Haines v Memelink

[2019] NZHC 2802

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-952

[2019] NZHC 2802

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:

18 October 2019

Further submissions 21 & 22 October 2019

Appearances:

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:

31 October 2019

JUDGMENT OF GRICE J

(Leave to discontinue and costs/lay litigant/legal expenses)

[1]    On 11 March 2019 following a defended hearing I issued an interim injunction restraining the sale of Mr Haines’ home at 3/97 Honi Taipua Street, Manakau, Levin. It was owned by Mr Haines’ family trust. The trustees are the first and second applicants (the Haines’ interests). An earlier without notice interim injunction had been granted on 21 December 2018.1

1      Haines v Memelink [2018] NZHC 3460; Haines v Memelink [2018] NZHC 3373.

HAINES v MEMELINK [2019] NZHC 2802 [31 October 2019]

[2]    At that stage the respondents (the Memelink interests) were intending to sell the Manakau property as mortgagees. They were the trustees of Mr Memelink’s family trust, the Link Trust (No. 1). That trust had taken an assignment of the second mortgage over the Haines property from Fico Finance and it was attempting to exercise the mortgagee’s power of sale.

[3]    It is not necessary to go into the background in any detail. It is sufficient to say the personal business and professional affairs of the Memelink and Haines trusts are entwined and complicated.

[4]    Mr Haines is a former lawyer. He has surrendered his practicing certificate. Mr Haines  had  acted  as  the  lawyer  for  Mr Memelink  and  his  family  trust.    Mr Memelink and his trust, had guaranteed the Fico Finance mortgage over the Haines’ property which had left them with a liability to that financier.

[5]    Mr Haines had rendered an account for legal fees to Mr Memelink and the Memelink interests in excess of $1 million. This was recorded as a debt in a declaration by Mr Memelink prepared by Mr Haines as part of a plan to stave off   Mr Memelink’s bankruptcy. Mr Memelink blames Mr Haines’ legal advice and the recording of the legal bill as a debt for leading to Mr Memelink’s adjudication in bankruptcy.

[6]    Mr Memelink was bankrupt at the time the interim injunction was made and has since failed in his bid to have the bankruptcy overturned. He is now appealing the bankruptcy adjudication.

[7]    At the time the interim injunction was made the Memelink interests were represented by counsel, Mr Manktelow.

[8]    The Official Assignee has appeared at the injunction hearings, including at this hearing. She has indicated that she abides the decision of the Court and has taken no active part in the proceedings. The Official Assignee’s position was that she neither supported nor opposed the interim injunction application but did not raise the bankruptcy as a barrier to the Court dealing with the matter. At that time the Official

Assignee had not embarked on an investigation into Mr Memelink’s financial affairs, nor into the relationship between his affairs and those of his various trusts, including the Link Trust (No 1), pending the hearing of annulment application. The Official Assignee has taken a similar stance in relation to this hearing. Mr Chisnall for the Official Assignee was granted leave to withdraw from the hearing but maintains a watching brief on the proceedings.

[9]    The liquidator of the second respondent takes a similar stance and was also released from attendance at the hearing.

The interim injunction

[10]   Mr Haines had surrendered his practicing certificate in 2018 so he is longer entitled to act for the Memelink interests. One of the grounds for the Haines interests’ application for the interim injunction was that the amount owing to Mr Haines for legal fees (in excess of $1 million) exceeded the amount owing under the Fico Finance mortgage on which the Memelink interests were relying on to sell the secured property.

[11]   I concluded that as a fees complaint was before the New Zealand Law Society no proceedings for recovery of the fees could be commenced or continued until the complaint was finally disposed of.2 I noted that a number of other regulatory requirements had also apparently not been complied with in relation to the legal fees.

[12]   I did however find that the Memelink interests (as the assignor of the mortgage) had failed to provide information to the Haines interests concerning what was owing under the mortgage. I found there was a serious question to be tried as to whether the Haines interests were being prevented from redeeming the second mortgage. I also directed that the Memelink interests provide details of the amounts owing under the second mortgage.

[13]   I concluded the balance of convenience favoured the granting of the interim injunction. I made the orders subject to interest payments of $5,582 per month payable

2 Lawyers and Conveyancers Act 2006, s 161(1). Haines v Memelink [2019] NZHC 401 at [34].

by the Haines interests to the Official Assignee (as administrator of Mr Memelink’s affairs). The first such payment was to be made on 15 April 2019.

