Body Corporate 81012 v Memelink

[2023] NZHC 1749

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-419

[2023] NZHC 1749

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

Hearing:

24 May 2023

Appearances:

A S Olney for the Plaintiffs in CIV-2021-485-419 H Memelink in Person

C R Vinnell for the Official Assignee

J D Haig for the Receivers for the Link Trust (No. 1) j d Dallas (Abiding)

Judgment:

31 July 2023

JUDGMENT OF GRICE J

This judgment was delivered by me on 31 July 2023 at 4.45 pm pursuant to R 11.5 of the High Court Rules

…………………..

Registrar/Deputy Registrar

BODY CORPORATE 81012 v MEMELINK [2023] NZHC 1749 [31 July 2023]

IN THE MATTER BETWEEN

CIV-2020-485-462

of the Bankruptcy of HARRY MEMELINK

THE OFFICIAL ASSISGNEE in the bankruptcy of HARRY MEMELINK
Plaintiff

AND

HARRY MEMELINK and CISCA JOHNETTE

FORSTER as Trustees of the LINK TRUST (NO. 1) First Defendants

IN THE MATTER BETWEEN

CIV-2020-485-374

of the Liquidation of LYNX TRUSTEES LIMITED LYNX TRUSTEES LIMITED (In Liquidation)

Plaintiff

AND

HARRY MEMELINK and CISCA FORSTER as

Trustees of the LINK TRUST (NO. 1) Defendants

Introduction

[1]                 Mr Memelink was adjudicated bankrupt on 28 August 2018. Receivers were appointed to Mr Memelink’s family trust, the Link Trust No 1, on 31 May 2022.

[2]                 The  receivers   appointed   to   the   Trust   are   Mr   Iain   Shephard   and  Ms Jessica Kellow of the accounting firm, BDO Wellington Ltd. They are court-appointed receivers and so are officers of the court. They are required to realise the assets of the Trust for the benefit of the creditors of the trust.

[3]                 The Official Assignee has objected to Mr Memelink’s automatic discharge from bankruptcy. But for the filing of the objection, Mr Memelink would have been eligible for automatic discharge on 6 September 2022.1 Mr Memelink opposes the Official Assignee’s application objecting to the automatic discharge. A public examination took place in April and May 2023. The decision on the Official Assignee’s application has been reserved.2

[4]                 Mr Memelink had run several businesses and owned properties through the Link Trust No 1 and his other entities. The Official Assignee had, in his preliminary investigations, determined that Mr Memelink’s personal and business affairs were so closely intertwined that they could not be separated from those of the Link No 1 Trust.

[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

1      Insolvency Act 2006, ss 46 and 67: the Assignee may reject a statement of affairs that is, in the Assignee’s opinion, incorrect or incomplete. Mr Memelink continues to dispute this.  Churchman J in his judgment appointing receivers dated 31 May 2022, Body Corporate 81012 v Memelink [2022] NZHC 1244, notes at [31] that there is no evidence justifying Mr Memelink’s assertion that sufficient information had been provided to the Official Assignee before 6 September 2019.

2      Memelink v Official Assignee HC Te Whanganui-a-Tara | Wellington CIV 2018-485-363.

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.

[6]                 The receivers oppose the applications for their removal, replacement, and/or modification to their terms of appointment and deny the allegations by the trustees that they have not been conducting the receivership properly. Pursuant to the orders appointing them, to date the receivers have filed three reports on the receivership state of affairs with the Court.3 The receivers indicate that the administration of the receivership is not close to completion. It has been, and is likely to continue to be, time-intensive for both them and their lawyers for a number of reasons, including that they have been required to deal with multiple proceedings and respond to a number of proceedings filed by Mr Memelink relating to the receivership and related matters.

This application

[7]                 Mr Memelink, both personally and through his Trust and companies controlled by him, has been involved in instigating and responding to numerous proceedings. He continued to pursue proceedings and file applications on behalf of his trust, following his bankruptcy. A number of those proceedings, including those the subject of the present applications, were called in a general case management conference for matters related to Mr Memelink and his entities on 6 March 2023.4 The present leave applications were timetabled to a hearing at that conference.  That timetable gave  Mr Memelink 10 days to file an application for leave and affidavits for orders granting leave to continue the proceedings. The application was referred to as the third amended application for leave. The directions required that the application for leave to file an interim injunction to vary the powers of the receivers or replace them and the application to appoint an alternative receiver were to be heard together.

3      The three reports are dated 11 July 2022, 13 October 2022 and 5 May 2023. The first was also filed in an amended form.

4      Minute of Grice J dated 21 March 2023. The case management conference involved consideration and management directions in relation to nine separate proceedings under five headings. The three proceedings which the subject of this application were dealt with under one heading and timetabled together.

[8]                 Mr Memelink’s amended applications, together with further evidence, were to be filed by 24 March 2023. The opposition was to be filed by 21 April 2023 and the matter was to be set down on a date after 1 May 2023 for a hearing of one day.      Mr Memelink did not keep to the timetable. He filed numerous documents, including some on the day before and on the morning of the hearing.

[9]                 In his oral submissions, Mr Memelink also referred to documents which were either not filed or on the files relating to other proceedings. The documents which had been filed and to which he referred in his oral submissions included:

(a)An amended interlocutory application to modify the terms of the receivership dated 16 December 2022. This seeks the amendment of the terms of the receivership by replacing the receivers with Mr John Scutter and permitting the trustees to advance three sets of proceedings:

(i)CIV-2022 -485-497 (the Loan Proceedings);

(ii)CIV-2021-485-459 (the Mortgage Proceedings); and

(iii)     CIV-2022-485-122 (Memelink v 68792).

(b)A third amended application for leave for the appointment of an alternative receiver and other orders (dated 12 February 2023).

(c)An interim application dated 28 March 2023 for leave in relation to three sets of proceedings. The application seeks that those proceedings “are immediately stayed”, an immediate halt is placed on the “sale of Trust assets and buildings” and that the Trustees be allowed free access to Trust properties and trading stock for the purposes of protecting that property, managing tenants and selling trading stock and assets to generate Trust income.

(d)An on-notice interlocutory application for injunction dated 24 March 2023. In support of that application Mr Memelink filed a document called “Bundle of affidavits of H Memelink in support of with notice

interlocutory application for injunction”. The affidavits attached are an affidavit by Mr Memelink dated 10 March 2023 and affidavits by him dated 30 November 2022 (in support of the application for an alternative receiver to be appointed), annexed documents referenced in that affidavit (dated 29 November 2022), a document dated 12 November 2022 (regarding the status of insurance for Body Corporate 68792), and a document dated 23 January 2023 (without notice interlocutory application for injunction orders).

(e)An “Urgent memorandum regarding extant applications and preventing gross miscarriage of justice” by Mr Memelink dated 18 April 2023, and an “Extremely urgent memorandum regarding extant applications and preventing gross miscarriage  of  justice”  by  Mr  Memelink  dated  19 April 2023.

[10]             In addition, immediately before the hearing Mr Memelink filed a three-page memorandum of the applicant dated 23 May 2023 (which he says his former solicitor Mr Livingston helped to write). He also filed a nine-page “Urgent Memorandum regarding a Leave Application” dated 23 May 2023 that started with a submission that Mr Memelink’s reader/writer, Mr Bassett-Burr, had been ill during the week and indicating that Mr Memelink had been unable to prepare as fully as he would have liked. This document set out submissions in relation to the receivership.

[11]             Mr Memelink also filed an affidavit by Ms Dayna May Spence, an insurance broker, dated 22 May 2023 and an affidavit of Ms Forster, the other trustee of the Link No 1 Trust, dated 22 May 2023. Mr Memelink finally emailed the Court this morning sending three further documents without explanation as to their relevance, being a Code of Professional Conduct of the Restructuring Insolvency and Turnaround Association of New Zealand Inc, a consent to act as receiver by Mr Scutter dated 23 May 2023 and a Wormald’s fire report dated 20 April 2023.

[12]             Mr Memelink’s submissions were broad-ranging and difficult to follow. They included Mr Memelink’s complaints concerning the actions of various parties both preceding his bankruptcy and following his bankruptcy and the Trust’s receivership.

He directed his complaints towards a number of people and entities, including: the Body Corporate 68792 committee and chair as well as the owners of other units in the body corporate; his former lawyers and advisers, on whom he blamed his present situation; the administrators of the body corporate; the receivers; the Official Assignee and staff; and various judges who have dealt with proceedings relating to him and his entities.

[13]             By way of an overview, the issues Mr Memelink raises in support of his application for leave to apply for various orders concerning the receivership fall under three main headings:

(a)Matters leading up to the bankruptcy of Mr Memelink, relating to the proposal put together by his former solicitor Mr Haines.

(b)Matters leading up to the appointment of receivers to the Link Trust No 1. This includes the long running dispute that Mr Memelink has with Body Corporate 68792 (Hutt Road), in which the Trust owned units, as to whether the levies were properly set and in fact were owed by the Trust. The thrust of these matters is that the Trust is entitled to recover various amounts from the body corporate because of its failure to allocate and use the levies in a lawful manner for repairs and to properly remunerate Mr Memelink or his Trust for work done for the body corporate.

(c)Matters following the appointment of the receivers: these include the arrangements for insurance over the property; the method of sale of assets and properties owned by the Trust to date; how various assets have been stored in the Hutt Road units owned by the Trust; and how Mr Memelink and his associated corporate entities have been dealt with by the receivers/Official Assignee.

