Forster v Body Corporate 68792

[2025] NZHC 1094

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2022-485-802

[2025] NZHC 1094

BETWEEN

CISCA JOHNETTE FORSTER

Applicant

AND

BODY CORPORATE 68792

Respondent

AND

IAIN BRUCE SHEPPARD and JESSICA

JANE KELLOW as receivers of the LINK TRUST (No. 1)

Interested Party

On the papers

Appearances:

Applicant in person

D G Dewar for Respondent

No appearance for Interested Party

Judgment:

8 May 2025

JUDGMENT OF GRICE J

(Application for Recall of judgment)

Introduction

[1]                 Ms Cisca Johnette Forster, a trustee of the Link Trust (No. 1) (in receivership), seeks to recall a judgment delivered on 16 December 2022.1

[2]                 The December 2022 judgments (a results and reasons judgment) arose from longstanding disputes between the trustees of the Link Trust (No. 1) on one hand and

1      Two judgments are involved: Body Corporate 68792 v Memelink & Forster [2022] NZHC 3489 [results judgment] and Body Corporate 68792 v Memelink & Forster [2022] NZHC 3498 [reasons judgment].

FORSTER v BODY CORPORATE 68792 [2025] NZHC 1094 [8 May 2025]

Body  Corporate  68792  on the other.   The Trust owned a number of units in the Body Corporate.

[3]                 The trustees had taken steps to disrupt the sale of Body Corporate units and had engaged in conduct that risked undermining the Body Corporate’s operations.2 Mr Memelink had also directly contacted insurance brokers and underwriters which risked the insurance cover being withdrawn, leaving the Body Corporate uninsured.3 The insurance was critical to the Body Corporate’s ability to sell units in the property.

[4]                 These actions prompted the Body Corporate to seek interim injunction orders to restrain the trustees. The Court granted an interim injunction to restrain the trustees from interfering with the  insurance  arrangements  of  Body  Corporate  68792  on 16 December 2022.

Legal principles

[5]                 The application for recall is made under r 11.9 of the High Court Rules 2016, which allows recall of a judgment before the formal record of it is drawn up and sealed. The leading statement in relation to applications for recall remains that of Wild CJ in Horowhenua County v Nash (No 2):4

Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty.

[6]                 Horowhenua County sets out three categories of cases where recall may be granted:

(a)Where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and  high authority.

(b)Where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance.

(c)Where for some other very special reason justice requires that the judgment be recalled.

2      The reasons judgment, above n 1, at [8].

3 At [4].

4      Horowhenua County v Nash (No. 2) [1968] NZLR 632 at 633.

[7]                 The underlying policy is to reconcile the broad ends of justice in relation to the particular case and the desirably of finality in litigation at first instance.5

Background

[8]                 Mr Memelink was adjudicated bankrupt in 20186 and this was later extended in 2023.7

[9]                 The Link Trust (No. 1) was placed into receivership by this Court in 2022 following years of litigation and disputes involving Mr Memelink, his trusts, and third parties related to the Body Corporate.8 The receivership was intended to facilitate the sale of properties without interference from the trustees, particularly Mr Memelink, who had repeatedly attempted to remove the receivers and challenge their authority. The history is set out in a judgment relating to an unsuccessful application by the Trust to remove the administrator on allegations against the administrator, lawyers, and others involved in the administration.9

[10]            The Court has issued orders restraining Mr Memelink from commencing or continuing civil proceedings relating to the Body Corporate 68792 for a period of three years from the date of that judgment (21 December 2023).10 He may not file proceedings by or against the Trust without consent of the receivers or leave of the Court following orders appointing receivers of the Trust. A term of the restraining orders is:11

… Preventing the respondent (in any capacity) from commencing or continuing any proceeding relating to the conduct or affairs of Body Corporate 68792 (including but not limited to the legality of any levies and lease disputes).

[11]            Ms Forster has also unsuccessfully tried to challenge Cooke J’s  decision of 16 December 2023 granting an injunction preventing a caveat lodged by Mr Memelink

5      Ashe v Tauranga Marina Society (1991) 4 PRNZ 89.

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

7      The Official Assignee v Memelink [2023] NZHC 3044 [bankruptcy extension decision].

8      Body Corporate 81,012 v Memelink (as Trustees of the Link Trust) (No 1) [2022] NZHC 1244 [receivership decision].

9      Body Corporate 68792 v Memelink and Forster [2023] NZHC 3637 [dismissal of application for removal of administrator decision].

