Haines v Memelink

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 401

In the matter of

Mortgage 10757448.4

BETWEEN

QUENTIN STOBART HAINES

First Applicant

AND

BPE TRUSTEES (NO 1) LIMITED

Second Applicant

AND

HARRY MEMELINK

Respondent

AND

LYNX TRUSTEES LIMITED

Second Respondent

Hearing:

11 February 2019

Appearances:

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

P Chisnall for the Official Assignee

Judgment:

11 March 2019

JUDGMENT OF GRICE J

[1]    This is an application  for  an  interim  injunction  restraining  the  sale  of  Mr Haines’ home at 3/97 Honi Taipua  Street,  Manakau,  Levin.  It  is  owned  by Mr Haines’ family trust. The trustees are the first and second applicants. This application follows the granting of a without notice injunction on 21 December 2018.1 An earlier without notice application had been declined.2

1      Haines v Memelink [2018] NZHC 3460. This application was dealt with on a “Pickwick” basis.

2      Haines v Memelink [2018] NZHC 3373.

HAINES v BPE TRUSTEES (NO 1) LIMITED [2019] NZHC 401 [11 March 2019]

[2]    The respondents have indicated they intend to sell the Manukau property as mortgagees. They are trustees of the Link Trust (No 1). They have taken over the mortgage from Fico Finance Ltd (Fico Finance). They wish to exercise the power of sale to sell the secured property.

[3]    The background to the application is summarised in my earlier judgment as follows:3

[1]        Mr Haines and BPE Trustees (No 1) Ltd own a property registered on the Record of Title Identifier 435936 (Wellington Land Registration District).

[2]        Mr Haines says he and BPE Trustees (No 1) Ltd own the property as trustees of a family trust. He says the property is a life style property located at 3\97 Honi Taipua Street, Manakau, Levin which he lives in.

[3]        The property has two mortgages registered against it, the first to Basecorp Finance Ltd and the second to Fico Finance Ltd. Both were registered on 1 May 2017, the same date as the transfer to Mr Haines and BPE Trustees (No 1) Ltd. The title also shows a caveat by Johang Ltd registered on 1 August 2018. Mr Haines does not refer to that caveat in his affidavit in support.

[4]        Mr Haines first borrowed money from Fico Finance Ltd in late 2016 when he borrowed $75,000. He said his former client, Mr Memelink, and his trust, Link No 1 Trust, acted as guarantors of that loan. The second loan with Fico Finance Ltd was for $250,000. This was when the mortgage was registered. Other properties also secure this mortgage. Mr Haines says a further loan was obtained in February 2017 from Bright Enterprises Ltd for approximately $250,000 and this was guaranteed by Mr Memelink and his trust.

[5]        Mr Memelink subsequently used the second Fico loan to purchase a boat known as the Katherine Johnston.   Mr Haines also says that he lent   Mr Memelink $93,425.59 so…