The position of the Official Assignee and the receivers

[14]             The receivers of the body corporate, the Official Assignee (also acting as liquidator for some of the Memelink companies and Lynx Trustees Ltd), the

administrator of the Hutt Road Body Corporate (and Mr Neil for the Official Assignee as liquidator for Lynx Trustees Ltd) filed a joint memorandum dated 19 April 2023 in response to the numerous documents and applications filed by Mr Memelink for interim injunctions, stays of enforcement and replacement of the trustees. The joint memorandum notes that the documents filed amount to “an increasingly confused restatement of matters already referred to by Mr Memelink in his various applications for leave”.

[15]             Mr Chisnall for the Official Assignee noted that the assets and liabilities of the Trust and Mr Memelink’s personal assets and liabilities could not be separated. He said Mr Memelink’s personal and business affairs had become intermingled because of the way in which Mr Memelink carried out his business and the lack of reliable accounting records. He indicated that a substantial portion of the debts in the bankruptcy were Trust debts, and therefore the Official Assignee was looking to the Trust property as a creditor of the estate in bankruptcy.

[16]             Mr Chisnall pointed out that Mr Memelink has no standing to pursue matters on behalf of the Trust while the receivers are in place. Mr Memelink is not permitted to bring proceedings personally as a bankrupt. Therefore, any scope for him to pursue proceedings in the name of the Trust or his name personally are extremely limited. Mr Chisnall pointed out that  the  bringing  and  continuation  of  proceedings  by  Mr Memelink on behalf of the Trust in the period between his bankruptcy and the receivership and beyond had resulted in the incurring of legal fees by Mr Memelink for the lawyer he instructed in relation to litigation matters. Those fees are now being claimed against the estate in the bankruptcy/receivership.

[17]             Counsel indicated that  liabilities  exceeded  assets  in  both  the  estate  of  Mr Memelink in bankruptcy and in the Trust. The liability position had recently been stated with the issue of a decision on 23 May 2023 by Johnston AJ directing the Official Assignee to accept a proof of debt amounting to approximately $525,000, which the Judge determined was owed by Mr Memelink/the Trust to his former lawyer, Mr Haines.5

5      Haines v Official Assignee [2023] NZHC 1203 at [99], for an amount of $525,000 plus GST totalling $603,750, together with disbursements to be set.

[18]             I now turn to consider each of the three categories of grounds in general terms before turning to the application specifically.

Matters leading up to the bankruptcy of Mr Memelink

[19]             Mr Memelink spent some time in his oral submissions reflecting on his claims that his bankruptcy had come about because of the failures of his then lawyer, the attitude of the Associate Judge who bankrupted him and the misleading information which was contained in a proposal  that  had  been  prepared  by  his  then  lawyer Mr Haines. Mr Memelink agreed that he signed the document but says he only read two pages of it due to his dyslexia. He submits that he was solvent at the time of his bankruptcy.

[20]             The issue of his bankruptcy and matters leading up to it have been the subject of decisions of this Court and the Court of Appeal.

[21]             Mr Memelink was adjudicated bankrupt on 28 August 2018.6 His application for annulment of  adjudication  was  heard  and  dismissed  on  14 June  2018.7  On 25 March 2020 the Court of Appeal dismissed an application by Mr Memelink for extension of time to appeal the judgment adjudicating Mr Memelink bankrupt.8 The Court of Appeal in that decision said:

[5]        On 7 September 2018 Mr Memelink applied to annul his adjudication as bankrupt. Successive applications by Mr Memelink to adjourn that application were dismissed. The application was eventually heard by Associate Judge Lester on 5 and 6 June 2019. The Associate Judge dismissed the application in a judgment he delivered on 14 June 2019.9 That judgment sets out, and then carefully works through, the three grounds for annulment advanced by Mr Memelink. They were:

(a)Associate Judge Johnston was disqualified  from  hearing  the bankruptcy proceedings by conflicts of interest.

(b)Mr Memelink did not pay the judgment debts founding the adjudication proceedings because of flawed legal advice.

6      Re Memelink HC Wellington CIV-2018-485-363, 28 August 2018 [sealed order adjudicating bankruptcy].

7      Memelink v Official Assignee [2019] NZHC 1357.

8      Memelink v Collins & May Law [2020] NZCA 62.

9      Memelink v Official Assignee, above n 7.

(c)Mr Memelink’s creditors were using the bankruptcy process for collateral purposes: they were abusing the process.

[6]        It is clear from the judgment that Associate Judge Lester permitted Mr Memelink, in his oral submissions, to range well beyond the grounds in his application and the content of the affidavits supporting it. Equally clear is that the Associate Judge then allowed Mr Memelink, in his reply, to range far beyond points raised by counsel for the creditors opposing annulment.

[7]        The Associate Judge found none of the grounds for annulment to be made out. He concluded:

[74] Once the Court was presented with unpaid judgment debts, unpaid and undisputed supporting creditors and an insolvent debtor’s proposal, an order for adjudication was at the very least an outcome reasonably open to the Court.

[8]        The present application was filed on 2 October 2019; that is, some three months after annulment was refused.

[22]             Despite Mr Memelink’s insistence to the contrary, the Court of Appeal questioned the ability of the Memelink entities to pay their debts. It noted the appeal on its merits was unlikely to be successful and was critical of Mr Memelink’s approach to litigation as follows:

[11]              Two points about this. First, as we explain at [28] and following below when considering the merits of the proposed appeal, Mr Memelink largely proposes to re-run arguments he unsuccessfully put to the High Court in support of his annulment. Thus, a different outcome on appeal is improbable.

[12]Second, if the “Memelink Group” really does have equity of around

$8.5 million, then why has Mr Memelink not paid the debts that led to his bankruptcy, or at least the judgment debts and those he does not dispute?

[13]              The answer, which emerges from the mass of material filed in support of Mr Memelink’s application, is that Mr Memelink’s modus operandi is prevarication, disputation and obfuscation.

[14]Mr Memelink also deposes:

18. Since the unsuccessful annulment, a large number of  proceedings that were stayed until the annulment decision was made have come off hold, and I have been extremely busy responding to these.

That is distinctly not an acceptable explanation for the delay involved in this application.

[23]             The Court of Appeal went on to note that two delay considerations went against granting the application for an extension of time to appeal the bankruptcy. First, it

noted that the Official Assignee had said that Mr Memelink had not provided the information required in the bankruptcy. Mr Memelink denied that, but also admitted that he had not provided the accounting information to the Official Assignee, because his accountants had not kept his accounts up to date, so he could not provide the relevant information. The Court rejected that as a valid excuse.

[24]             The Court of Appeal also noted that one of the debts which the Official Assignee had admitted as proven was the judgment debt of $121,967.58 owed to the law firm Collins & May for unpaid costs awarded against Mr Memelink and his Trust by this Court10 as a result of an earlier judgment of 23 November 2017.11 The Court of Appeal noted that the Supreme Court judgment on 11 October 2019 had dismissed an application by Mr Memelink for an extension of time to apply for leave to appeal against that judgment.12 The Court of Appeal noted that, “[y]et again, Mr Memelink blamed a former lawyer for the delay”.13 It went on to say:

[19]… But the Supreme Court observed:

[12] What is clear, however, is that Mr Memelink was certainly put on inquiry before his email to his then lawyer in June 2018 and yet the application was only filed in September 2019, more than a year later. There is no reasonable excuse for the delay.

[20]As to the merits of the proposed appeal, the Supreme Court stated:

[13] Mr Memelink  … submits that the Court of Appeal  erred  on the facts and that the Court was deprived of certain documents which would have changed the result. He does not, however, identify with any precision those documents or explain why they would have led to a different result …

[21]      All of this reflects poorly on Mr Memelink and exemplifies the modus operandi we refer to in paragraph [13] above. This consideration also weighs against granting the application.

[25]             The Court of Appeal concluded that the six grounds of the application for the extension of time were without merit and largely repeated matters advanced by     Mr Memelink in his unsuccessful annulment application.14 Those grounds, in summary, were that the adjudication was erroneous; Johnston AJ had conflicts of

10     Collins & May Law v Memelink [2018] NZCA 29.

11     Collins & May Law v Memelink [2017] NZCA 541.

12     Memelink v Collins & May Law [2019] NZSC 114.

13 At [19].

14 At [39].

interest; and there was false and misleading conduct by Mr Memelink’s former lawyer, Mr Haines. An application to the Supreme Court for extension of time for leave to appeal to that Court was dismissed on 10 November 2022.15

[26]             Therefore, the matters leading to Mr Memelink’s bankruptcy have been dealt with in this Court and his attempts to appeal those determinations have been unsuccessful. There is no merit in the submissions of Mr Memelink pointing to the reasons for his bankruptcy.

Matters leading up to the appointment of receivers to the Trust

[27]             For some years Mr Memelink has been in dispute with Body Corporate 68792 (now in administration), a commercial development in Hutt Road, and other unit owners in the complex. Initially, he had instigated and supported the appointment of the  administrator  appointed  on  18  March  2015.   The  present  administrator,    Mr Gambitsis, was appointed by the Court on 5 October 2017. Mr Memelink no longer supports (nor has he for some time) the actions of the administrator who is administering the body corporate. The administrator has been cooperating with the receivers of the Trust in relation to the units owned by the Trust which the receivers are attempting to sell.