Since the interim injunction

[14]Since the granting of the interim injunction things have moved on considerably.

[15]   It appears that the house was sold by the first mortgagee (Basecorp Finance) at public auction to Mr Haines for the sum of $810,000. Mr Memelink then objected to Basecorp Finance selling to Mr Haines, therefore, that sale was reversed. The Haines’ interests then acquired the Basecorp Finance mortgage for the sum of $760,000. As part of that arrangement a third party, Eastlight Asset Trading No 5 Ltd, took assignment of the Basecorp Finance mortgage. Eastlight sold the property to a third party (for $813,000) who has leased the property back to Mr Haines.  As a  result,  Mr Haines remains resident in the property.

[16]   Mr Memelink’s interests still hold the second mortgage debt but the property is no longer security as it was sold at mortgagee sale and no surplus was recovered for the second mortgagee in the sale. Mr Memelink says there should have been a surplus being the difference between the sale price to the third party of $813,000 and the amount owing on the first mortgage of $760,000. Mr Geiringer submits any difference was likely taken in transaction costs.

[17]   The property sale was completed in May 2019. At that stage only two payments of the interest that Mr Haines was directed to pay to the Official Assignee had accrued. However, nothing has been paid to date.

[18]   Mr Memelink says he did not object to Basecorp Finance exercising its powers of sale under the first mortgage. However, now he is of the view that the outcome of the series of transactions described above was contrived by Mr Haines and was in breach  of  Mr Haines’  professional   obligations   to   the   Memelink   interests.   Mr Memelink says Mr Haines remains on the roll of barristers and solicitors and so owes continuing professional obligations to the Memelink interests. Mr Memelink says these obligations have been breached by Mr Haines in securing the series of

transactions which have resulted in him remaining in the house without repaying the second mortgagee.

[19]   The second respondent has gone into liquidation. Mr Memelink says the company should not have been put into liquidation and he is going to contest the liquidation. He also wants to replace the second respondent, as trustee of the Memelink family trust, the Link Trust (No 1), with other nominated trustees. That replacement only becomes relevant if these proceedings are not discontinued. Also the liquidators have noted they would oppose it.

[20]   Mr Memelink has been working on legal claims against Mr Haines and his interests as well as other parties, including possibly the finance companies involved in the mortgagee sale. He is focussing on sale of the house which he said was orchestrated by Mr Haines in conflict with his professional obligations to the Memelink interests. Mr Memelink says he made no application to stop the mortgagee sale at the time as he was under the impression it would be a bona fide mortgagee sale by Basecorp and was content to let the sale occur.

[21]   Mr Memelink says he needs discovery against a number of parties in order to progress the claims. Those parties include Basecorp Finance, Fico Finance and the Eastlight related parties. Any orders for discovery, whether against parties to these proceedings or third parties are matters that only become relevant if these proceedings remain on foot.

The relevant principles

[22]   A plaintiff may generally discontinue a proceeding as of right by filing a notice of discontinuance and serving it.3

[23]   However, leave is required if the Court has granted an interim injunction or a party to the proceeding has given an undertaking to the Court.4 A leave application

3      High Court Rules 2016, r 15.19.

4      High Court Rules 2016, r 15.20.

should be considered against the underlying principle that a plaintiff cannot be compelled against its will to proceed to a trial of judgment.5

[24]   A party will only be constrained from discontinuing where it is necessary to address some injustice that would otherwise occur due to the way in which the discontinuing party has conducted the proceedings to that point, for example, by obtaining an interim injunction.6 Whether this prevents leave being granted depends on the particular facts and circumstances of each case.

[25]   Unless the defendant otherwise agrees or the Court orders, a plaintiff who discontinues must pay costs to the other parties to the proceeding up to and including the discontinuance.7

[26]   In this case Mr Memelink points to three matters which he says make it unjust for the proceeding to be discontinued. These are:

(a)Mr Haines’ involvement in the mortgagee sale gives rise to claims against him. The claims are based on breach of Mr Haines’ professional obligations to Mr Memelink as well as general claims which are being formulated.

