Minute of La Hood J).

[11]              The Court of Appeal dismissed an application for stay of the receivership on 27 July 2022.9 Mr Memelink’s appeal was deemed abandoned for want of prosecution on 3 September 2022. On 29 November 2022, the Court of Appeal dismissed his application for restoration of the appeal and extension of time to file the case on appeal and a second application for a stay of the receivership.10 On 13 December 2023, the Court of Appeal dismissed Mr Memelink and Ms Forster’s further applications for a stay of the receivership, to adduce further evidence and for an extension of time to appeal.11 In doing so, the Court said:

[15]      The delays in this case have been significant, even when allowance is made for time lost through the abandonment of the appeal and the application to extend time to file a case on appeal and apply for a fixture.

[16]      The only reason offered for the delays is the discovery of so-called “fresh evidence”, none of which is directly relevant to an appeal from the High Court judgment. Instead, the material relied upon to support the application comprises unsubstantiated allegations of corruption on the part of an administrator of the Trust.

[17]      Mr Memelink’s conduct borders on the vexatious. He has 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.

[18]      Allowing the application under r 29A would only serve to prolong this costly and prolix litigation.

[19]      The interests of justice overwhelmingly favour declining to extend time to file what, on its face, is an appeal devoid of merit.

Decision

[12]              Ms Forster’s application appears to be a challenge to the powers exercised by the receivers and therefore requires leave.12 The application for leave is declined for essentially the same reasons that I declined Ms Forster’s application on 21 May 2024, namely Ms Forster seeks to yet again revisit matters previously dealt with by the Courts. To the extent that her application suggests there are new matters that the Court

9      Memelink v Body Corporate 81012 [2022] NZCA 333.

10     Memelink v Body Corporate 81012 [2022] NZCA 581.

11     Memelink v Body Corporate 81012, above n 1.

12     Body Corporate 81012 v Memelink, above n 5, at [1f)(i)].

should consider, the memorandum (which includes links to various documents) does not provide an evidential basis for this assertion.

[13]              I reach the same conclusion in relation to Mr Memelink’s application for leave to continue his application for recall of the Court of Appeal’s 13 December 2023 decision. Again, it seeks to  revisit matters  previously  dealt  with  by the  Courts. Mr Memelink’s application, like Ms Forster’s, falls well short of providing an evidential foundation for a suggestion that there is new information that requires the Court’s consideration.

[14]Both without notice applications are therefore dismissed.

[15]I direct that the registry provide copies of this judgment to all the parties.

La Hood J