[28]             On 13 October 2020, Dobson J ordered Mr Memelink to pay outstanding levies owed to the Hutt Road Body Corporate up to 1 September 2018, failing which receivers would be appointed.16 His Honour noted that in early 2018 the accounting firm Deloitte was retained with Mr Memelink’s concurrence to prepare a report intended to reconcile the levies that had been charged by the body corporate and the allocation of individual unit holders’ liability for them. Mr Memelink then rejected the outcome of that exercise, claiming that Deloitte did not carry out the tasks contemplated and that he had been precluded by others from pressing his view of matters with the personnel involved. The Trust had therefore continued to refuse to pay levies for several years under Mr Memelink’s direction notwithstanding the legal obligation to make timely payment of all levies.

15     Memelink v Collins & May Law [2022] NZSC 130.

16     Body Corporate 68792 v Memelink [2020] NZHC 2691 (CIV-2020-485-162) [first receivership decision].

[29]             Dobson J in that judgment commented that Mr Memelink was bankrupt but continued to direct the activities and the business of the Trust in all aspects of its property management and business ownership, including initiatives to purchase further properties, negotiating sales and dealings with tenants.17 He also commented that the history of the dealings between Mr Memelink and the Hutt Road Body Corporate justified counsel’s submission that Mr Memelink “will disregard all lawful directions for payment, including judgments, and particularly whilst he remains bankrupt he uses that status as a shield.”18

[30]             The Trust was represented by Mr Livingston in the litigation. Mr Memelink made a partial payment of outstanding levies owed on 15 December 2020 and paid the balance owing up to 1 September 2018 on 1 February 2021.

[31]             Shortly after this, on 20 April 2021 Cooke J struck out proceedings brought by Mr Memelink against the Hutt Road body corporate concerning levies, for want of prosecution.19 The Trust was represented by Mr Livingston. The Trust had owned approximately half of the unit titles in the body corporate. In the fourth amended statement of claim dated 8 April 2021 challenges were made to certain levying decisions made by the body corporate, as well as decisions concerning the spending of the levies raised. The underlying events involved disputes originating from approximately 2003.20

[32]             In that decision Cooke J noted that the complaints concerned the amounts that the been levied against the unit titles associated with the Trust and other unit holders, the management of the body corporate and decisions to spend levies on certain disputes that the body corporate had with Transit New Zealand (associated with the decision to demolish units of the body corporate for realignment of State Highway 2). His Honour noted that there had been substantial delays in prosecuting the proceedings and a number of directions had not been complied with by the Trust.21

17 At [6].

18 At [19].

19     Memelink v Body Corporate 68792 [2021] NZHC 835 [the strike out decision].

20 At [2].

21     At [6], [13] and [32].

[33]             The Judge pointed to a written agreement between Mr Memelink and the body corporate that the proceedings would not be continued if the outcome of an audit by Mr Gambitsis, if he was appointed administrator, found there were outstanding levies. Mr Memelink agreed those levies would be paid promptly at the conclusion of the audit process. The agreement further went on to say that if Mr Gambitsis was appointed as administrator, the proceedings would be discontinued. Mr Gambitsis was appointed and facilitated the audit, but Mr Memelink reneged on the agreement.

[34]             In the strike out decision the judge commented on the historic nature of the dispute over the levies as follows:

[8] An important initial factor arises from the nature of that kind of proceeding. It is a challenge to the legality of levying and spending decisions. By their very nature such challenges need to be brought promptly. Levying decisions, particularly annual levying decisions, need to be addressed promptly because those subject to the levy will be required to pay it unless action is taken to set aside the levy, or obtain some form of interim relief pending a prompt determination of the challenge. That need is even more acute in relation to a challenge to spending decisions made by the body that has raised the levy. Once funds raised by levies have been spent by the Body Corporate it is very difficult to grant effective relief. In a situation where there are other members of the Body Corporate it is also necessary for there to be prompt action, as the challenge to the legitimacy of the levy or spending decisions has significant effects on them.

[35]             The decision also refers to the fact that the proceeding was conducted by    Mr Memelink in his capacity as a trustee as the right to pursue it did not vest in the Official Assignee. However, the Judge noted Mr Memelink had elected to have certain issues in relation to the levies addressed in the bankruptcy and liquidation of the former trustee of the Trust (Lynx Trustees Ltd (in liq)). That state of affairs, the Judge noted, underscored the point made earlier. That is, that such challenges would need to have been brought and determined promptly. The Judge went on to say that as the debt in question had been confirmed in the bankruptcy proceeding, “[t]o suggest that Mr Memelink can now reargue the same matters in this proceeding against all this background may well involve an abuse of process.”22

22 At [25].

[36]             The proceeding as a whole was struck out because it had not been prosecuted appropriately.23

[37]             The strike out decision was appealed.24 The Court of Appeal noted the complex history to the matter but that the proceedings had their genesis in complaints raised concerning the amounts levied against the unit titles and mismanagement of the body corporate. The allegations included that a special levy raised for reroofing and addressing structural issues in the complex had been used without proper authority for other purposes. The Court of Appeal noted that the body corporate had eventually been placed into administration due to the dysfunction within it. Mr Memelink had filed the proceedings concerning the levies and also had sought a declaration that the court-appointed administrator, then Mr Greenwood, be removed.

[38]             The Court of Appeal noted that the body corporate would be seriously prejudiced in trying to respond to the claims being made by Mr Memelink and that the Deloitte report provided the best that could be done in the circumstances.25 The Court of Appeal dismissed the appeal against the strike out of Mr Memelink’s claims against the body corporate on 2 December 2021.

[39]             Three proceedings then came before the High Court. The primary matter involved the Trust, Lynx Trustees Ltd (in liq) and three bodies corporate in which the Trust owned units. In simple terms, the three bodies corporate sought the appointment of receivers to the Trust.26 Mr Livingston again appeared for the Memelink interests.

[40]             Justice Churchman in his decision dated 31 May 2022 referred to the matters before him  as  “yet  another chapter in  the ongoing  saga of litigation” involving  Mr Memelink and his entities.27 He described the proceedings as follows:

(a)Under CIV-2021-485-419: seeking the appointment of receivers over the Trust by the three bodies corporate in which the Trust owned units

23 At [31].

24     Memelink v Body Corporate 68792 [2021] NZCA 640.

25 At [40].

26     Body Corporate 81012 v Memelink, above n 1 (involving CIV-2021-485-419; CIV-2020-485-462; and CIV-2020-485-374) [the receivership decision].

27 At [1].

in order to recover unpaid levies on the Trust properties and related debts.

(b)Under CIV-2020-485-374: liquidation proceedings in which the liquidators of Lynx Trustees Ltd were seeking to be indemnified out of Trust property for debts arising in respect of Body Corporate 68792 (Hutt Road)’s claim against Lynx Trustees Ltd as a trustee and for their reasonable remuneration after 15 September 2020.

(c)Under CIV 2020-485-462: related to bankruptcy proceedings in which the Official Assignee sought to be indemnified for debts incurred by Mr Memelink in his capacity as trustee. At that stage the Official Assignee noted the admitted claims incurred by Mr Memelink as trustee of the Trust amounted to $286,453.42 plus interest and costs together with costs at that stage in the administration of the bankruptcy of $665,534.73. In addition, the Official Assignee sought from Lynx Trustees Ltd, by way of summary judgment, the sum of $4,064,848 plus interest, being the amount that the Trust owed to Mr Memelink to settle claims from his bankruptcy. As an alternative the Official Assignee was seeking that the receivers to be appointed at the behest of the bodies corporate undertake the task of the sale of the Trust assets to meet debts in the bankruptcy. Following that, the Official Assignee requested that all creditors rank equally in respect of the claims against the Trust.

[41]Churchman J referred to the first receivership decision of Dobson J and said:28

[44]      Dobson J referred to an acknowledgement by Mr Memelink in a July 2018 affidavit that:

I have always elected to carry out business in a manner that keeps the maximum amount of money in my bank as possible. To achieve this, I elect to pay my bills at the last opportunity. By keeping funds in my account, I am able to be in a position to act on opportunities in a dynamic way.

[45]      Such behaviour is evident in the present case. Dobson J also specifically noted that the body corporate was in a parlous financial state. It was his view that this was caused substantially by the Trust’s default in

28     Footnotes omitted.

payment of levies and what was said to be the extraordinary level of administrative and legal fees incurred in pursuing payment from it, and responding to Mr Memelink’s challenges. The Court noted:

… there is a self-destructive element  in  some  of  the  initiatives  Mr Memelink has pursued and the vigorous opposition he has mounted to attempts by the Body Corporate to recover lawfully payable levies.

[42]Churchman J also noted that Mr Livingston on behalf of Mr Memelink had:29

… yet again tried to reopen arguments the defendant had previously advanced about the legality of body corporate decisions going back as far as 2003. This is an example of the defendant simply ignoring Court decisions he does not like.

[43]             His Honour referred to the distress being caused to other body corporate owners.  He referred to  affidavits by the chairperson of Body Corporate 378945,   Dr Julia Hennessey, who said that the manner in which Mr Memelink had conducted the business of the Trust “brings endless chaos, disruption and disharmony to us as a group of owners”.30 Dr Hennessey said that their ability to enjoy their home had been “very badly  affected  by  Mr  Memelink’s  conduct  for  many  years”,  and  that  “Mr Memelink’s incessant conduct causes ongoing distress to us”.31

[44]             Another unit owner gave similar evidence about the constant disruption of meetings, habitual threats by Mr Memelink to sue him, and false allegations that he had committed perjury. He also referred to Mr Memelink bombarding him with emails, including that on 4 November 2021 Mr Memelink sent him 99 emails over two-and-a-half hours late one evening about a leak in the roof above his unit.

