Grindlay v Memelink - [2017] NZCA 243

IN THE COURT OF APPEAL OF NEW ZEALAND

CA592/2016
[2017] NZCA 243

BETWEEN	ROBYN GRINDLAY Appellant
AND	HARRY MEMELINK Respondent

Counsel:

J D Haig for Appellant
Q S Haines for Respondent

Judgment:

(On the papers)

12 June 2017 at 3 pm

JUDGMENT OF COOPER J
(Review of Registrar’s Decision)

AAn extension of time in which to file the application for review of the Registrar’s decision dispensing with security for costs is granted.
BThe application to review the Registrar’s decision dispensing with security for costs is declined.

____________________________________________________________________

REASONS

Introduction

The appellant, Mrs Grindlay, filed an appeal against a decision of the High Court delivered on 31 October 2016.[1] She applied to the Registrar to dispense with security for costs under r 35(6) of the Court of Appeal (Civil) Rules 2005. Her application was granted by Deputy Registrar McGrath (the Registrar).
[1]Memelink v Grindlay [2016] NZHC 2589.
Mr Memelink, who was the successful plaintiff in the High Court, has applied for a review of the Registrar’s decision. His application was filed 10 days later than it should have been filed under r 7(3). Under r 5(2) there is power to extend the time appointed by the Rules for taking any step in a proceeding. Counsel for Mr Memelink, Mr Haines, proffers that the time limit was not met because his prior commitments meant he was unable to comply with the limit of 10 working days set under r 7(3). For Mrs Grindlay, Mr Haig submits that this is an inadequate explanation, and her stance is not without merit. However, there is no prejudice as a result of the delay and I am satisfied that an extension of time should be granted in the interests of justice.

The High Court judgment

The High Court proceeding was commenced by Mr Memelink against both Mrs Grindlay and her husband, Mr Grindlay, a bankrupt. The Judge determined four issues against the Grindlays. The Judge found that both were purchasers under a contract for the sale and purchase of Mr Memelink’s shares in a company called DM Recyclink Ltd, that they had repudiated but not cancelled the contract, that Mr Memelink was entitled to damages in the sum of $176,786 and interest, and that Mrs Grindlay had defamed Mr Memelink and should pay damages in the sum of $100.

Security for costs

Deputy Registrar McGrath made her decision applying the principles summarised in Reekie v Attorney-General.[2] In terms of the relevant considerations set out in Reekie, the Registrar found first that the appeal is not hopeless.
[2]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.
The Registrar recorded her view that the Judge’s conclusions were fully reasoned, referring to his conclusion that it was inconceivable Mr Grindlay would have permitted Mrs Grindlay’s name to be recorded on the contract as a purchaser if she were not a party. She thought it was unlikely that finding would be overturned on appeal. However, she noted Mrs Grindlay’s contentions that the…

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 243
Case: [2017] NZCA 243
Decision Date: 12 June 2017 at 3 pm

CaseChat Overview and Summary

In the appeal of Robyn Grindlay against Harry Memelink, the Court of Appeal reviewed a decision made by the Registrar concerning security for costs. Mrs Grindlay had appealed against a High Court decision, and applied to the Registrar for a dispensation from security for costs under Rule 35(6) of the Court of Appeal (Civil) Rules 2005. The application was granted by Deputy Registrar McGrath. Mr Memelink sought to review the Registrar's decision, arguing that the application was filed outside the stipulated time period. He explained that his failure to meet the deadline was due to prior commitments. Mrs Grindlay's counsel argued that this explanation was insufficient, but the Court was satisfied that the delay did not prejudice the outcome and granted an extension of time. The legal issues before the Court were whether the appeal had any merit and whether Mrs Grindlay’s financial situation justified dispensing with security for costs. The Court found that the appeal had some merit and that Mrs Grindlay’s financial situation was exceptional enough to justify dispensing with security for costs. The Court held that the appeal had “some merit” and was “not hopeless” because there were grounds of appeal that seemed arguable. The Registrar had properly considered the relevant factors and applied the principles set out in Reekie v Attorney-General. The Court also concluded that Mrs Grindlay’s financial situation justified dispensing with security for costs. The Court was satisfied that the appeal was not hopeless and that a reasonable and solvent litigant would proceed with the appeal. The Court declined to review the Registrar’s decision and declined Mr Memelink’s application to review the decision dispensing with security for costs.

Orders