Forster v Body Corporate 68792

[2025] NZHC 980

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2025-485-147 [2025] NZHC 980

BETWEEN

CISCA FORSTER

First Plaintiff

LINK TRUST NO 1
Second Plaintiff

AND

BODY CORPORATE 68792

First Defendant

PETER MARTENS (SYNERGY ENTERPRISES LIMITED)

Second Defendant

JAMES McKERNAN
Third Defendant

DAVID GERARD DEWAR

Fourth Defendant

STEVEN SCHECKTER (SCHECKTER FAMILY TRUST)

Fifth Defendant

HUGH & LIZ MIDDLETON
Sixth Defendant

FIONA MARION GILLESPIE

Seventh Defendant

CIV-2025-485-148

BETWEEN

CISCA FORSTER

First Plaintiff

LINK TRUST NO 1

Second Plaintiff

AND

ROBERT GARY NAYLOR

First Defendant

CISCA FORSTER v BODY CORPORATE 68792 & ORS [2025] NZHC 980 [28 April 2025]

BODY CORPORATE 68792

Second Defendant

HIGH COURT WELLINGTON

Third Defendant

DAVID GERARD DEWAR

Fourth Defendant

ATTORNEY-GENERAL

Fifth Defendant

CIV-2025-485-149

BETWEEN

CISCA FORSTER

Plaintiff

AND

BODY CORPORATE 68792

First Defendant

ANTHONY GAMBITSIS

Second Defendant

GAMBITSIS CROMBIE LIMITED

Third Defendant

ROY BASSETT BURR

Fourth Defendant

DAVID GERARD DEWAR

Fifth Defendant

ALWYN O’CONNOR
Sixth Defendant

STEPHEN IORNS

Seventh Defendant

Hearing:	On the Papers
Appearances	Applicant in Person
Judgment:	28 April 2025

JUDGMENT OF McQUEEN J

[1]    On 8 December 2024, Ms Cisca Forster sought to  file  three  proceedings. Ms Forster  is  named  as  the  first  plaintiff,  as  trustee  of  the  Link  Trust  No 1 (the Link Trust). The Link Trust is Mr Harry Memelink’s family trust, and he is a beneficiary of it.1 The Link Trust is named as second plaintiff in two of the proceedings. Each statement of claim names several defendants. Ms Forster has also filed an affidavit in each proceeding, although the content of each affidavit appears to be identical.

[2]    The Registrar has referred the proceedings to me  under  r 5.35A  of  the  High Court Rules 2016 (the Rules) on the basis of a belief that, on their face, they are plainly an abuse of the process of the Court.

[3]    The three proceedings can be considered together as they each relate to issues connected to Body Corporate 68792 (the Body Corporate). The Body Corporate is responsible for a multi-unit commercial premises in Lower Hutt. The defendants named are all parties who are  connected  in  some  way  with  litigation  between  Ms Forster and Mr Memelink, on the one hand, and the Body Corporate or persons associated with it, on the other.

The statements of claim

[4]    The statements of claim are wide-ranging in the parties joined as defendants and in the allegations made. I endeavour to describe the defendants and the key elements of the claims below.

[5]    In the CIV-2025-485-147 proceeding (Martens), claims are made against officers of the Body Corporate and Mr Dewar as solicitor for the Body Corporate. It is alleged that the defendants have breached their duties of care to the Body Corporate and breached the requirements of the Unit Titles Act 2010. It is also alleged that “the plaintiff’s voting rights and rights to chair the Body Corporate” have been “hijacked” and “blocked”. Some of the statement of claim appears to have been copied from

1      Body Corporate 68792 v Memelink [2023] NZHC 3850 at [1] (Civil restraining order decision).

another court document, as it refers to the plaintiff in the singular and uses the pronoun “he” in reference to the plaintiff.

[6]    In the CIV-2025-485-148 proceeding (Naylor), the statement of claim names Mr Naylor, the Body Corporate, the Wellington High Court, Mr Dewar and the Attorney-General as defendants. The claim asserts that Mr Naylor, the second court appointed administrator for the Body Corporate, acted fraudulently, deliberately misled the Court and breached his duty as an officer of the Court. The claim alleges a judgment was fraudulently obtained in CIV-2015-485-202 when Mr Naylor was appointed as administrator. The claim alleges that the Body Corporate was “continuously defrauded and abused” by Body Corporate officers, lawyers and officers of the Court.