[45]             Churchman J was satisfied that Mr Memelink’s failure to pay the levies and other debts and his behaviour had caused the body corporates, particularly Body Corporate 68792 (Hutt Road), to be “in a parlous financial state.”32

[46]             His Honour also referred to Mr Memelink’s disruptive conduct in respect of Body Corporate 68792 having been subject to prior judicial comment, referring back

29 At [49].

30 At [57].

31 At [57].

32 At [59].

to comments by Simon France J in earlier proceedings relating to Lynx Trustees Ltd. Those proceedings concerned the onerous nature of the task in the administration of the body corporate due to “what is seen as the obstructive and unreasonable conduct of persons associated with [Lynx Trustees Ltd]”.33

[47]             Churchman J noted Mr Memelink’s long history of raising disputes about the claimed legality of levies and that he used that as an excuse for not paying anything. His Honour concluded that nothing in the proceedings before him indicated that he was likely to change that pattern of behaviour.34

[48]             His Honour also made comments on the evidence that had emerged that while formally being a trustee, Ms Forster “played no substantive role in the conduct of the Trust’s affairs.”35 The Judge accepted on the evidence that Ms Forster was a trustee in name only and the only reason for that role “would appear to be her close relationship with Mr Memelink.”36 The Judge noted that Ms Forster deferred entirely to Mr Memelink and had little knowledge or interest in the affairs of the Trust and could therefore “not be expected to act with the level of insight, responsibility and good faith expected of a trustee”.37

[49]             His Honour went on to note that there was real concern as to the current solvency of the Trust, which also supported the need for the appointment of receivers.38

[50]             The Judge then appointed Mr Shephard and Ms Kellow as receivers of the Trust and set out the terms of their appointment.39

[51]             The reasons for the appointment of the receivers were Mr Memelink’s behaviour towards the other owners of the body corporate and his interference with body corporate affairs to the detriment of the bodies corporate; the poor governance

33     At [61], referring to the comments of Simon France J in Lynx Trustee Ltd v Body Corporate 68792

[2019] NZHC 1521 at [4].

34 At [63].

35 At [66].

36 At [68].

37 At [69].

38 At [78].

39     At [107]–[111].

of  the  Trust  and  the  dysfunction  of  the  body  corporates  largely  caused  by   Mr Memelink; as well as the likely insolvency of the Trust.

[52]             The terms of the order appointing the receivers were varied in December 2022. The primary objective of the order was that the receivers were to realise the assets of the Trust, including its interest in units in body corporate developments without the interference of Mr Memelink. The varied order provided for more extensive powers by the receivers, akin to those given to liquidators under the Companies Act 1993, to realise the assets of the Trust and provide a process to determine the debts properly claimable against the Trust with appropriate recourse to the Court.40 In particular, the orders provided for a special process  for  dealing  with  claims  by  the  Trustees,  Mr Memelink and Ms Forster.

[53]             An appeal against the judgment of Churchman J appointing the receivers was filed by Mr Memelink on 3 June 2022 together with a stay application. The Court of Appeal dismissed an application for stay of the receivership on 27 July 2022.41 In the judgment of the court, it noted the reasons for the appointment of the receivers were because the Trust lacked proper governance; there was no reliable record of the Trust’s financial position; the Trust may have been cash flow insolvent, balance-sheet insolvent, or both; and that Mr Memelink, in conducting the Trust’s affairs, was causing prejudice and distress.42 The Court noted that Mr Memelink had made extensive submissions but those submissions “admit no unifying theme beyond that Mr Memelink has done everything he can to manage the trust properly, and in accordance with law.”43 The Court was satisfied that no injustice arose by operation of the receivership imposed by Churchman J on the Trust, dismissed the application for stay and set an early date for the hearing of the appeal.

[54]             The appeal was deemed abandoned for want of prosecution on 3 September 2022. On 29 November 2022, the Court of Appeal dismissed Mr Memelink’s application for restoration of appeal and extension of time to file case on appeal and a

40     Body Corporate 81012 v Memelink [2022] NZHC 3307.

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

42 At [2].

43 At [5].

second application for stay of the receivership.44 The Court in that decision noted that the litigation needed to be seen in the wider context of delay on behalf of the trustees of the Trust in pursuing resolution of proceedings on their merits. It noted the trustees had in the past commenced proceedings in relation to body corporate levies and failed to progress them satisfactorily.45 The Court considered that there was no justification for the delay and the excuses that Mr Memelink offered for the delay were not relevant impediments.46 The Court went on to note that the trustees’ conduct in the delay was “indicative of the use of proceedings to delay and frustrate claims against the Trust, rather than a genuine desire to resolve issues on the merits promptly.”47

[55]             The Court noted that it had not undertaken a detailed analysis of the merits of the appeal because that was neither necessary nor appropriate. However, it went on to say:48

… But nothing in the material filed by the applicants or their counsel suggested to us that the appeal has any particular merit, and certainly none that outweighs all the factors identified above.

[56]             The Court also noted that Mr Memelink had filed extensive material raising concerns about the “conduct of the receivership”.49 However, the Court noted that was not a basis on which a stay could be granted and that any issues in relation to the conduct of the receivers would properly be the subject of an application for directions to the High Court.50 Mr Fraser appeared as counsel for the Memelink interests.

[57]             The receivership again came before this Court on 6 December 2022, when Churchman J referred to Mr Memelink’s opposition to the orders sought by the receivers to vary the terms of their appointment.51 Mr Fraser again appeared for the Memelink interests.

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

45 At [29].

46     At [29]

47 At [31].

48 At [35].

49 At [41].

50 At [41].

51     Body Corporate 81012 v Memelink, above n 40.

[58]             The   Judge   referred   to   an   application   filed   by   Mr   Memelink   on    1 December 2022 for leave to replace the receivers, although that application was not addressed in the judgment. His Honour went on to vary the orders of the appointment of the receivers, to include orders staying all proceedings by or against the Trust on the basis that “continuing such litigation (which relates to potentially contingent assets) [was] outside their core role, being to realise Trust assets for distribution to creditors.”52

[59]             In response to the submissions made on behalf of the Memelink  interests,  his Honour commented that it was now clear that the Trust was teetering on the edge of insolvency and that the receivers had made significant progress in winding the Trust up.53 The Judge also noted that the role of the receivers, as officers of the court, was to realise Trust property “for the benefit of the Trust’s creditors.” To the extent that this “constitute[d] the ‘significant destruction’ of the Trust, then that is the inevitable result of the receivership.”54 His Honour made the orders as sought by the receivers. The Judge determined that the variations sought were directed toward the receivers fulfilling the purposes of their appointment, to realise Trust property for the benefit of the Trust’s creditors, and not to act as trustees in the ordinary sense.

[60]Churchman J noted that the stay of proceedings involving the Trust:55

…. would increase the likelihood of Trust assets being realised for the benefit of creditors. Mr Memelink’s litigiousness is well-documented, and extant litigation and unpaid cost orders represent a risk to the efficacy of the receivership.

[61]             The orders as varied specifically referred to the receivers as not being “appointed as trustees for the benefit of the Trust’s beneficiaries and the receivers’ obligation are limited to those of Court appointed receivers.”56 In addition, the sealed order provided that, for any claim that had not been proven in a court or tribunal or admitted by the Official Assignee in the bankruptcy of Mr Memelink, ss 304, 305, 307 and 310 of the Companies Act apply as if the Trust were a company in liquidation and

52 At [17].

53 At [27].

54 At [27].

55 At [31].

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

the receivers were the liquidator of a company in liquidation.57 The order went on to provide in [1(i)] as follows:

(i)The exercise by the receivers of any of the powers conferred  upon   them by this order under the Companies Act 1993 may be subject to challenge on application to the Court by any person claiming that his, her or their interests are adversely affected by the exercise of such powers, except that Harry Memelink and/or Cisca Forster shall first be required to obtain leave of the High Court before filing any application against the receivers pursuant to this order (1)(i).

[62]             The varied orders went on to provide that s 248(1)(c) of the Companies Act applies to the receivership such that, unless the receivers agree or the Court orders otherwise, all proceedings by or against the Trust are stayed for the period the receivers are appointed, and in the case of proceedings against the Trust, the claimant shall submit a creditor claim in the receivership in accordance with the order.58

[63]             Since the appointment of the receivers, Mr Memelink has taken steps to try and control or influence the management and prevent the sale of the Trust assets. To deal with those actions the receivers and/or the trustees have had to seek and have obtained interim injunctions from  this  Court  and  orders  preventing  Mr  Memelink  and  Ms Forster from taking steps likely to interfere with the sale of the interests in the Hutt Road Body Corporate by placing caveats on the title and interfering with insurance arrangements.59  The   orders   prohibited,   in   general   terms,   interference   by   Mr Memelink/Ms Forster in relation to the sale and management of the Trust property and assets under the control of the receivers.

Matters following the appointment of the receivers

[64]             In November 2022, Mr Memelink applied for an order replacing the receivers.60 On 8 December 2022, Churchman J varied the terms of the receivers’ appointment.