(b)If Mr Memelink had known that Basecorp Finance had outstanding Property Law Act notices calling up the loan and giving notice of mortgagee sale and that the loan was in default, he would not have defended the Haines’ application for an  interim  injunction  at  all.  Mr Memelink said he would have allowed Basecorp Finance to sell the property at mortgagee sale as a sale was what the Memelink interests wanted.

(c)Mr Haines misled the Court by saying that the Basecorp Finance loan was not in default at the time of the hearing of the application for the

5      O’Brien v Social Credit Political League Inc (2) [1984] 1 NZLR 58 (CA) at [74].

6      McGechan on Procedure, Commentary at HR15.20.01 at 1-2530 (31/3/17).

7      High Court Rules 2016, r 15.23.

interim injunction. Mr Memelink says the loan was in default and that PLA notices had been issued by Basecorp Finance.

(d)Mr Memelink has claims against Mr Haines based on breach of his professional obligations as a lawyer to the Memelink interests (arising both before and after the surrender of his practicing certificate). Related to this are Mr Memelink’s complaints  about  the  level  of  Mr Haines’ billing. He said Mr Haines did not carry out the work which would justify the level of the bill.

[27]   Mr Memelink also asks that two payments acknowledged by Mr Haines to be owing under the terms of the injunction and payable to Official Assignee (totalling approximately $11,164) be paid direct to Mr Memelink or General Finance to offset the amounts the Memelink interests have continued to pay to service the Haines’ loans guaranteed by them. Mr Memelink says the loans are in fact owed by and relate to money advanced to the Haines interests but the Memelink interests have been caught under the guarantee. That is not a matter that can be dealt with today.

[28]   Two interest payments would have been payable by the Haines’ interests to the Official Assignee in terms of the interim injunction directions. Mr Haines has acknowledged that they are owing. However, Mr Geiringer suggested that the orders may have been conditions precedent to the interim injunction rather than under standalone orders. However, it is not necessary to determine that issue as Mr Haines’ interests have acknowledged that two of the interest payments will be paid to the Official Assignee although Mr Haines has not been able to pay them to date.

[29]   Mr Geiringer said Mr Haines had used his best endeavours to pay the money to the Official Assignee. He handed up a copy of emails from Mr Haines in which Mr Haines refers to making arrangements for a loan to enable him to repay (among other things) those amounts to the Official Assignee. The emails say that if Mr Haines receives the loan he directs his lawyers that the figure said to be owing to the Official Assignee be paid from the loan funds.8

8      Emails dated 17 October 2019 from Mr Haines to Mr Geiringer and to John Langford respectively.

[30]   In any event, in my view that there are amounts outstanding should not prevent these proceedings being discontinued in the circumstances. If the Official Assignee wishes to take steps to enforce payment that is a matter for her but not a reason to keep the proceedings on foot. Mr Memelink also sought disclosure of the name of the lender which was blacked out in Mr Haines’ email. Mr Memelink’s concern was with Mr Haines’ solvency and he indicated he wished to warn the lender. However, that is not an issue which would assist nor is it relevant to this application. Therefore, I do not propose directing disclosure for present purposes.

Analysis

[31]   The reasons suggested by Mr Memelink that would make it unjust to allow the proceedings to be discontinued in my view are insufficient to keep these proceedings on foot in the circumstances.

[32]   Mr Memelink wishes to use this proceeding as vehicle for claims he is now formulating against the Haines interests and other parties such as the finance companies and the ultimate purchaser of the property in which Mr Haines continues to reside. However, the house which was the subject of the application for interim injunction has been sold. The events surrounding that sale occurred after the issue of the proceeding and involve parties not joined to these proceedings.

[33]   Mr Memelink was also concerned that Mr Haines had misled the Court about whether Basecorp Finance had issued Property Law Act notices and about Mr Haines not being in default to Basecorp Finance at the time of the interim injunction.

[34]   However, the fact that Basecorp Finance had issued PLA notices is expressly pleaded in the draft statement  of  claim  that  was  before  the  Court  at  the  time. Mr Memelink took me to a series of Basecorp Finance statements relating to the Haines loans to illustrate the default. However, those statements are also consistent with Mr Haines’ evidence at the time of the hearing of the interim injunction application that he had remedied the defaults by payments of lump sums. The statements are not conclusive either way. In any event even if Mr Haines had misled the Court over those issues they were not matters which would justify keeping these proceedings on foot.

