Haines v Memelink - [2018] NZHC 3460

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-962

[2018] NZHC 3460

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

Telephone conference: 21 December 2018

Appearances:

J Mahuta-Coyle for First and Second Applicants G Manktelow for First and Second Respondent P Chisnall for the Official Assignee

Judgment:

21 December 2018

JUDGMENT OF GRICE J

(Interim injunction restraining dealing with property)

[1] The applicants applied for a without notice interim injunction to prevent the respondents, as mortgagees, taking steps to sell a property owned by the applicant trustees at 3\97 Honi Taipua Street, Manakau, Levin (now renamed 297B Eastern Rise).1

1 Mr Haines says that the respondents have taken an assignment of a mortgage from Fico Finance which is registered against the title as mortgage 10757488.4.

QUENTIN STOBART HAINES v BPE TRUSTEES NO 1 LIMITED [2018] NZHC 3460 [21 December 2018]

[2]The respondents hold the mortgage as trustees for the Link No 1 Trust.

[3] On 19 December 2018, I directed the application be served and declined to deal with the matter on a without notice basis on the information then before me.2

[4] The applicants have effected service of the proceedings by email on the respondents and the Official Assignee. Counsel for those parties filed memoranda and appeared today.

[5] The first applicant lives in the house and is presently on home detention. It is the approved address for his sentence of home detention.

[6]I have set out the background in my earlier judgment will not repeat it here.3

[7] Since then counsel for the applicants has filed two further memoranda dated 19 and 20 December 2018 and a further affidavit of Mr Haines (initially unsworn).

[8] The further information provided by the applicants points out that the respondents have now listed the property for sale. The Harcourts listing agreement indicates the property will be for sale for the period from 10 December 2018 to 10 March 2019 at a price of $970,000. The listing document was signed on behalf of Lynx Trustees Limited. The actual signatures on the documents are difficult to make out. However, Mr Bassett-Burr for Link Trust Limited is recorded as the client.

[9] Mr Haines says Property Law Act notices were issued by Fico. He did not annex them. However, Mr Memelink provided them and it appears there are expired Property Law Act notices apparently entitling the mortgagee to proceed to sell the property. Nevertheless, Mr Haines says he has not been able to obtain details about what is alleged to be owing under the mortgages by the applicant trust.

[10] The respondents took assignment of the mortgage as part of a refinancing of other loans. It appears the previous business dealings between Mr Haines and

2 Haines v Memelink [2018] NZHC 3373.
3 See above, n 2.

Mr Memelink and their…

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: [2018] NZHC 3460
Decision Date: 21 December 2018

CaseChat Overview and Summary

In Haines v Memelink, the applicants sought an interim injunction to prevent the respondents from selling a property located at 3\97 Honi Taipua Street, Manakau, Levin, now renamed 297B Eastern Rise. The applicants, Quentin Stobart Haines and BPE Trustees (No 1) Limited, were contesting the respondents', Harry Memelink and Lynx Trustees Limited, decision to sell the property, which was subject to a mortgage held by the respondents as trustees for the Link No 1 Trust. The applicants contended that they were not indebted to the respondents and thus, the property should not be sold. The legal issues before the Court were whether the applicants had an arguable case and whether damages would not be an adequate remedy if the applicants were successful at trial.

The Court found that the applicants had an arguable case, given that they could not ascertain what was owed under the mortgage. Additionally, the Official Assignee supported the making of a without notice interim injunction to prevent the sale of the property until further order of the Court. The Court held that damages would not be an adequate remedy, as the applicants were unable to redeem the property due to the lack of information regarding the amount owed and the financial arrangements between the parties. The Court granted the interim injunction, restraining the respondents from taking any steps to sell, transfer, or dispose of the property until 4 February 2018 or further order of the Court (whichever is the earlier). The applicants were required to file undertakings as to damages, and the second respondent had to file an undertaking before the order could issue. The Court did not order that the applicants pay interest on the mortgage monies due to the complexity of the financial arrangements between the parties.

The Court further outlined a timetable for the respondents, applicants, and Official Assignee to file their respective notices of opposition, submissions, and updates on the progress of the case. The parties agreed to file and serve electronic documents, and costs were reserved for potential future application by the applicants. Finally, the Court noted that it would be beneficial if the proceedings relating to Mr Memelink's bankruptcy and his application for annulment could be coordinated with the present proceedings.

Orders