57     Sealed interlocutory order, above n 56.

58     At [1(q)].

59     Body Corporate 81012 v Memelink [2022] NZHC 3486 [the caveat decision]; and Body Corporate 68792 v Memelink [2022] NZHC 3498 [the insurance decision].

60     An application for leave to make the application was filed on 1 December 2022.

[65]             Mr Memelink then attempted to lodge a caveat on the title of one of the units owned by the Trust in the Hutt Road Body Corporate (Body Corporate 68792) using information disclosed by the receivers at the hearing concerning the variation of the receivership orders held on 7 December 2022 that the settlement of the sale of that unit was to occur. On 13 December 2022 this Court granted an urgent injunction removing the caveats registered or to  be  registered  on  the  Trust  properties  by  Mr Memelink and  made  orders  prohibiting  the  lodging  of  further  caveats  by  Mr Memelink as well as restraining him from taking steps to interfere with the sale of Trust properties.

[66]             Subsequently the administrator of Body Corporate 68792 filed an application for an urgent interim injunction to prevent Mr Memelink interfering with insurance arrangements concerning the body corporate property.61 The interlocutory application dated 14 December 2022 sought an urgent interim injunction preventing the trustees, in particular Mr Memelink, “from interfering with the previous and current insurers and insurance arrangements in relation to the properties at 408 Hutt Road/Wakefield Street, more commonly known as Body Corporate 68792”.

[67]             The administrator of the body corporate had brought the application because Mr Memelink had been emailing and attempting to contact the broker and underwriters for the body corporate insurance. The receivers were in a position to sell two of the seven commercial use units in the body corporate owned by the Trust. The administrator recounted the difficulty he had had in obtaining insurance cover for the body corporate and had finally managed to obtain cover at a reasonable cost through a broker.62

[68]             The judgment noted that the purpose of the appointment of the trustees was to remove the Trust from the control of Mr Memelink, and “to enable the receivers to proceed with an orderly sale of the Body Corporate units.”63 The Court was satisfied that Mr Memelink had been emailing the broker and past and present underwriters alleging “severe issues and unpaid claims in past”, that the insurance had been

61     The insurance decision, above n 59.

62 At [9].

63 At [6].

cancelled, and alleging “fraud and misconduct” by the body corporate as well as referring to the “theft and conversion of ‘over $30,000 of stuff’.”64 The administrator was concerned that the insurance would be withdrawn, and the body corporate would be left uninsured and the units unsellable.

[69]             The Court found that the balance of convenience clearly favoured the granting of the interim orders and noted that the administrator had also pointed out that, not only had Mr Memelink been interfering with insurance arrangements, but he had “also taken a number of other steps which have disrupted the ‘good order of the Body Corporate’.”65 These steps included interrupting lawn contractors retained by the administrator, removing fire equipment, interfering with other unit holders as they went about their legitimate business, living on the premises despite being asked to leave and breaking and entering the units to use the shower facilities. The administrator had said that he had arrangements in hand to deal with those matters but had been unable to prevent Mr Memelink from corresponding with the underwriter and broker.66

[70]             Mr Memelink appeared in person and addressed the Court on all aspects of the claims by the administrator. Mr Memelink raised at that hearing many of the matters raised in this application, including the historic issues with the body corporate and the use of the levies. He argued that the insurance was “in fact void because of lack of disclosure to the underwriter and indicated the underwriter had been complicit.”67 The Court noted that the receivers had advised that they had confirmed the presence of insurance cover, reviewed the policy in view of Mr Memelink’s expressed concerns and in the opinion of Mr Shephard (one of the receivers), there was satisfactory cover. The receivers had also appointed inspectors to inspect the property to confirm there were no difficulties with the buildings which might jeopardise the current warrant of fitness for them.68 The Court noted that the steps taken by the receivers to satisfy

64 At [10].

65 At [28].

66 At [28].

67 At [18].

68 At [23].

themselves that there were no difficulties with the insurance cover or building warrant of fitness were appropriate.69

[71]             Interim orders were made on 15 December 2022 restraining Mr Memelink and Ms Forster (jointly and severally) personally or as trustees from contacting the current or former body corporate insurers and/or brokers and taking any steps whatsoever to interfere with insurance arrangements involving the body corporate.

[72]             Since that judgment in December 2022 Mr Memelink has filed a number of other documents and applications, including an application for a blanket recusal of Churchman J. Churchman J had delivered the judgements relating to the appointment of receivers and the variation of those orders.

[73]             The recusal application was dismissed on 19 April 2023.70 Churchman J canvassed the various proceedings referred to by Mr Memelink as giving rise to grounds of bias and impartiality.71 His Honour pointed out, in relation to the allegation that he had treated one of Mr Memelink’s lawyers harshly, that he was not presiding judge in  either  of  the  two  cases  in  which  the  named  counsel  had  acted  for  Mr Memelink’s company, or indeed in any other case involving that counsel  and  Mr Memelink’s companies.

[74]             The Judge noted that Mr Memelink’s allegations that Churchman J had made unfair comments in a case relating to statutory demands that had been improperly served on a Mr Haines and a costs award made against a non-party (Mr Memelink’s brother-in-law, Mr Bassett-Burr), were essentially factual findings in connection with matters advanced by Mr Memelink but rejected by the court and involved matters which had been rejected in the past. The court noted that Mr Memelink had exercised his rights of appeal in respect of these matters.72

[75]             His Honour also noted that one new allegation that had not already been ventilated before the courts was that the Judge failed to allow Mr Memelink to speak

69 At [30].

70     Body Corporate 810812, 68792 and 378945 v Memelink [2023] NZHC 835 [the recusal decision].

71 At [6].

72 At [14].

for his full allotted time and shut him down when he started discussing the lawyer’s Code of Conduct. The Judge noted that Mr Memelink had:73

… on a number of occasions before me, represented himself or his interests. He not infrequently becomes fixated about issues that are irrelevant or repeats issues that he has already fully addressed. This wastes the Court’s time. He clearly has a deep personal animosity towards Mr Haines and takes every opportunity to disparage Mr Haines, irrespective of whether his comments about Mr Haines’ character have any relevance to the issues before the Court. This also wastes the Court’s time. I have, from time to time, had cause to require Mr Memelink to limit his comments to issues that are relevant to the matters the Court has to decide in the case before it. That is not evidence of bias.

[76]             In  relation  to  the  receivership  proceedings,  Churchman  J  noted  that    Mr Memelink and/or his interests had been unsuccessful. They had attempted to stay the implementation of the decision and pursue appeal rights unsuccessfully.74

[77]In conclusion, Churchman J said:

[39]      A number of the matters raised by Mr Memelink are matters that, if they had  any  validity,  would  be  the  grounds  for  a  successful  appeal.  Mr Memelink has almost invariably exercised his rights of appeal against the decisions he is unhappy with. If there had been any substance to his claims about my competence, diligence or knowledge of the law, they would have resulted in the Court of Appeal upholding his challenges. The fact that they have not done that is telling.

[40]      The reality is that Mr Memelink, being unhappy with the decisions that I have given in a number of cases involving him or related parties, and having been unable to overturn those decisions on appeal, has decided to try and ensure that I am not able to sit on his cases in the future. Essentially, he is trying to “Judge shop” and get a preferred Judge appointed. That is not permissible in our legal system.”

Analysis

[78]             Counsel for the Official Assignee and the receivers, supported by the other parties opposing Mr Memelink’s applications, point out that the three proceedings to which this matter relates have been concluded and final orders have been made. Orders have been made following a defended hearing appointing the receivers, setting out the terms of appointment of the receivers and their powers and for the stay of

73 At [15].

74 At [17].

proceedings in relation to the Trust. Under the receivership orders, an application by the trustees (Mr Memelink and/or Ms Forster) may be made challenging the exercise by the receivers of any of the powers conferred on them under specific provisions subject to the agreement of the receivers or leave granted by this court.75

[79]             As Mr Memelink is presently a bankrupt and his trust is in the control of the receivers, there is little residual scope for Mr Memelink as a trustee and beneficiary to bring proceedings outside the leave process set out in the order.

[80]             The appointment of Mr Shephard and Ms Kellow as receivers, and the scope of the powers of the receivers to manage and sell the Trust property and assets on behalf of the creditors, were determined in the judgment of Churchman J in December 2022. The order appointing the receivers was appealed unsuccessfully. The December variation to the orders has not been appealed. Since their appointment, the receivers have faced constant interference by Mr Memelink directed at preventing the receivers from selling the property and assets of the Trust. Some of Mr Memelink’s attempts to interfere with the actions of the receivers have been the subject of further litigation which has also diverted the receivers from their primary task of realising the property and assets.76

[81]             Mr Memelink is asking the Court for leave to make further applications seeking that the Court revisit the decision to appoint and terms of appointment of the receiver. In support of this, he has repeated allegations which have been finally dealt with in the earlier court decisions. These include the matters leading to his adjudication in bankruptcy, the body corporate levies and disputes with the body corporate, the appointment of receivers to the Trust and their terms of appointment as well as the stay of proceedings involving the Trust.

[82]             Mr Haig noted that the present applications are confused and full of generalisations, and submitted that Mr Memelink approached his submissions at the hearing as an opportunity for bringing together all of the complaints and issues he has against the receivers and the body corporates decisions, some dating back many years.

