Haines v Memelink - [2019] NZHC 1086

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-962

[2019] NZHC 1086

BETWEEN
QUENTIN STOBART HAINES

First Applicant

AND

BPE TRUSTEES (NO 1) LIMITED

Second Applicant

AND

HARRY MEMELINK

Respondent

AND

LYNX TRUSTEES LIMITED

Second Respondent

On the papers

Counsel:
J K Mahuta-Coyle for First and Second Applicants G Manktelow for First and Second Respondents

P Chisnall for the Official Assignee

Judgment:

20 May 2019

JUDGMENT OF GRICE J

(Costs on interlocutory application)

[1] On 11 March 2019 I granted an application for an interim injunction restraining the sale of Mr Haines’ home.1 It was owned by Mr Haines’ family trust and the trustees were the first and second applicant (the Haines’ interests). I had earlier granted an interim order restraining the sale of the property, on the basis of a “pickwick” without notice application, on 21 December 2018.2 An earlier without notice application had been declined.3

1      Haines v Memelink [2019] NZHC 401.
2      Haines v Memelink [2018] NZHC 3460.
3      Haines v Memelink [2018] NZHC 3373.

QUENTIN STOBART HAINES v BPE TRUSTEES (NO 1) LIMITED [2019] NZHC 1086 [20 May 2019]

[2] The injunction concerned an application by Mr Haines to prevent Mr Memelink’s trust, the trustees being the first and second respondents (the Memelink interests), from selling Mr Haines’ residence by using their powers of sale under a mortgage. The injunction was granted on the basis that there had not been appropriate provision of information of the amounts owing under the mortgage. I said:4
[52] I conclude the balance of convenience supports the granting the interim injunction on conditions. The balance favours the grant only because of the failure by the respondents to provide information to the applicants to enable them to redeem the mortgaged property.

[53] The conditions will require the applicants to service the interest repayments on an amount attributable to the former Fico loan secured under the second mortgage. In the context of the interim injunction application I do not accept Mr Haines’ claim of equitable estoppel based on outstanding legal fees or an arrangement that the respondents service the Fico loan. The loan was refinanced by the respondents. They should not have to continue servicing it pending resolution of the disputes. The claim put forward by the applicants based on what actually remained secured under the Fico assigned mortgage is a technical argument which does not preclude the applicants from servicing the refinanced Fico loan in the interim.

Interim orders

[54] The respondents, as second mortgagees over the property at 3/97 Honi Taipua Street, Manukau, Levin presently occupied by the first applicant, are restrained from selling the property until further order of the court on the following conditions:

(a)The applicants jointly and severally will contribute toward the interest on the monies borrowed by the respondents in order to repay the Fico Finance loan and secured under the mortgage at the rate of 12.95 per cent per annum.

(b)The amount…

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.

Keep reading for free

Create a free CaseChat account to read Haines v Memelink and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NZHC 1086
Decision Date: 20 May 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Judge Grice was called upon to decide an application for an interim injunction to prevent Harry Memelink's trust, through its trustees, from selling Quentin Stobart Haines' residence. The property was owned by Haines' family trust and the trustees were the first and second applicants. The injunction was sought on the basis that there had not been appropriate provision of information of the amounts owing under the mortgage. The court granted the injunction on certain conditions, including that the applicants service the interest repayments on an amount attributable to the former Fico loan secured under the second mortgage.

The court had to decide whether the respondents were required to provide information to the applicants to enable them to redeem the mortgaged property. The court found that the respondents had taken an assignment of the relevant second mortgage and attempted to sell the house without the Official Assignee's consent, and without providing the applicants with information enabling them to redeem the mortgage if they chose to do so. However, the court also found that the applicants' claim that the amounts owing to them were offset by legal fees was not enforceable. The court concluded that the balance of convenience supported the granting of the interim injunction on conditions.

Judge Grice held that while the applicants were successful in obtaining the interim injunction, it was not appropriate for the respondents to pay the full amount of costs claimed. The material filed in support of the application for interim injunction and the hearing time was largely taken up with arguments that the respondents owed the applicants money and the alleged debt based on Haines' legal fees. The imposition of the conditions in favour of the respondents marked a success for the respondents as well. However, the applicants did succeed in obtaining an interim injunction following a defended hearing. Therefore, the court considered that the applicants were entitled to some costs.

Accordingly, the court ordered costs in favour of the applicants against the respondents in a sum calculated according to category 2B of the High Court Rules, but discounted by 50 per cent. The court reserved leave for the parties to apply for costs and set out a timetable for the exchange of submissions.

Orders