[35]   The second respondent, through its liquidators, does not oppose the discontinuance of the proceedings. It abides by the decision of the Court. As does the Official Assignee.

[36]   At the time of the hearing of the interim injunction a first amended statement of claim was handed up to the Court. The claims set out in that formed the basis for my analysis of the Haines interests’ claims against the respondents for the purposes of the interim injunction application. It transpires that no statement of claim was actually filed in the court, although the Memelink interests did file a statement of defence. It is not clear whether that was served on the applicants.

[37]   The statement of defence merely contains a series of denials of the allegations in the draft statement of claim. There was no counter claim lodged.

[38]   To date no timetable directions, discovery or other interlocutory matters, to progress the case to trial, have been attended to. This is largely because events overtook over the proceedings and so neither the applicants nor the respondents were interested in pursuing this proceeding.

[39]   It is not unfair or unjust to allow the applicants to discontinue. They should not be compelled to pursue their claims to trial when they are already spent. On the other hand, if Mr Memelink wishes to pursue his claims against the Haines interests and the third parties involved in the mortgagee sale he can bring proceedings against those parties separately.9 It is not unjust that he must issue new proceedings properly formulated for the claims he now wishes to pursue.

[40]   As will be apparent in my view the proceeding should be brought to an end. The objective of the High Court Rules 2016 is to secure the “just, speedy and inexpensive” determination of any proceeding.10 To allow this proceeding to stay on foot would not promote its timely nor inexpensive disposal. The proceeding has run its course and the subject matter of the proceedings has been sold.

9      Noting that Mr Memelink is bankrupt and the second respondent is in liquidation.

10     High Court Rules 2016, r 1.2.

Costs

[41]   The usual rule is that costs are awarded to the other party following filing of a notice of discontinuance.11

[42]   Mr Geiringer for the applicant says costs should not be awarded against the applicants in favour of the respondents as Mr Memelink is litigant in person and so is not entitled to costs.

[43]   Mr Geiringer accepts Mr Memelink as a litigant in person may be entitled to reasonable disbursements. However, he opposes any claim made by Mr Memelink for legal expenses as a disbursement.

[44]   Mr Geiringer appropriately conceded that as the respondents were represented by counsel who had filed a statement of defence on their behalf, legal costs may be appropriate for that step, together with relevant disbursements including the filing fee. He suggested that a portion only of scheduled costs for undertaking that step should be awarded in the circumstances.

[45]   The second respondent is in liquidation. The liquidators filed a memorandum indicating they would abide by the decision of the Court. Mr Clark-Parker for the liquidators made a brief appearance at the hearing before he was excused. Mr Chisnall also indicated that the Official Assignee would abide the decision and was excused.

[46]   Mr Memelink has diligently applied himself to the management of these proceedings. No doubt he has incurred expenses in attending the various case management conferences. However, he is not a lawyer, and as he has candidly admitted, he has little familiarity with the rules (although he is gaining it he says). As a result he has had difficulty in focussing on the issues relevant to the matter before the Court. This has added to the time involved in dealing with the proceeding.

[47]   Mr Memelink referred to FM Custodians v Cudby & Meade Ltd12 in which he appeared in person as the director of the defendant in support of his claim for costs.

11     High Court Rules, r ?

12     FM Custodians v Cudby & Meade Ltd [2015] NZDC 7323.

In that case the Judge reiterated the principle that a litigant representing himself was not entitled to costs but allowed a claim for legal costs incurred in assisting the litigant to mount his case.13

[48]   Mr Memelink also referred to McGuire.14 Mr McGuire was awarded costs under the lawyer in person exception. That case is not relevant as Mr Memelink is not a “lawyer in person”. The Supreme Court in McGuire did reiterate that the primary rule, that a litigant in person was not entitled to costs remained.15

[49]   Mr Memelink has not supplied a schedule of disbursements. However, anticipating that the claim may include a claim for legal fees paid to lawyers assisting Mr Memelink in the preparation and conduct of the proceeding, Mr Geiringer submitted it would be inappropriate to allow legal expenses as a disbursement.

[50]   Mr Geiringer did note that Clifford J in Knight16 the Court allowed a disbursement in relation to the preparation of the proceedings in the sum of $1,786.50 for legal advice to the lay litigant.