[7]    In the CIV-2025-485-149 proceeding (Gambitsis), the statement of claim names  Mr Gambitsis,   Gambitsis   Crombie   Ltd,   Mr Bassett-Burr,   Mr Dewar, Mr O’Connor and Mr Iorns as defendants. Mr Dewar, Mr O’Connor and Mr Iorns were solicitors alleged to be involved with the Body Corporate. Mr Gambitsis was an accountant involved with the Body Corporate. Broadly, it is alleged that Mr Gambitsis’ failure to seal the order of the Court  appointing  him  as  administrator  for  the  Body Corporate mean his actions between 5 October 2017 and 9 October 2023 are all “invalid and effectively void”. It is also said Mr Gambitsis knowingly misled the Court by not advising the Court or Mr Memelink that there was a conflict of interest in him being the administrator for the Body Corporate. It is alleged that Mr Bassett-Burr failed in his director’s duties as a director of Lynx Trustees Ltd which impacted on the Link Trust. It is alleged that Mr O’Connor committed fraud and was not entitled to act (although for whom is unclear) as he was not instructed by his supervising solicitor Mr Iorns. The allegations as pleaded in relation to Mr Naylor in Naylor are duplicated. It is alleged that an earlier judgment in CIV-2019-485-066 was fraudulently obtained.

[8]    Relief sought in all three proceedings is described as “global damages” which asserts person, business and general losses, among other things, extending to a replacement yacht valued at $2.7–3.5 million and wealth loss of the companies associated with Mr Memelink and the Link Trust. In Martens, further relief is sought including reimbursement for unapproved levies, incorrectly authorised accounts and

any legal fees in relation to the Body Corporate. The claim also seeks certain outcomes of voting at Body Corporate meetings to be ruled valid or invalid, and “all Body Corporate court proceedings past and current” against Mr Memelink and others to be withdrawn, set aside or deemed invalid, along with all “incorrect and disputed [Body Corporate] decisions and court orders to be reversed”. In addition, damages for slander and defamation are sought.

Ms Forster’s affidavit

[9]    Ms Forster’s affidavit relies on the content and exhibits  of an affidavit  of  Mr Memelink dated 20 September 2024 and its extensive exhibits. Ms Forster deposes that Mr Memelink’s affidavit is true and correct, and she agrees with it. Ms Forster also exhibits an affidavit by Mr Bassett-Burr dated 25 October 2024. The affidavits of Mr Memelink and Mr Bassett-Burr were filed in other proceedings relating to the Body Corporate.

[10]In broad terms, Ms Forster’s affidavit:

(a)says Mr Dewar did not have the permission of the unit owners to act for the Body Corporate;

(b)questions whether Mr Dewar’s law firm has insurance for giving damaging advice;

(c)says she is concerned about the Body Corporate’s insurance as she says no building warrant of fitness was completed;

(d)says the evidence shows Mr Memelink’s bankruptcy was meritless;

(e)alleges Mr Dewar, Mr Gambitsis, Mr Haines and Mr O’Connor all obtained judgments fraudulently and committed serious crimes; and

(f)alleges the Body Corporate’s receivers failed in their duties as they were aware of everything.

Relevant law

[11]   If I consider that any (or all) of the statements of claim plainly amount to an abuse of process, under r 5.35B of the Rules, I may make orders or give directions to ensure the proceedings are disposed of or proceed in a manner that complies with  the Rules, including striking out or staying the proceedings under r 15.1 of the Rules.

[12]   In Mathiesen v Slevin this Court explained that deciding whether to strike out a proceeding under these rules involved determining the following questions:2

(a)Whether it would be manifestly unfair to the respondents that they be required to respond; and

(b)Whether right thinking people would regard this Court as exercising very poor control of its processes if it were to allow the applicants’ document to be regarded as a proper document.

[13]   In O’Neill v Judicial Conduct Commissioner, the Court of Appeal reworded the second limb slightly to ask whether right thinking people would regard the Court as exercising very poor control over its processes if it permitted the matter to proceed further.3 That was because the expression of the second limb in Mathiesen was inapt in a case not focused on obvious irregularities on the face of a document.

