Haines v Memelink - [2020] NZHC 188

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-962

[2020] NZHC 188

BETWEEN
QUENTIN STOBART HAINES

First Applicant

AND

BPE TRUSTEES (NO. 1) LIMITED

Second Applicant

AND

HARRY MEMELINK

First Respondent

AND

LYNX TRUSTEES LIMITED

Second Respondent

Hearing: On the papers

Counsel:

F E Geiringer for Applicant First Respondent in Person

M L Clarke-Parker for Second Respondents (excused) P R W Chisnall for Official Assignee (excused)

Judgment:

17 February 2020

JUDGMENT OF GRICE J

(Costs)

[1] I awarded costs in favour of Mr Memelink (a litigant in person) on the discontinuance of the proceedings by the applicants.

[2] Mr Memelink opposed the application for discontinuance and also sought costs in the event that the application for discontinuance was successful. I granted leave to discontinue the proceedings.1

1 Haines v Memelink [2019] NZHC 2802.

HAINES v MEMELINK [2020] NZHC 188 [17 February 2020]

[3] Mr Memelink’s application for costs was opposed on the basis he was a litigant in person. My judgment went into some detail on that issue. I concluded that Mr Memelink was entitled to claim his actual and reasonable disbursements.2 I requested that Mr Memelink file an itemised schedule and supporting receipts or other “written proof of the incurring of each of the disbursements and of the nature of the services provided (in detail in the case if any claim for legal expenses as outlined above)” for his claims.3

[4] Mr Memelink claimed he had incurred fees with a legal firm in the preparation of his documents for these proceedings. I said:4

[66] … the involvement of the law firm Holland Beckett is obscure. It is not apparent how that firm has been involved in these proceedings. Mr Memelink personally has filed a number of memoranda since the granting of the interim injunction but these were largely by way of updating and were not generally of assistance in progressing the proceeding.

[5] Following my judgment allowing the discontinuance Mr Haines applied for costs on the successful application.

[6] Mr Memelink’s claim set out in his memorandum dated 12 November 2019 totalled $14,631.11.

[7] The criticisms made of Mr Memelink’s claim fall under a number of heads as follows:

(a)Legal advice cost. The invoice of Holland Beckett contained no specific reference to legal assistance in these proceedings except for relating to the incorrect sealing of the interlocutory order. Mr Haines said this was not a step in the substantive proceedings and in any event is now subject to an application for recall. Mr Haines does not allow for any claim for the Holland Beckett lawyers costs.

2      Haines v Memelink [2019] NZHC 2802 [31 October 2019] at [67].
3      Haines v Memelink [2019] NZHC 2802 [31 October 2019] at [67].
4      Haines v Memelink [2019] NZHC 2802 [31 October 2019] at [66].

(b)Reader/writer. Mr Memelink says he has difficulties reading and writing. He has therefore used one of the trustees and his brother-in- law, Mr Bassett-Burr who is…

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: [2020] NZHC 188
Decision Date: 17 February 2020

CaseChat Overview and Summary

In Haines v Memelink, the High Court of New Zealand dealt with the issue of costs following the discontinuance of proceedings. The applicants, Quentin Stobart Haines and BPE Trustees (No. 1) Limited, had brought claims against the respondents, Harry Memelink and Lynx Trustees Limited, but subsequently sought to discontinue the proceedings. The primary legal issue was whether costs should be awarded to the respondents, particularly to Harry Memelink who represented himself as a litigant in person, and if so, the extent of those costs.

The court examined the reasonableness of the costs claimed by both parties. It granted leave for the proceedings to be discontinued but noted that Mr Memelink had opposed the application and sought costs. The court found that Mr Memelink was entitled to his actual and reasonable disbursements, which included expenses for travel, parking, photocopying, and other office supplies. However, the court did not allow for the payment of a reader/writer or the full amount of legal advice costs claimed by Mr Memelink. The court allowed a modest amount for legal advice, totalling $500, and rejected claims for a reader/writer and certain office consumables.

Regarding Mr Haines' costs claim, the court held that the applicants were not entitled to costs due to the discontinuance of the proceedings. The court found that Mr Memelink's reasonable disbursements, amounting to $1,415.22, should be awarded to him. Consequently, Mr Haines' application for costs was dismissed, and Mr Memelink was awarded the reasonable disbursements, along with costs on a 2B basis for the preparation of the statement of defence.

Orders