[51]   Mr Geiringer submits that allowing legal expenses as a disbursement is not consistent with the provisions in the High Court Rules, as a disbursement is defined at r 14.12(1)(a) as:

… an expense paid or incurred for the purposes of the proceeding that would ordinarily be charged for separately from legal professional services in a solicitor’s bill of costs.

[52]   He noted that further clarification was provided by r 14.12(1)(c) which states that the definition of disbursements “does not include counsel’s fee”. He also submitted that there are good policy reasons not to allow legal expenses under the heading of disbursements as doing so provided a mechanism which allowed indemnity costs to a claimant not otherwise entitled to scale costs.

13     FM Custodians v Cudby & Meade Ltd [2015] NZDC 7323 at [9].

14     McGuire v Secretary for Justice 1 NZLR 335.

15     McGuire v Secretary for Justice 1 NZLR 335 at [88].

16     Knight v Veterinary Council of New Zealand (31 July 2009) AC Wellington CIV-2007-485-1300, Clifford J.

[53]   Therefore, Mr Geiringer submitted that any claim for disbursements must be limited to the expenses listed in r 14.12(1)(b) or otherwise fitting within r 14.12(1)(a).

[54]   In Knight17 Clifford J noted that the Court should take a reasonably “liberal approach” to the assessment of classifications of disbursements claimed by a lay litigant. His Honour there allowed as a disbursement an expense for legal advice obtained by the lay litigant in relation to the preparation of the proceedings.

[55]   I note the rationale for allowing expenses paid to a lawyer to help a lay litigant to prepare documents and to appear and argue the case is that the incurring of those costs assists in relieving the unsuccessful party from having to pay costs for legal representation at the hearing. In addition, legal assistance may also contribute to the proceeding being dealt with more expeditiously as it may give the lay litigant a better idea of the issues which should be dealt with and how to approach them. The “unbundling” of legal services to allow a lay litigant the benefit of at least some legal oversight or assistance is being promoted as one option for lay litigants to manage the cost of legal representation while gaining some legal assistance in the conduct of their case.

[56]   The New Zealand Law Society has issued guidance in a Practice Briefing to lawyers acting under a limited retainer18 as a way of addressing the growing “justice gap” between those who can afford to pay for traditional legal services and those who cannot. The Practice Briefing does not deal with the matters that Mr Geiringer has raised.

[57]   The Rules Committee,19 is also considering the issue of unbundling legal services and is reported to be considering the issue of whether to allow costs to scale for attendances where a practitioner has been involved a limited retainer.20

17 Knight v Veterinary Council of New Zealand (31 July 2009) AC Wellington CIV-2007-485-1300, Clifford J at [8].

18 Practice  Guidance  to  lawyers considering acting  under  a  limited  retainer.  December  2017. New Zealand Law Society, Wellington.

19  Rules Committee is a statutory body established by s 51B of the Judicature Act 1908 and continued by s 155 of the Senior Courts Act 2016. It has responsibility for procedural rules  in  the Supreme Court, the Court of Appeal, the High Court and District Court.

20 “Rules Committee supports legal services provisions under limited retainer” 9  July  2019.  Reported at: committee-supports-legal-services-provision-under-limited-retainer (retrieved 24 October 2019).

[58]   The liberal approach referred to in Knight toward disbursements in general and in allowing legal expenses as a disbursement supports the notion of unbundling legal fees. Needless to say the relevant expenses must be directly related to advice in the proceeding and must be reasonable in the circumstances. Each claim must be assessed on its merits. Legal expenses have been allowed in a number of cases.21

[59]   Mr Geiringer pointed out a valid point in that a legal expenses disbursement should not be allowed to masquerade as a claim for indemnity costs. However, the wording of the rules that Mr Geiringer has pointed to as indicating that legal expenses cannot be claimed as disbursements is less convincing. These rules contemplate a claim for costs by a solicitor and/or barrister with disbursements. Costs will not ordinarily be allowed to a lay litigant. Therefore, the argument that a legal expense must be one that might “ordinarily be charged for separately from legal professional services in a solicitor’s bill of costs” contemplates that there is solicitor’s bill of costs claimed. Similarly, it is not counsel’s fee which is being pursued as a disbursement, but rather legal expenses for discrete legal advice provided to the lay litigant in much the same way, as for instance an accountant’s fee might be claimed as a disbursement where the advice was provided in the course of proceedings.22

[60]   In any event, the court retains a discretion to allow such disbursements as it thinks fit.