[14]   The power under r 5.35B must be exercised sparingly, and only in the clearest of cases, given that the rule contemplates a litigant being denied the fundamental right of access to the courts, with the possibility of the proceeding being halted before it is even served.4

[15]      A claim that seeks to relitigate claims that have been determined already will be an abuse of process.5

2      Mathiesen v Slevin [2018] NZHC 1032, (2018) 25 PRNZ 116 at [6] citing Mathiesen v Fildes

[2017] NZHC 2258 at [4].

3      O’Neill v Judicial Conduct Commissioner [2023] NZCA 152 at [30].

4      Te Wakaminenga o Nga Hapu ki Waitangi v Waitangi National Trust Board [2023] NZCA 63 at [15].

5      See, for example, Young v Ross [2023] NZHC 2795, where the plaintiff attempted to use a judicial review proceeding to resurrect claims that had been dealt with conclusively and was struck out accordingly. See also Re McNab [2018] NZHC 1817, (2018) 24 PRNZ 224, where a proposed proceeding sought to collaterally challenge, and raise issues that had been dealt with already in, previous judgments of the Court. It was held to be plainly an abuse of process.

Litigation history

[16]             The proceedings must be considered against the background of the ongoing litigation involving Ms Forster, Mr Memelink, the Link Trust and the Body Corporate and associated parties. The extensive litigation history has been outlined previously by Grice J.6

[17]             In relation  to  Mr Memelink’s  conduct  during  a  proceeding  brought  by Mr Memelink against the receivers of the Link Trust, Grice J explained that:7

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.

[18]             On 21 December 2023, in Body Corporate 68792 v Memelink, Grice J restrained Mr Memelink from commencing or continuing civil proceedings relating to the Body Corporate.8  Of note  is Grice J’s  observation that  the  manner in which  Mr Memelink carried out litigation relating to the Body Corporate for a number of years had all the hallmarks of vexatious litigation.9

[19]             On 20 December 2024, in a decision where Ms Forster’s pleading was struck out and the proceeding dismissed as contemplated under r 5.35B of the Rules, Radich J explained that:10

[21]   Ms Forster has continued to make applications in which she has sought to challenge aspects of the previous proceedings. It would appear that, since Mr Memelink has been restrained from commencing or continuing proceedings relating to the Body Corporate without leave, Ms Forster has commenced or continued proceedings on his behalf. For example, in the 2022 proceeding, Ms Forster has, recently, applied for a recall of a decision of

6      Body Corporate 81012 v Memelink [2023] NZHC 1749; and Civil restraining order decision, above n 1.

7      Body Corporate 81012 v Memelink, above n 6, at [12].

8      Civil restraining order decision, above n 1, at [139].

9 At [129].

10     Forster v Dewar [2024] NZHC 3995.

Grice J in 2022. Justice Grice summarised the application in the following way:11

Ms Forster’s application sets out several grounds in support of her “application for an order recalling and dismissing the interlocutory application and judgment”. These include that no originating application was served and no directions were made; that the administrator had no rights to act on the judgment of 16 December 2022 as it was not sealed; and that the “application” was invalid due to procedural errors, and fraud by Mr Gambitsis and his lawyer.

[22]   Justice Grice was of the view that the “confused nature” of the application meant that it was an abuse of process. She declined to strike out the proceeding at that point on the basis that Ms Forster was an unrepresented litigant, giving her instead the opportunity to remedy defects. In the same decision, Grice J struck out a similar application by Mr Memelink for being an abuse of process.12

[20]             I turn now to consider Ms Forster’s statements of claim against this background.

Analysis

[21]             The statements of claim do not  comply  with  the  formal  requirements  of the Rules, including failing to show adequately the nature of the claims or inform  the Court or the defendants as to the causes of action. No claims are articulated against some of the named defendants.

