Body Corporate 81012 v Memelink

[2023] NZHC 2849

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-419 CIV-2020-485-462 CIV-2020-485-374

[2023] NZHC 2849

BETWEEN

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

AND

HARRY MEMELINK AND CISCA

FORSTER as Trustees of THE LINK TRUST (NO. 1)

Defendants

CIV-2020-485-462

BETWEEN

THE OFFICIAL ASSIGNEE IN THE
BANKRUPTCY OF HARRY MEMELINK ESTATE 889243

First Plaintiff

AND

THE OFFICIAL ASSIGNEE IN THE

BANKRUPTCY OF HARRY MEMELINK ESTATE 895147

Second Plaintiff CONT

On the papers:

11 October 2023

Counsel:

S J Gill and A Onley for the Plaintiffs D G O Livingston for the Defendants

C R Vinnell and P R W Chisnall for the Official Assignee G A D Neil and R Hendriksen for Lynx Trustees

J D Haig and F B Q Collins for the non-parties H Memelink in person.

Judgment:

11 October 2023

JUDGMENT OF GRICE J (RECALL APPLICATION)

BODY CORPORATE 81012 & ORS v MEMELINK & ORS [2023] NZHC 2849 [11 October 2023]

CIV-2020-485-374

BETWEEN  LYNX TRUSTEES LIMITED

Plaintiff

HARRY MEMELINK
First Defendant

Introduction

[1]    Mr Memelink has filed  an  application  to  recall  a  judgment  dismissing  Mr Memelink and Ms Forster’s applications for leave to make various applications related to the removal of the receivers of the Link Trust No 1, Mr Memelink’s family trust.1 The receivers were appointed to the trust on 31 May 2022. The orders appointing the receivers were varied in a decision of 8 December 2022, when an order was made staying proceedings by and against the trust for the duration of the receivership unless the receivers’ consent or the leave of the court was obtained.    Mr Memelink acted for himself in the matter.

[2]    The judgment of this Court dated 31 July 2023 dealt with all the applications described in that judgment as follows:

[5]    Mr Memelink for the trustees, Ms Cisca Forster and himself, has filed a series of applications, including an interlocutory application for an injunction. The applications, in general terms, seek to revisit the appointment and/or the terms  of  the  orders  appointing  the  receivers.  In  particular,  Mr Memelink seeks orders replacing the receivers, suspending the receivership, or allowing the trustees (in particular, Mr Memelink) to have control over the realisation and management of the assets, property and the businesses that are owned by the Trust which are now in the control of the receivers. One of the orders made at the time of the appointment of the receivers was a stay of the proceedings by and against the Trust for the duration of the receivership. A waiver of that stay may be granted by consent by the receivers or by the court upon application. The trustees in an application dated 16 December 2022 sought orders allowing the trustees to continue the Trust’s proceedings.

[3]    Mr Memelink, in his application for recall, says there are factual details within the judgment that require correction and reissue of the judgment. He said he would like to supply an affidavit with the evidence as to the “corrections and either misunderstandings or info taken from other judgements as well as info put before the court which was totally incorrect and misleading” (sic).

[4]    Mr Memelink said some matters were so serious that they would change my view, and refers to crimes having been committed by some parties as well as the continuation of defamations and incorrect statements. Mr Memelink further says it is

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

also of public interest to recall the judgment due to other things coming to light and “the new appeal been put into appeal court with new evidence” (sic).

[5]    Mr Memelink’s application says that neither the liquidators, the receivers, or the body corporate administrator have given him any information when he has requested it, and this resulted in the receivership. He also refers to the body corporate administration breaching “the old uta” (which I take to be the Unit Titles Act 2010) and the “new act”, which requires information to be given on request.

[6]    Mr Memelink went on in his application to say that the cases need to be considered, as “the perverting of the course of justice and other crimes, current charges are pending”. Mr Memelink also asked that his reply to costs be put on hold until the recall application is dealt with.

[7]    No further material has been filed in support of the application for recall. The other parties have been served with the application for recall, but have not filed any submissions responding to the application.

Analysis

[8]    Mr Memelink’s application is dated 11 August 2023. In his application he explains he was only made aware of the judgment on 9 August 2023, as there had been an error in sending a copy to him. He says the application is made in reliance on “Section 21.1” of the High Court Rules 2016 (the Rules).2 I anticipate that he intends to rely on r 11.9 of the Rules, which deals with recalling a judgment. It provides:

11.9     Recalling judgment

A Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed.

[9]    Once a court has made an order, there is a significant policy reason for requiring the order to stand as conclusive, unless overturned on a challenge. The reason is the principle of finality in litigation.3

2      Rule 21.1 of the High Court Rules 2016 relates to the procedure for a case stated.

3      McGechan on Procedure (online looseleaf ed, ThomsonReuters) at [HR11.9.01(2)].

[10]   The leading statement in New Zealand remains that of Wild C J in Horowhenua County v Nash:4

Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled — first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.

[11]   The matters that Mr Memelink raises do not go near meeting any of the requirements for recalling a judgment.

[12]The application for recall is dismissed.

Grice J

Solicitors:

Steve Gill Law, Wellington

A Onley, Barrister, Wellington

Livingston & Livingston Limited, Wellington Anthony Harper, Christchurch

P R Chisnall, Barrister, Wellington Meredith Connell, Auckland

J D Haig, Barrister, Wellington

F B Q Collins, Barrister, Wellington

4      Horowhenua County v Nash [1968] NZLR 632 (SC) at 633.