75     Body Corporate 81012 v Memelink, above n 1; and sealed order at [1(i)].

76     For example the caveat decision, above n 59; and the insurance decision, above n 59.

[83]             The receivers denied the “raft of improprieties” alleged by Mr Memelink on their part in the conduct of the receivership to date. These include allegations that the insurance on the building was improperly obtained due to the lack of building warrants of fitness and other matters he raised in his opposition to the interim orders sought by the administrator of the Hutt Road Body Corporate which he said would invalidate the insurance. He also made general allegations about someone lighting a fire, knowing Mr Memelink was inside the unit  and could  not move out of the unit  quickly.     Mr Memelink said he had taken the matter up with the police.

[84]             Following the hearing,  a further affidavit was filed by Mr Shephard dated   30 May 2023 responding to a point that Mr Memelink had made in his closing submissions impugning the validity of the body corporate’s current certificate of insurance. That certificate had been annexed to an affidavit by Mr Shephard dated  23 May 2023 in these proceedings. Mr Shephard in his further affidavit annexed an email which indicated confirmation from the insurance broker for the body corporate that its claim in respect of a fire on 31 December 2022 in unit 16 of the Hutt Road Body Corporate had been accepted. Leave was sought by the receivers for the filing of their further affidavit on the basis that it merely updated the Court generally and supplemented the position reported by the receivers in their third report of 17 May 2023 and that the fire claim had only very recently been accepted by the insurer.

[85]             Leave to file the further affidavit is granted. It supports the evidence of the receivers as to the validity of the insurance cover and responds to Mr Memelink’s assertions in oral submissions that the insurance was not valid because of various defects in the building, in support of which he produced a Wormald fire report dated 20 April 2023. The report included a checklist relating to alarm and sprinkler tests in various units and was emailed to the court by Mr Memelink the day before the hearing and which I received on the morning of the hearing without any explanation as to its relevance, nor explanation by its author. One of the matters to which Mr Memelink drew my attention in his oral submissions was a compliance schedule attached to that report from the Hutt City Council did not refer to unit 16 but referred to a number of other units. The implication was that unit 16 was not compliant and so its insurance cover would be in jeopardy. In submissions, the receivers indicated that the reason unit 16 was not referred to was because it did not have the services installed that were

the subject of the report. Mr Memelink had an opportunity to reply to the receivers’ submissions. In those circumstances, and as the affidavit and memorandum merely support the submission and evidence of the receivers that the insurance is adequate and in particular it has responded to the fire claim in relation to unit 16, leave is granted. No response is appropriate, as the matter was raised by Mr Memelink and he was given the opportunity to reply to the response made by the receivers at the hearing concerning unit 16 that the insurance was valid. The additional information provides further evidence in support of the receivers’ response as to the validity of the cover but does not raise any further issue which requires a further reply by Mr Memelink.

[86]             Mr Memelink also alleges that the receivers have conflicts of interest because the BDO Wellington office was the registered office and acted as compliance accountants for Capital Property Managers Ltd, a property management company, until 2018. One of the directors of that company was Mr Naylor, who was a previous court-appointed administrator of Body Corporate 68792. Capital Property Managers Ltd ceased trading in October 2017 and applied to the Registrar of Companies to remove it from the companies register in 2018. BDO Wellington did not act as liquidators of that company, and the company was removed from the register in February 2019. The receivers joined BDO Wellington in April 2018 after Capital Property Managers Ltd ceased trading.

[87]             The relationship between Mr Naylor and the receivers is distant and for all practical effects non-existent. It does not give rise to a conflict of interest. In any event it is difficult to see that there would be a conflict of interest between the administrator and the receivers in this matter.

[88]             Mr Shephard also indicates that the receivers had engaged with Mr Memelink to the extent they considered was appropriate in the circumstances. Under the terms of their appointment, the receivers were empowered to seek information from the trustees under s 261 of the Companies Act. The receivers say that, despite several requests (which are outlined in the receivers’ reports), Mr Memelink and Ms Forster “singularly failed to cooperate by providing us with all of the information and documentation sought.”

[89]Mr Shephard went on to say:77

… While I understand Mr Memelink has dyslexia, he appears to be able to produce volumes of material for Court cases when it suits him. While we have for the time being not taken any steps to require compliance (under s 266 of the Companies Act, which also applies to the receivership), the lack of cooperation from the Trustees has significantly hampered the ordinary course of the receivership.

[90]             The affidavits that Mr Memelink produced in support of his applications, including those  by  Ms  Spence  (a  former  insurance  broker)  and  Ms  Forster  (Mr Memelink’s co-trustee) did not provide support for Mr Memelink’s applications.

[91]             Ms Spence said that having received information from Mr Memelink, although she did not indicate specifically what information this was, she gave her views as to the insurance position on the body corporate.

[92]             Ms Spence’s evidence is based entirely on what Mr Memelink has told her and information he supplied to her which is not before the court. She says that based on the information Mr Memelink has supplied, there was insufficient disclosure to the insurers. She has been told there was not a current building warrant of fitness and there have not been adequate fire inspections. The receivers’ evidence is that they have reviewed the insurance and warrant of fitness issues, and they are satisfied on both matters.

[93]             The copy affidavit of Ms Forster titled “Affidavit of Cisca Johnette Forster Setting the Record Straight”, was directed at challenging the findings of Churchman J that Ms Forster was a trustee in name only, that she played no substantive role in the conduct of the Trust’s affairs and the only reason for her role as trustee was her close relationship with Mr Memelink. The Judge commented that she had little knowledge or interest in the affairs of the Trust and could not be expected to act with the level of “insight, responsibility and good faith” expected of a trustee. Ms Forster in her affidavit of 22 May 2023 said that she had been the subject of “unfair and Constant Defamation and Slander” of a legal executive from a firm of lawyers and from Churchman J. It is not necessary to repeat the detail from her affidavit as that may

77     Affidavit of Mr Iain Shephard in support of opposition to defendant’s third amended application for leave, 27 February 2023.

exacerbate her feelings of grievance about references to her in judgments. In general terms, she sets out her academic and other achievements and notes that she had been instrumental “in aiding the Trust on several occasions to do with Insurance rules and regulations.” She also noted some other personal achievements and that she had become Mr Memelink’s ACC caregiver and had been assisting him for some time, including as his “reader writer”. She has also been involved in her own family trust which has helped Mr Memelink’s trust financially.

[94]             I do not consider the information in Ms Forster’s affidavit is relevant to the matters before me. Nor does it contain any information which would contradict the findings of Churchman J as to her role in the Trust.

[95]             Mr Memelink made general allegations that the “findings of the Receivers Report for May 2023” were in dispute and that bad faith had been exercised in the receivership. In addition to the allegations concerning the insurance, namely that the fire in unit 16 had been lit deliberately and that the receivers have been misled by the bodies corporate concerning the historic disputes he has had with them, Mr Memelink made allegations that the receivers had sold property at undervalue and caused difficulties with tenancies leading to lower rental income.

[96]             Mr Memelink in his submissions dated 23 May 2023, the day before the hearing, alleges in particular that properties at 1122B and 1358 Paekakariki Rd, Paekākāriki, and a yacht called The Catherine Johnson were sold at undervalue. He submits that the Paekākāriki properties were sold for a total of $600,000 when he had received  an  offer  of  $2.2m  for  the  property  at  1122B  alone  in  early  2022.  Mr Memelink claims the yacht had a replacement cost in 2019 of $2.7m. However, no evidence was produced in support of those allegations as to sale at undervalue.

[97]             Counsel for the receivers responded in his oral submissions to these allegations, submitting that the sales were undertaken with the benefit of valuations and appropriate professional advice. In relation to the yacht, Mr Haig noted that the yacht appeared in the 2018 annual accounts at a purchase price of $80,000 and was recorded at a value of $70,000 in the 2020 annual accounts. It was sold by the receivers in 2023for more than $80,000.

[98]             Mr Haig pointed to the reports and noted that the receivers were experienced, had acted professionally, and had diligently performed their obligations under the terms of their appointment and would continue to do so. A summary of the receivers’ actions in the receivership, together with the accounts, were set out in the first, second and third reports of the receivers filed in this Court. The third report is dated 5 May 2023.

[99]             The reports also record that substantial costs in the receivership can be attributed to Mr Memelink’s interference with the receivers’ orderly management and sale of the property and assets as well as the number of applications that Mr Memelink has filed. Apart from Mr Memelink’s applications to the Court, the receivers note that it was necessary to make various applications to prevent Mr Memelink from interfering with the sales of the units by attempting to interfere with the body corporate insurance and by attempting to register a caveat on the title of a unit subject to an agreement for sale. All of this has diverted the receivers from their task and tied them up in court proceedings.

[100]         The receivers are officers of the court and subject to the court’s general supervisory jurisdiction. A claim alleging breach of the receivers’ duty should be properly pleaded by reference to the receivers’ duties and the basis for the allegation should be set out with particularity.78 The allegations of bad faith require proof commensurate with the seriousness of the allegations.

[101]         A receiver exercising the power of sale is required to obtain the best price reasonably obtainable at the time of sale.79 Mr Memelink’s allegations fail to address that provision. In this case the allegations are unsubstantiated nor do they address the relevant statutory tests for the obligations of receivers. Even were there some basis for the allegations, the court does not have the required information before it to assess claims relating to the conduct of the receivership. The allegations that property has been sold at undervalue and that the receivers have not been properly conducting the

78 An example of such a claim made in a liquidation, where the court has similar supervisory jurisdiction over the liquidators as that concerning the receivers, is Toon v Quinn [2021] NZCA 696.