[22]             It is unclear why Ms Forster brings a claim as a trustee of the Link Trust and then also names the Link Trust as a plaintiff. This Court has previously found that  Ms Forster was a trustee in name only, that she played no substantive role in the conduct of the Link Trust’s affairs and the only reason for her role as trustee was her close relationship with Mr Memelink.13

[23]             The statements of claim are overlapping and repeat many of the claims which have already been determined by the Court, as mentioned above. This repetition is further demonstrated by the content of the affidavit of Ms Forster and the affidavits of

11     Forster v Body Corporate 68792 HC Wellington CIV-2022-485-802, 13 September 2024 (Minute of Grice J) at [5].

12     At [7] and [12].

13     Body Corporate 81012 v Memelink, above n 6, at [93] and [94] referring to Body Corporate 81012 v Memelink [2022] NZHC 1244 at [68]–[69].

Mr Memelink and Mr Bassett-Burr on which she seeks to rely, which have been filed in other proceedings. It appears aspects of the pleadings are duplicated from other court documents given the references to a single plaintiff and the use of the pronoun “he” to refer  to  that  plaintiff.  I  consider  these  are  likely  to  be  references  to  Mr Memelink made in court documents filed in other proceedings. Overall, the statements of claim have a focus of seeking to challenge judgments given in other proceedings.

[24]             Claims relating to Body Corporate members breaching their various obligations were originally brought by Mr Memelink and have been dealt with by the Tenancy  Tribunal,  the  District  Court,  this  Court   and  the   Court of Appeal.14   Mr Memelink was ultimately unsuccessful in those applications and appeals.

[25]             Further, the claims that Mr Gambitsis failed to seal the order of the Court appointing him as administrator of the Body Corporate have also already been decided by this Court.15 Justice Grice has found that any defects in the process did not make the appointment of Mr Gambitsis null and void.16 The claims that Mr Dewar did not have the authority to act for the Body Corporate were also dealt with in the same judgment, where Mr Memelink’s application was dismissed as being an abuse of process.17 These repeated allegations were also struck  out  by  Radich J  in December 2024 as an abuse of process.18 Ms Forster seeks to raise the same issues in these proceedings, which is a further abuse of process.

[26]             The allegations aimed at challenging the administration of the Body Corporate are again repetitious. For example, the allegation that the receivers of the Link Trust did not investigate Mr Naylor for the alleged unlawful transfer of funds due to being a client of the company the receivers worked for has been determined. Justice Grice

14     The extensive history of these proceedings is described in the Civil restraining order decision, above n 1, at [45]–[97] and [102]–[109].

15     Body Corporate 68792 v Memelink [2023] NZHC 3637 at [51]; and Civil restraining order decision, above n 1, at [30]–[31].

16     Body Corporate 68792 v Memelink, above n 15, at [51].

17 At [31].

18     Forster v Body Corporate 68792, above n 10, at [25].

held that there was no conflict of interest as “the relationship between Mr Naylor and the receivers is distant and for all practical effects non-existent”.19

[27]             The claim against Mr Bassett-Burr having breached his directors’ duties seems to be a new variation on the claims brought to date by Mr Memelink and his associates. However, there is no detail pleaded. In addition, the manner in which these allegations are made, being randomly added to an omnibus claim directed at the actions of the administrator in an attempt to reopen matters which have already been determined by the Court, is improper.

[28]             Overall, the proceedings involve claims about officers, administrators and advisers of, and counsel for, the Body Corporate and the Link Trust. These are claims that that have been extensively canvassed before the courts in other proceedings. Using the words of Radich J, they are all part and parcel of other proceedings, and it will be an abuse for a plaintiff to bring concurrent proceedings relating to the same subject matter.20

[29]             I conclude that the statements of claim in the three proceedings are plainly an abuse of process of the Court. It would be manifestly unfair to require the defendants in the proceedings to respond to these claims through court processes. In addition, if these proceedings were to be allowed to continue further, right thinking people would regard the Court as exercising very poor control over its processes.

Result

[30]The pleadings are struck out and the proceedings are dismissed.

[31]             In accordance with r 5.35B(3), I record that Ms Forster has a right to appeal this decision.

19     Body Corporate 81012 v Memelink, above n 6, at [86]–[87].

20     Forster v Body Corporate 68792, above n 10, at [26] citing Dunstan v Auckland High Court

[2022] NZCA 478 at [13].

[32]             In accordance with r 5.35B(4), I direct the Registrar to provide a copy of this decision to the defendants, if practicable.

McQueen J