Haines v Memelink - [2021] NZHC 1063

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-315

[2021] NZHC 1063

BETWEEN
QUENTIN STOBART HAINES

First Applicant

BPE TRUSTEES (NO 1) LIMITED
Second Applicant

QUENTIN HAINES PROPERTIES LIMITED
Third Applicant

AND

HARRY MEMELINK and LYNX TRUSTEES LIMITED

Respondent

On the papers:

Counsel:

J D Dallas for Applicants

D G Livingston for Respondent

Judgment:

13 May 2021

JUDGMENT OF CHURCHMAN J (COSTS)

Introduction and background

[1] On 30 August 2019, I awarded costs against Mr Bassett-Burr in respect of a successful application by the applicants (Mr Haines, BPE Trustees (No 1) Ltd and Quentin Haines Properties Ltd) to set aside five statutory demands served on them by the respondents, the trustees of Link Trust (No. 1).1

1 Haines v Memelink [2019] NZHC 2169.

HAINES & ORS v MEMELINK & ANOR [2021] NZHC 1063 [13 May 2021]

[2] While Mr Bassett-Burr was not a party to that application, costs were awarded against him as a non-party, on the basis that he had signed the statutory demands in question in his capacity as a director of a corporate trustee of the Link Trust (No. 1).2 I held that these demands had been issued improperly, and that under the law, ought to have not been issued at all.3 Costs on a 2B scale, with an uplift of 50 per cent to reflect the conduct of the parties, were ordered.

[3] Mr Bassett-Burr then appealed to the Court of Appeal, which found that before costs were awarded against a non-party, an application on notice should be made against that party, and that in this case, insufficient notice had been provided to Mr Bassett-Burr.4 As a result, the costs order against him was set aside.

[4] The applicants sought leave to appeal this decision to the Supreme Court, but their application for leave was denied.5

[5] The applicants have now filed a memorandum seeking costs against the trustees of the Link Trust (No. 1) – namely Mr Memelink and Ms Forester (whose name at times also seems to be spelt “Forster”). Ms Forester appears to have replaced Lynx Trustees Ltd as a trustee of the Link Trust (No. 1), and also appears to have been added as a party to the applicants’ application for leave to appeal to the Supreme Court.

[6] In his submissions to the Court on this costs order, counsel for Mr Memelink, Mr Livingston, indicated that these proceedings would need to be updated under r 4.56 of the High Court Rules 2016 to add Ms Forester as a party, while Mr Dallas (counsel for Mr Haines) submitted that he expected that “Mr Livingston will confirm that Ms Forester has consented to be joined as a party to these proceedings as a trustee”.

2 The first two demands were signed by Mr Bassett-Burr only, on behalf of the Lynx Trustees Ltd, while the latter three notices were signed by both Mr Memelink and Mr Bassett-Burr.
3 Haines v Memelink, above…

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.

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Details

Case: [2021] NZHC 1063
Decision Date: 13 May 2021

CaseChat Overview and Summary

The case of Haines v Memelink involved the applicants, Quentin Stobart Haines, BPE Trustees (No 1) Limited, and Quentin Haines Properties Limited, seeking costs against the respondents, Harry Memelink and Lynx Trustees Limited. The applicants had previously successfully applied to set aside five statutory demands served on them by the respondents, leading to a costs order against the respondents. The Court of Appeal later set aside the costs order against Mr Bassett-Burr, a non-party, due to insufficient notice. The applicants now sought costs against the trustees of the Link Trust (No. 1), Mr Memelink and Ms Forester. The applicants argued for a 50% uplift on a 2B scale of costs, citing the improper issuance of the statutory demands and the conduct of the respondents. They proposed a total of $25,991.25 in costs and $1,230 in disbursements. Mr Memelink, represented by Mr Livingston, opposed the costs, arguing for a 50% deduction on a 1A scale, citing the simplicity of the matter and the lack of opposition. He also sought to reserve the decision on costs until a summary judgment decision regarding the loans owed by the applicants to the respondents. The Court considered the relevant law and the authorities cited, ultimately rejecting the arguments for a reduction in costs and awarding $21,689.25 in costs and $1,230 in disbursements to the applicants. The Court also noted that there was no basis for joining Ms Forester as a party to the proceedings.

Orders