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Forster v Haines

Forster v Haines

Case [2022] NZHC 549 23 March 2022

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-459

[2022] NZHC 549

BETWEEN
CISCA FORSTER and

HARRY MEMELINK as trustees of the Link Trust (No. 1)
Applicants

AND

QUENTIN STOBART HAINES

First Respondent

BPE TRUSTEES (NO. 1) LIMITED
Second Respondent

EASTLIGHT ASSET TRADING NO. 5 LIMITED

Third Respondent

STOBART HOLDINGS LIMITED

Fourth Respondent

CIV-2021-485-457

BETWEEN

CISCA FORSTER and

HARRY MEMELINK as trustees of the Link Trust (No. 1)

Applicants

AND

STOBART HOLDINGS LIMITED

Respondent

Hearing: 15 March 2022

Counsel:

D Livingston for Applicants in both proceedings Q S Haines in person

J D Dallas for Second and Third Respondents
A O’Connor for Stobart Holdings Limited in both proceedings

Judgment:

23 March 2022

FORSTER & ANOR v HAINES & ORS [2022] NZHC 549 [23 March 2022]

JUDGMENT OF CHURCHMAN J

The applications

[1] On 12 August 2021, the applicants filed an originating application for an order that a caveat not lapse. The caveat in question was Caveat/Notice of claim 12113911.1 over a property situated at 29B Eastern Rise, Manakau (the property).

[2] The application also sought relief by way of an interim order that the caveat not lapse if the substantive application could not be determined before 9 September 2021. By a minute of 1 September 2021, Johnston AJ made such an interim order.

[3] The applicants made a further application. On 14 January 2022, the applicants sought in addition or alternatively, an interim injunction restraining the fourth respondent from disposing the property or entering into any security arrangement in respect of it. Both the caveat and injunction applications are addressed in this decision.

Background

[4] Mr Harry Memelink, one of the trustees of the applicant Trust, and Mr Quentin Haines, the first respondent, were once friends. Mr Haines was previously a solicitor and had provided litigation services to Mr Memelink. He was not Mr Memelink’s only solicitor at the times relevant to these proceedings. Mr Memelink also used other solicitors including Collins and May, Mr Brendon McDonnell of Petone Law and Mr Fintan Devine of Devine Law for commercial and conveyancing matters. Mr Memelink and Mr Haines intertwined their business and personal affairs in a way that went well beyond the boundaries of any normal professional relationship.

[5] The arrangement for payment for professional services provided by Mr Haines to Mr Memelink also appears, at times, to have had some highly unorthodox components, including the provision of professional services by Mr Haines in return for various financial accommodations by Mr Memelink or his interests.

[6] It is one of these transactions that has ultimately led to these applications being made.

The transaction

[7] Mr Memelink provided a guarantee in relation to certain borrowing entered into by Mr Haines. The details of that borrowing are set out in the decision of Grice J in Memelink v Haines.1

[8] All that need be said for the purposes of this decision is that there were three loans involved: two from Fico Finance…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Forster v Haines

Details

AGLC: Forster v Haines [2022] NZHC 549
Case: [2022] NZHC 549
Decision Date: 23 March 2022

CaseChat Overview and Summary

In Forster v Haines, the applicants sought to prevent the lapse of a caveat over a property and an interim injunction against the current owner to restrain him from disposing of or entering into any security arrangements in respect of the property. The applicants claimed that they had an interest in the property as a result of a second mortgage which had been transferred to them under the Property Law Act 2007. The applicants further claimed that the current owner of the property had obtained it by fraudulent means. The court was required to determine whether there was a reasonably arguable case of fraud sufficient to support the interest which the caveator claimed and whether the balance of convenience weighed in favour of granting an interim injunction. The court found that the applicants had failed to establish a reasonably arguable case of fraud and dismissed both the application to prevent the caveat from lapsing and the application for an interim injunction. The applicants were also unable to establish a serious question to be tried in relation to the interim injunction, and the balance of convenience weighed against granting the injunction. The court found that damages would be an adequate remedy and that the applicants had not provided sufficient information to enable the court to assess the worth of any undertaking as to damages.

Orders