10     Body Corporate 68792 v Memelink [2023] NZHC 3850.

11 At [139].

and Ms Forster being registered that would have prevented the anticipated sale of Trust properties by the receivers, including assertions that the Court was misled by lawyers and parties.12 La Hood J emphasised that in the application Ms Forster sought to revisit matters previously dealt with by the Court. The complaints were unsupported by evidence therefore it was inappropriate for the Court to take further actions.

Grounds for application for recall

[12]            Ms  Forster  initially  filed  an   interlocutory   application   for   recall   on  12 September 2024 with electronic hyperlinks to various documents.

[13]Ms Forster was given the opportunity to amend her initial application for recall.

In a minute of 13 September 2024, I said: 13

[7]  In view of the confused nature of Mr Forster’s application, it is an   abuse of process. I have considered whether it is appropriate to strike out the application for abuse of the process of the court.14 However, strike out is a serious step and given Ms Forster is an unrepresented litigant, it is appropriate she is given an opportunity to remedy the defects with the application and to arrange for service. Mr Memelink’s application however is struck out for reasons set out below.

[14]            Since these directions were made for Ms Forster has filed a number of documents including a further interlocutory application (with electronic hyperlinks to documents) dated 7 March 2025, and a synopsis of submissions dated 7 March 2025.

[15]            Ms Forster now seeks to recall the December 2022 judgments, alleging procedural errors, fraud, and irregularities in the judgment process. She claims that the originating application was not served, the proceedings were initiated under an expired case number and more improperly transferred to a new case number without judicial approval. Further, she alleges the judgment was unsealed and procedural rules were violated. Ms Forster argues that the injunction was improperly issued within a day, without sufficient time for service or review of documents, and that neither she nor Mr Memelink were properly served.

12     In Body Corporate 81012 v Memelink HC Wellington CIV-2021-485-419, 21 May 2024 (Minute of La Hood J) referred to in Body Corporate 81012 v Memelink [2024] NZHC 1547 at [10].

13     Forster v Body Corporate 68792 HC Wellington CIV-2022-485-802, 13 September 2024 (Minute of Grice J).

14     High Court Rules, r 7.42A.

[16]            Ms Forster further  alleges  fraud  by  the  Body  Corporate  administrator,  Mr Gambitsis, and legal representatives, asserting that the judgment was flawed and resulted in a miscarriage of justice.

[17]            Ms Forster has also filed various documents including a “confidential memorandum” dated 19 March 2025 with links to a “memorandum seeking adjournment” dated 19 March 2025 as well as a medical certificate and counsellor report.

[18]            This matter was set down for hearing on 24 March 2025. In a minute, I adjourned the hearing on Ms Forster’s application due to her being unwell. 15 I also noted in that minute, that the Body Corporate had sought the matter be dealt with on the papers and if Ms Forster consented to the that, I would do so. I directed Ms Forster to file reply submissions on or before 26 March 2025. I adjourned the application to 3 April 2025.

[19]            Ms Forster filed a document entitled “interlocutory application” (with hyperlinks) on 26 March 2025 and a further “memorandum” dated 27 March 2025.

[20]            Ms Forster filed a memorandum agreeing that the matter be heard on the papers with a link to a letter addressed to me personally dated 31 March 2025. These documents were received by on the Court on 1 April 2025.

[21]            The Court received another “confidential memorandum” from Ms Forster dated 2 April 2025, and another “memorandum” (with a hyperlink to an email) dated 4 April 2025.

[22]            I issued a minute on 2 April 2025 advising I would deal with the matter on the papers unless the respondent indicated it required a hearing.16 Mr Dewar for the respondent advised the Registrar that he did not seek to make any further submissions.

15     Re Body Corporate 68792 v Memelink HC Wellington CIV-2022-485-802, 21 March 2025 (Minute of Grice J).

16     Re Body Corporate 68792 v Memelink HC Wellington CIV-2022-485-802, 2 April 2025 (Minute of Grice J).

[23]            It is not appropriate for memoranda to be sent to the Judge on a confidential basis. It should be served on the other party. Therefore, I take no account of the “confidential” documents filed by Ms Forster.