[61]   I also note that the Court of Appeal in Re Collier (a bankrupt)23 left open whether the primary rule (that a lay litigant has no entitlement to costs) may be departed from in “exceptional circumstances”.24

[62]   Given the recognition that “unbundled” legal services may provide a benefit not only to the litigant in person but to the other party and to the court by assisting the litigant to properly address the legal issues and navigate the rules and procedure, they

21 Legal expenses as a disbursement: Lavery v Lavery [2019] NZHC 502 at [8] and [9]; Harrison & Wellington City Helicopters v Keogh [2015] NZHC 3320 at [12].

22 A legal expense claim may also be treated as a costs claim. Working Capital Solutions Holdings Limited v Sarah Jane Pezaro [2014] NZHC 2480.

23 Re Collier (a bankrupt) [1996] 2 NZLR 438 (CA) at 441-442.

24 McGechan on Procedure HRPt 14.10 (1)(b) citing re Collier (a bankrupt) [1996] 2 NZLR 438 (CA) at 441-442 and noting in McGuire v Secretary for Justice [2018] NZEC 116 at [55] FM 42, the Supreme Court referred to Re Collier.

should be claimable as a disbursement. The quantum of the disbursement and the nature of the legal service will be the subject of scrutiny in each case. That process will manage the risk of a back door indemnity costs claim.25

[63]   Mr Memelink is entitled to claim legal expenses as a disbursement. However, that disbursement must be related to advice in this proceeding with clear narration of the attendances and their nature and extent by the lawyers involved. It will remain in the Court’s discretion as to whether the amount of the disbursement is reasonable in the circumstances when considering such a claim.

[64]   In this case Mr Memelink has not specifically made a claim for legal expenses. In the course of the hearing he did mention that he had been seeking legal advice. He said that the trust (of which the first and second respondent are trustees) had incurred costs in the proceedings. It had instructed both Mr Manktelow who appeared at the hearing of the interim injunction application and now Holland Beckett. The interim injunction costs have been dealt with so no claim can be made in that regard.

[65]   The usual award of costs and disbursements is appropriate for the step involving the statement of defence prepared by Manktelows.

[66]   However, 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.

[67]   Mr Memelink may claim his actual and reasonable disbursements. The claim for disbursements should be set out as an itemised schedule of disbursements, together with 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 of any claim for legal expenses as outlined above).

25     See for instance: Harrison & Wellington City Helicopters v Keogh [2015] NZHC 3320 at [7]–[10].

[68]   An award of costs on a 2B basis is allowed for the preparation of the statement of defence together with reasonable disbursements. There is no reason for not allowing the full amount of that step. That is an award in favour of the respondents jointly and severally.

[69]   Mr Geiringer noted that there had been a number of other awards of costs between the parties, in favour of the Haines interests, including an award in relation to the interim injunction hearing.26 He suggested these be offset against any award of costs made in relation to this proceeding. However, I am not in a position to undertake that exercise. That is a matter for the parties.

[70]   No orders for costs were sought by counsel for the Official Assignee or the liquidator. I have assumed they are not sought.

Conclusion

[71]Leave is granted for the application for discontinuance to be filed.

[72]   Costs are awarded to the respondents on a 2B basis for the steps of filing and serving (if that occurred) of a statement of defence together with disbursements related to the filing and service of the statement of defence.

[73]   Actual and reasonable disbursements claimed and as approved by the Registrar pursuant to r 12(4) are to be paid by the applicants to Mr Memelink. The timetable for that claim is:

(a)Mr Memelink must make the application for payment of reasonable and actual disbursements by filing an itemised schedule setting each disbursement claimed together with supporting receipts or other written documentation for each item (detailing the service provided in the case of legal expenses claimed as outlined above), within seven days of the date of this judgment.

26     Haines v BPE Trustees (No 1) Limited [2019] NZHC 1086.

(b)The applicants have a further three days to respond to the application.

(c)The Registrar will consider the application and expenses claimed schedule and approve the claims pursuant to r 14.12(4) of the High Court Rules.

Grice J

Solicitors: