Haines v Memelink - [2021] NZSC 14

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 93/2020
[2021] NZSC 14

BETWEEN	QUENTIN STOBART HAINES First Applicant
BPE TRUSTEES (NO 1) LIMITED Second Applicant
QUENTIN HAINES PROPERTIES LIMITED Third Applicant
AND	HARRY MEMELINK AND CISCA FORESTER AS TRUSTEES OF THE LINK TRUST NO 1 Respondents

SC 93/2020
BETWEEN	BPE TRUSTEES (NO 1 LIMITED) First Applicant
QUENTIN HAINES PROPERTIES LIMITED Second Applicant
AND	ROY BASSETT-BURR Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	J P Dallas for Applicants D G O Livingston, M F Moughan and M C R Dunn for Respondents
Judgment:	1 March 2021

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for leave to appeal against the interim decision is granted.
BThe application for leave to appeal against the interim and substantive decisions is dismissed.
CThe applicants must pay the respondents costs of $2,500.

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REASONS

Introduction

The applicants seek leave to appeal against two decisions of the Court of Appeal. The first is an interlocutory decision which amended the parties to the appeal.[1] The second is a substantive judgment which set aside an order for costs made against Mr Bassett‑Burr.[2]

Background

[1]Memelink v Haines [2020] NZCA 205 (French and Collins JJ) [interim decision].

[2]Bassett-Burr v BPE Trustees (No 1) Ltd [2020] NZCA 457 (Goddard, Ellis and Dunningham JJ) [substantive decision].

The matter initially concerned five statutory demands which were served on Mr Haines and associated entities by Mr Memelink and Lynx Trustees. Mr Bassett‑Burr, in his capacity as a director of Lynx Trustees, signed off on the statutory demands.
The statutory demands were found by the High Court to be improperly issued and hence were set aside.[3] An order for non-party costs personally against Mr Bassett‑Burr was made by the High Court.[4]
[3]Haines v Memelink [2019] NZHC 2169 (Churchman J) at [32].
[4]At [47].
The decision to award costs against Mr Bassett-Burr was appealed by Mr Memelink and Lynx Trustees. The Court of Appeal issued an interim decision amending the parties to the appeal. Because the appeal was solely about the order awarding costs against Mr Bassett-Burr, Mr Memelink and Lynx Trustees were removed as appellants with Mr Bassett-Burr substituted in their place.[5] An application to strike out the appeal was also denied at this stage, although the Court said that the merits of the appeal were weak.[6]
[5]Interim decision, above n 1, at [13].
[6]At [19].
The subsequent substantive decision delivered by the Court of Appeal, however, allowed the appeal and set aside the order for costs against Mr Bassett-Burr. This result turned on a procedural point. The Court held that, before costs are awarded against a non-party, an application on notice should be made against that party.[7] The Court found that insufficient notice had been provided to Mr Bassett-Burr and consequently that the High Court did not have jurisdiction to make a costs order against him.[8]

Extension of time

[7]Substantive decision, above n 2, at [12], applying Easton Agriculture Ltd…

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.

Continue reading Haines v Memelink

Details

AGLC: Haines v Memelink [2021] NZSC 14
Case: [2021] NZSC 14
Decision Date: 1 March 2021

CaseChat Overview and Summary

The Supreme Court of New Zealand considered an appeal brought by Quentin Stobart Haines, BPE Trustees (No 1) Limited, and Quentin Haines Properties Limited against decisions made by the Court of Appeal. The respondents to the appeal were Harry Memelink, Cisca Forester as trustees of the Link Trust No 1, and Roy Bassett-Burr. The applicants sought leave to appeal against two decisions of the Court of Appeal: an interlocutory decision amending the parties to the appeal, and a substantive judgment which set aside an order for costs made against Mr Bassett-Burr. The applicants argued that the Court of Appeal should not have amended the parties to the proceedings without an application on notice to do so, and that it was not necessary for Mr Bassett-Burr to have been given formal notice that costs were sought personally against him. The respondents argued that requiring a formal application on notice is preferable because it provides commercial certainty, and that the Easton Agriculture approach should be preferred over ETB Realty. The Court held that while it was arguable whether the Court of Appeal was correct in holding that the High Court has no jurisdiction to make a costs order against a non-party in the absence of a formal application, natural justice will generally require that non-parties be given notice of the possibility of a costs order against them and be provided with an opportunity to respond. In the present case, the Court of Appeal held that there had not been adequate notice. This is a question of fact and does not merit the granting of leave. The Court also held that the Court of Appeal can give any direction for the just and expeditious resolution of any matter whether on application by a party or on the Court’s own initiative, and that the applicants have an alternative avenue of redress: making a formal application for costs against Mr Bassett-Burr in the High Court. The application for an extension of time to apply for leave to appeal against the interim decision is allowed. The application for leave to appeal against the interim and substantive decisions is dismissed. The applicants must pay the respondents costs of $2,500.

Orders