79 Receiverships Act 1993, s 19.

receivership such as to be in breach of their duties as receivers do not support the grant of an interim injunction.

[102]         In any event, I accept Mr Haig’s submission that if there were to be claims brought against the receivers by Mr Memelink personally for any actions they have or have not taken, as Mr Memelink is a bankrupt consent would be required by the Official Assignee. Nor can Mr Memelink file such claims on behalf of the Trust without consent of the receivers or leave of the court.

Conclusion

[103]         Mr Haig pointed out that the trustees’ ability to seek leave to make any application in relation to the receivership is limited to the provisions in that respect under the receivership orders. Therefore, the trustees may challenge the receivers’ exercise of any powers conferred on them by the receivership order under the Companies Act but only with leave of this court. The powers under the Companies Act which are bestowed on the receivers are set out at cl 1(ii) of the order. Specific provisions are set out in cl 1(ii) to enable challenges to the receivers’ exercise of various powers in the receivership. The clause deems the receivers to be liquidators and the trustees and beneficiaries to be the directors and shareholders respectively as if the receivership were a liquidation for the purposes of the exercise of the powers set out in ss 261 and 267 (inclusive) and ss 273–274 (inclusive) of the Companies Act. These provisions generally relate to the obtaining of documents and information, examination by the liquidator (receiver) of directors or shareholders (trustees or beneficiaries) as well as provisions prohibiting persons from leaving New Zealand to avoid payment of money due to a company. None of these are relevant to the present applications by Mr Memelink.

[104]         The receivers seek that the applications made by Mr Memelink be dismissed on the grounds that he is not entitled to apply for leave to bring applications of the nature before the court in the various applications as they do not relate to powers exercised by the receivers under the relevant provisions of the Companies Act. I agree that the applications before the court do not relate to the receivers exercising the

powers under the Companies Act and therefore the applications cannot be dealt with under that provision.

[105]         As the Official Assignee pointed out, there is little residual ability for the trustees to apply to the Court for any orders. The receivers have control of the assets in the receivership, and they would conduct any litigation on behalf of the Trust.    Mr Memelink personally is in bankruptcy and would need the consent of the Official Assignee to pursue litigation in his personal name. He does not have that consent for these applications.

[106]         Mr Memelink purports to make the interim injunction applications seeking various orders on behalf of the Trust. To the extent that the application relates to commencing proceedings or pursuing existing proceedings, the trustees must obtain the consent of the court to pursue them, in the absence of the receivers’ agreement under cl 1(q) of the receivership order, which, insofar as relevant, provides:80

(q)Section 248(1)(c) of the Companies Act 1993 applies to the receivership of the Trust such that unless the receivers agree or the Court orders otherwise:

(i)all proceedings by or against the Trust (in the name of the trustees) are stayed for the period the receivers are appointed

…

[107]         The receivers have control of the trust and therefore it is for them to make any application on behalf of the Trust. Leave of the court would be required to bring a derivative action. If Mr Memelink was to make a claim personally challenging the receivers’ decisions he would require the consent of the Official Assignee. In any event the present applications are not the appropriate vehicles for such a challenge. The allegations in this application as to the actions of the receivers fall well short of providing a basis for the grant of an interim injunction.

[108]         There are no grounds made out which would support leave being granted to Mr Memelink to bring an application on behalf of trustees of the nature he proposes, that is, to replace the receivers, vary the terms of the trust, allow greater participation

80     Section 248(1)(c) prohibits commencing or continuing proceedings against the Trust (company) without consent or leave of the court.

by the trustees of the Trust in the sale and management of the Trust property and assets and/or to stay the receivership.

[109]         In summary, the matters raised by Mr Memelink in support of this applications largely deal with disputes that have already been the subject of final determinations of this Court and cannot be revisited. The appointment of the receivers was made relatively recently, and the terms of their appointment were finalised after hearings involving Mr Memelink, who was given the opportunity to put relevant matters before the Court for consideration and did so. He was receiving legal advice at the time of the receivership. Mr Livingston acted for him in the hearing appointing the receivers.

[110]         Churchman J was satisfied that Mr Memelink’s failure to pay the levies and other debts and his behaviour had caused the bodies corporate to be in a parlous state. Mr Livingston for Mr Memelink, while not conceding the appointment of receivers, supported the appointment of the present receivers as against the appointment of the receivers nominated by the Official Assignee.81 Mr Memelink was legally represented by Mr Fraser at the hearing for the variation of the receivership orders which included the order staying proceedings.

[111]         Mr Memelink has already unsuccessfully applied on two occasions to the Court of Appeal for a stay of the receivership. It is inappropriate that he should be granted leave to pursue yet another application for a stay of the receivership.

[112]         The receivers are officers of the Court. The reports filed by and evidence of the receivers indicate that they have been acting professionally and appropriately undertaking the objectives identified by the Court, that is the realisation of the Trust’s assets for the benefit of the creditors in terms of the orders appointing them, a copy of which is attached. The receivers are not required to act in the best interests of the trustees nor of the beneficiaries of the Trust but have been appointed with a primary obligation to realise the assets of the Trust for the benefit of the creditors. None of the matters raised in support of this application support the claims that the receivers will act or have acted improperly or in bad faith.

81     Body Corporate 81012 v Memelink, above n 1, at [91].

[113]         The receivers have some way to go to realise the assets to the extent necessary for the payment of creditors. The receivers are required to provide reports and accounts as required by the Receivership Act 1993. They have reported to the Court accordingly and in due course they will account, although the interim reports contain accounting and reporting on the financial position for the period concerned. The creditor distribution process contemplated by the receivership orders has not yet commenced.

[114]         If the stay is to be waived to enable an application to be advanced, the applicant must first show there is some merit in the proposed application and that it would be appropriate in the overall interests of justice to grant leave to enable the application to be dealt with. The Court’s approach to interim injunctions is well settled. The applicant must first establish there is a serious question to be tried, that is that their claim is not vexatious or frivolous. Secondly, the balance of convenience must be considered. This requires consideration of the impact on the parties of granting or refusing to make the order sought. Finally, an assessment of the overall justice of the position is required.82

[115]         Mr Memelink’s applications fail at the serious question  to  be tried  stage.  Mr Memelink has raised no serious question that should be the subject of his applications insofar as they are applications for interim injunctions. The balance of convenience clearly favours the stay preventing any application by Mr Memelink. The stay will enable the receivers to undertake their obligations without the interference of Mr Memelink. Mr Memelink would be unable to pay damages as he is presently in bankruptcy and the Trust is in receivership.

[116]         Mr Memelink seeks to be involved further in the operations of the receivership. However it would be detrimental to the receivers being able to properly undertake that task if Mr Memelink for the trustees was allowed any role in assisting the receivers. He has attempted to place a caveat on a unit to prevent sale and attempted to interfere with insurance arrangements on the body corporate. In addition, as is apparent from

82 New Zealand Tax Refunds Ltd v Brooks Homes Ltd [2013] NZCA 90, (2013) 13 TCLR 531 at [12]; American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL); and Eng Mee Yong v Letchumanan [1980] AC 331 (PC).

the present applications and previous litigation, he attempts to relitigate matters which have been finally determined by the courts. These factors alone indicate that his involvement in the receivership would interfere with the progress and completion of the receivership and likely add significantly to the costs.

[117]         I accept the receivers’ assurances that the attempts at proper communication with Mr Memelink have been unsuccessful. Mr Memelink has demonstrated, even in his approach to these applications and his submissions to the Court, that he is fixated on a number of issues that have been finally determined by the Court. Further, the information he does provide is general in nature, diffuse and often misleading.

[118]         Standing back and looking at the overall interests of justice, they favour dismissing the application for leave by a substantial margin.

[119]         Finally,  Mr  Haig  noted  the   nature  of   the   “scattergun”   approach   of Mr Memelink. He pointed out that the Court is not in a position to consider, nor could the parties be required to respond to, any leave applications concerning the stay in relation to proceedings other than those before the Court today.

[120]         Accordingly the applications for leave to apply for an interim injunction and related applications are dismissed.

Costs

[121]         If costs are sought, a memorandum in support of any application for costs should be filed within five working days of the date of this judgment, any response by Mr Memelink within a further five days and any reply within a further three days. I will determine the application on the papers.

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

IM THE HIGH COURT OF NEW ZEALAND WELLINGTDN REGISTRY

I TE KOTI HIATMA O AOTEAROA

CIV 2021-485-419

/022] NZHC 1244

BETWEEN

AI4D

COL LI SEL ACTI VG

Aclrian Olney

f'O Ie'¥ 4 E-fii2d WeIIinq1nr 6 a2

Phone [phone]

BODY CORPORATE 81012, BODY CORPORATE 88782, and BODY CORBORAT E 378945

Plaintiffs

HARRY MEMELINK  and CISCA JOHNETT E

PORSTER as Trustees of Link Trust No. T

Oelendants

ORDER APPOINTING RECEIVERS

SOL iC ITOR ACTING:

Skrvc Bill Low PCi Box 20 713

Ls*ar Hurt gD't0 Phu'Ju 0ñ-590 4gI33

ORDER APPOINTING RECEIVERS

This documenI not ifies you that:

The application by the plaintiffs for the appointnJen I of receivers was determined by the Honourable Justice Churchman on 31 May 2022.

