Grindlay v Memelink - [2017] NZCA 520

IN THE COURT OF APPEAL OF NEW ZEALAND

CA592/2016
[2017] NZCA 520

BETWEEN	ROBYN GRINDLAY Appellant
AND	HARRY MEMELINK Respondent

Hearing:	24 July 2017 (further submissions received 17 October 2017)
Court:	French, Simon France and Toogood JJ
Counsel:	J D Haig for Appellant Q S Haines for Respondent
Judgment:	16 November 2017 at 2.30 pm

JUDGMENT OF THE COURT

AThe appeal is allowed, the decision of the High Court is set aside and the proceedings are remitted to the High Court for rehearing.
BThere is no award of costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

Robyn Grindlay’s husband signed a written agreement to purchase shares in a scrap metal company from Mr Memelink. Although Mrs Grindlay was not a signatory to the agreement, her name appeared with that of her husband on the front page as the purchaser.
In the High Court, Collins J held Mrs Grindlay was a party to the contract.[1] The Judge further found that Mr and Mrs Grindlay had breached the contract and were liable in damages to Mr Memelink in the sum of $176,786.67.
[1]Memelink v Grindlay [2016] NZHC 2589 [HC decision].
Mrs Grindlay now appeals that decision. Mr Grindlay is bankrupt and took no part in the appeal.

Background

Mr Memelink was the sole director and shareholder of a scrap metal recycling company called DM Recyclink Ltd (DM Recyclink). The company operated from premises in Lower Hutt at Seaview Road. The property was owned by a trust associated with Mr Memelink (the Link Trust).
In early 2013, Mr Malcolm Grindlay approached Mr Memelink and expressed an interest in buying the business. Negotiations then ensued. There were face to face discussions and email exchanges. Mrs Grindlay was involved in some but not all of the discussions. She was copied into some of the emails and also accompanied her husband on at least one visit to the scrap yard. She was also present at a meeting held with Mr Memelink at the Grindlays’ home prior to the contract being signed.
According to Mr Memelink’s evidence, Mr and Mrs Grindlay made it clear they would both be buying the business. According to the Grindlays’ evidence however, they both made it clear to Mr Memelink from the outset that Mrs Grindlay would not be a party to any purchase. The Grindlays claimed it was always understood Mrs Grindlay’s only role in the business would be administrative and that she was adamant to Mr Memelink about not wanting to be a purchaser.
On either 12 or 13 April 2013, Mr Memelink and Mr Grindlay signed an agreement for the sale of Mr Memelink’s shares in DM Recyclink. The front page was headed “[a]greement made this 12th day of April 2013”. Most of the front page was typed, with some handwritten notations. It recorded amongst other things the following:
· Harry Memelink was the vendor (his name was in type);
·Malcolm and Robyn Grindlay were the purchaser (those names both being handwritten, not typed);
·Mr…

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 Grindlay v Memelink

Details

AGLC: Grindlay v Memelink [2017] NZCA 520
Case: [2017] NZCA 520
Decision Date: 16 November 2017 at 2.30 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Robyn Grindlay appeals against a decision of the High Court that found her to be a party to a contract for the purchase of shares in a scrap metal recycling company from Harry Memelink. The central issue before the Court of Appeal was whether Robyn Grindlay was indeed a party to the contract, despite not having signed it and being absent when it was signed by her husband, Malcolm Grindlay. The Court of Appeal found that the High Court's decision was flawed due to incomplete analysis, gaps in evidence, and failure to put material matters to witnesses. The appeal was allowed, the decision of the High Court was set aside, and the proceedings were remitted to the High Court for rehearing.

The Court of Appeal identified several issues with the High Court's decision. Firstly, there was a conflict in the evidence regarding whether Robyn Grindlay was a party to the contract and who was responsible for inserting her name on the contract. The Court of Appeal found that the High Court did not make an express credibility finding on the conflicting evidence. Secondly, the Court of Appeal found that the High Court did not address the significance of Robyn Grindlay's absence of signature on the contract and the basis for her husband's authority to sign on her behalf if that was the case. Thirdly, the High Court did not analyse the significance of the amendment page to the agreement, which only mentioned Malcolm Grindlay as the purchaser. Lastly, the Court of Appeal found that the High Court made an error of fact about the two cheques being signed by Robyn Grindlay, when in fact, they were signed by Malcolm Grindlay.

The Court of Appeal found that there was evidence supporting both parties' positions and that the High Court's decision did not provide a detailed credibility analysis. The Court of Appeal considered it unable to do so themselves with any degree of confidence based on the written record. The Court of Appeal concluded that the only just solution was to allow the appeal, set aside the judgment, and order the proceedings to be remitted to the High Court for a complete rehearing.

Orders