Submissions on behalf of Body Corporate 68792

[24]In his submissions of 21 March 2025, Mr Dewar for the Body Corporate says:

Every unit owned by Link Trust previously in Body Corporate 68792 is sold and neither Forster nor Memelink have any ongoing interest in them.

The insurance arrangements subject to the Injunction Order of December 2022 have been superseded by other insurers and there is no utility, let alone proper interest in the matter on the part of Ms Forster.

[25]            Mr Dewar also points out that costs are owing by Ms Forster. This relates to a judgment concerning the application by Mr Memelink and Ms Forster as trustees seeking the removal of Mr Gambitsis, the Body Corporate administrator appointed by the  High  Court.17   Mr  Dewar  notes  that  Ms  Forster  knowledges  that  she  is   Mr Memelink’s co-trustee continuing to advance litigation claims in that capacity against the Body Corporate. Mr Dewar says that as a result of the non-payment of costs, a bankruptcy notice was issued and Ms Forster has filed an application to set aside the bankruptcy notice. She requested that she have Harry Memelink act as her “advocate” at the hearing. Mr Dewar’s submissions detail the complicated progress of the bankruptcy proceedings involving a number of adjournments.

[26]            In relation to the present application for recall, Mr Dewar notes that nothing in the narrative “quotes any authorities or properly describes any legal principle applicable to recall of a judgment”. He says that Ms Forster in the context of alleging that judgments against the Trust were fraudulently obtained refers to a judgment in Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd.18 However, that concerned a tax case in which the tax paying company sought to avoid liquidation and argued the Commissioner’s proceeding was an abuse of process. It has no application here.

17     Dismissal of application for removal of administrator decision, above n 9.

18     Commissioner of Inland Revenue (CIR) v Redcliffe Forestry Venture Ltd [2013] 1 NZLR 804; [2012] NZSC 94.

Analysis

[27]            The category of Horowhenua County relevant to the present recall application is “some other very special reason”.

[28]            The procedural issues raised have little substance. The injunction was sought as an urgent interim measure. Mr Memelink had filed extensive affidavit evidence and appeared in person on behalf of the Trust making detailed submissions, demonstrating that the trustees were aware of the proceedings and responded formally. The judgment was only an interim one. But it appears it was never pursued to a final hearing stage, an option open to the trustees at the time. The fact the judgment was not sealed has no relevant to their application for recall.

[29]            The trustees had opportunities to present their case at the interim stage. They could have pursued the matter to a final determination. They also had the option of pursuing an appeal.

[30]            The substantive issues raised by Ms Forster largely rehearse the issues that have already been dealt with in judgments including in relation to the appointment and removal of the administrator, Mr Gambitsis.

[31]            Ms Forster also raises broader allegations concerning the administration of the Body Corporate, the conduct of the receivers, and the actions of Mr Memelink’s legal advisers. She refers to a judgment in CIV-2024-485-497, which she claims invalidates Mr Memelink’s bankruptcy and all subsequent legal actions. These are allegations made in an attempt to relitigate issues that have already been determined in many earlier judgments.

[32]            Ms Forster has chosen to take on the obligations of a trustee and to support Mr Memelink in his endeavours to pursue disputes which have already been the subject of extensive litigation not only in this Court but also in the Court of Appeal and in the Supreme Court. She continues to support Mr Memelink including requesting that Mr Memelink act as her “advocate” in related proceedings according to the submissions of the Body Corporate.

[33]            In her letter the court of 31 March 2025, she acknowledges that she is "out of [her] depth in legal proceedings" and has been unable to afford legal representation. She expresses frustration with the legal system and the outcomes of the litigation but concedes that her recall application is unlikely to succeed.

Conclusion

[34]            Nothing raised by Ms Forster provides grounds for recall under r 11.9 of the High Court Rules. The application is made two years after the interim judgments, the matter never went to a final hearing, and the units which to which the judgments relates have been sold. In essence the applicant seeks to relitigate matters which have been determined in earlier judgments. The application for recall is clearly an abuse of the Court’s process.

[35]The application for recall is declined.

Grice J

Solicitors:

Thomas Dewar Sziranyi Letts, Lower Hutt for Respondent