The following orders were made!

1.Iain Bn›ce Shephard and Jessica Jane Ketlow are app0inled ag joinI and several rece iverq and managers of elf of the property o/’ Liiix  Ti « st   uo. f/  [’Trust"] the  terms and Conditions !

(a)The giv ing of security in accordance with r 7.61 of the Nigh

Court Rules 20t6 is dispensed with.

The receivers shall be allowed remuneration as a first charge on the assets of the Trust at the rates to ke approved by the Court upon the filing of a memoranda by the receivers on a monthly or bi-month1y basis in a form as approved by the Court pursuant to r 7 52 of the High Court Rules 2016.

The receivers shah be indemnitnd to the extent of the asseis o/ the trust )n respect nT all Jjabittios property incurred by them in the course of the receivership.

(dj

The receivers shaI1 haye ng personal Iiabil ly for any debt or liability of the Trust or its trustees that is incurred following their appointment as receivers in relation to the

1. Any levies or other monies tidal become due and owing to any Body Corporate in felg tion to property of the Trust;

(ii)Any payment of wages or salary that, d•nng the receivership. accrue under a œntract of employment in relaiion to the property in receiverslJig and was entered into before the appointment of receivers i

(iii)Any interest cr loan principal payable to the secured and unsecured cmditors of D\e Trust: and

Any off ef paylr›ents becoming due u nder ąny other

-agreement subsisting at the date of the appo/nfrnen/ o/ the recede.re.

(v) Any contracts *or sale or lease entered inïn fnr the disposition of the property of the Trust.

[e) The reœivers shall file reports and acoaunts as required by the Receiverships Act 1903.

(0 The receivers are jointly and severally:

(i)Authorised tø do any act or thing that the trustees of the Trust might do, including but not I2mired In.

(A)   Identifying , taking immediate possession of, and protecting , all property of the i rust, including but nut limited to rental income and the records of the fruit;

Selling or otherwise realising sufficient property of the Test to reœvcr all costs of the receivership and alt of the pro'zen creditor claims that are indemnified and charged against the as sets of the Trust;

(C) Accounting to the Inland Revenue in relation to the tax obligations of tho Trust,

provided thai the receivers are not Bpponi trustees for the benefit of the Trust's Ș@””

3

(9)

Tg i)

and the receivers’ obligations are limit d to Chose of

Court appointed receivers ; and

1. Are empo\vered to exercice in respect of the Trust the powers çgnfe•rred upon liquidators pursuant to ss 26“: and 267 inclusive and ss 273 to 274 inç\usive al ihe Oorr\panies Act 1993 as if:

   (A)   The TruSt \vee a company in liq uida£ion;

   (B)   The settlor and the trustees of the Trus[ (pas] and present) were the directors of a company; and

   (C)    The beneficiaries of the Trust were the sfiarehoTders of a company in liquidation.

When a unit title property of the Trust that is part of Body Corporate 687g2 is süld by the receivers. the receivers shaft hold such proportion of tha net proceeds of sale as Body Corporate 68792 ciaims is due and owing in relation to Mat unit on must in an interest beoûng must account, ponding  the  granting  of  ürders  in  ace:Ofdanw  w th order f //:/ deb.

When any other unit title proper1y of the Trust. being properties that are par nf Body Corporates 8 i012, 378045, 85928 and 80S16 (d e Other BCP) is sold by the re œivers , the receiVers shall pay the leyies that are outstanding to Body Ccrporales B1012 and 378B45 {which they have already approved) and any other Æyies that, in their vies, oughl lo be paid, to those Dlher BCs on seltlement of each sale.

Q ii) lt is declared that nolwithstanding section 147(4) of the Unit Titlec Acl 2010, BO-dy C orpnrates Eî8792, 81Ot2 and 378945 agree to supply the reœivers

4

settlement disclosure stotement in the iJsual rourse and promptly supply łhe receivers with certifieates of insurance for ali insurances effected by lhe Body Corporate

/1c/ud)ng insurances teq»śed by sccFion 135 of the UniF Titles Art 2010) including, ia/here relevanI to the unit being sold, noting the interests of the pu<haser and ils mortgagee and eny orher information reasonably required to enable the receivers to complęps pre-contract disclosure statements in accordonce vrith seotion 146 of the Unii Tilles Act 2010.

It is declared that Body Corporates 68792, 81012 and 378045 have agreed that section 124(2) of the Unię Titles Act 2010 does the sale by the receivers of units in the those Body Corporates’ unit titla developmenrs, so that those units will be passed to purchasers free frorr\ any outslanding debt (such debt to be qddressed in accordance wilh order 1(g)).

(h)    in relation to any creditor claim that has not been provon in a Court or a Tribunąl or admiltec by the Oflicial Assignee in the ń'ąnkruptcy of Harry Memelink, ss 304, 3os, 307 and 310 of lhe Compąnies Act 1603 shall epply as if.

(i)The Trusl were g company in liquidetion: and

cii)     The receivers were the łiquidator od a Compąny in

liquidation.

(i)     Tlłe exerci$e by the receivers of any uF the powers Conferred upon them by this or‹Jer undar the Companies Act 1083 may be subject to challenge on application to the Court by any person claiming that his, her or their interests aie  adversely  affected  by the exercise of       *poweré‹' excepr that harry Meme link and/or Cisca F  '

(k)

(:)

be required to obtain leave Df he High Co rI before filing

any application against the receivers pursuant ro this order

\1)(i),

To the extent order 1{i) does not provide for il:

1. The proven creditors of the Trust are conferred rights of feview to the Court against the decisions or acts of the receivers, including in respect of the acceptance of other creditor claims: and

2. Any claimant w hose cr=dilor c la im has nat been accepted as a liability of the Trust has a right of review \o the court in respect of the rejection of its claim,

Subject to Order 1(m) belov.' the receivers are to seek Court orders Ton notice to the Offic'aI Assignee, Body Corporate 'R792 and all proven creditor») as to the dis]ributiur of be n•alised assets of I've *rust with the presumption that all creditors shall ran k equally but

\viIhout Iim'fing a claim 0y a Pody Corporate creditor In respect of the sum(z} that wuuld have, bHt fOr order 1 (q.iii), been en forceable by the Dody Corporate creditor against the  purch aserTs)  of  the  unit(s)  under  S  124  of  the  Lin r T itlns Act 2010.

The receivers, [.ynx Trustees Limited (in liquidation), Body

Corqorafe 'fi879=" and the Ottlciat Ass fignee in bankruptcy of the property of Flarry Memelink are re served leave to agply furthor,

Subject to the order in 1ig) above, the recei\'ers shall pay such levies and costs as may be owing to the Other BCs that, in their view, ought to be paid and Io estabtish

arrangements Sof the onge)ng ai d I)»x°Jy garment t/dgbls ” ’”'.,'

(n) In respect of disputed levies and costs not paid. the relevant Body Corporate(s) may submit a creditor claim to the receivers for unpaid levies, with such rlaims being addressed in aCCoidar\ce with orders I (g) and 1(h).

(O) The receivers shall assess and dncumen' the Trust's

financial position.

(p)Harry I\/lemeIink  anchor  Cisca  Forster  shall  within " working Oays ot this arder i›g en›ailad to them respectively at [email protected] and gjscaforater6qmaiI.coin (with a copy emailed to their solicitor at dnI/@livinqstonlitwio co ) provide to the receivers.

(i} Copies of all Current leases and rental agreements entered in respect of the properties of the Trust; and

(ii) Conia«t deiails (I+Iephone numbers, email addresses and physical addresses if such physical addresses differ to the premises tenantad) for all the tenants of tLe properties of the Trust.

(q)SeCion 248(1) c) of  the Companies  Act  993  applies Io the reoeiversf ip of tLe Trust snch that unles s the iecelvers agree or the Court orders g]heMise !

(i)     all proceedings by or against the Trust (in the name o i the trustees) are stcyed for !he period the receivers are appointed, and

(ii)in the case of proceedings against the Tr‹isl, any such claimant shall submit a creditor claim in the receivership in accordance \vi h grdgr 1fh),

provided   that \fli6  order          not preven! eithei Lyf x Trustees Lirrii£ed (in liquidation ), the Iiqt‹idaIors I Lgñx Trustees Limited (in liquidatign ), or the Offic Fig

'.*’)'”   ))'* , **

'’    ] .,...I

{r)

in the bankruptcy of the properly of I larfy MemelinL from making application to the I-high Court in the liquidation proceeding or the bankruptcy proceeding for the approval of iemuneratior\ and/or expenses that are payable By, and charged against the assets of, the Trust.

The step taken by \he receivers £o issue a notice on 29 August 2022 that creditor claims wore tn be filed by 28 October *Oñ2 a'as proper and, for /@ o\'o e o/ doubt. regulations 12 8nd 13 of the Companies Act 1983 Liquidation Regulations 1994 apply in the receiverslJig. Howcvor, claims from any creditors may be made by 19 December 2021 and claims from any ofl Ihe plaintiffs can be made up to the time the receivers seeH direUions as to distribution under order 1(k) of tho sealed orders. Leave is reserved for the Official Assignee to seek to delay any distribution by the receivers (or for the recei hers to make accommodation for such claims) in the e'zent that all claims in The bankruptcy are not resolved by hat time.

Date.   ’’‹  

Deputy Registrar         r

Benin NMEs