Haines v Memelink

[2024] NZCA 374

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA807/2023
 [2024] NZCA 374

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

Court:	French and Mallon JJ
Counsel:	C R Carruthers KC and J P Dallas for First, Second and Third Applicants J D Haig and R O Williams for Respondents
Judgment: (On the papers)	8 August 2024 at 3.30 pm

JUDGMENT OF THE COURT
(Application for Recall)

AThe application for recall is declined.

BThe respondent is entitled to costs on the recall application calculated on an indemnity basis.  Leave is reserved to the parties to revert to this Court in the event the quantum of the indemnity costs is unable to be agreed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

1. In a judgment delivered on 20 June 2024, we declined the applicants’ application for an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005.[1]

   [1]Haines v Memelink [2024] NZCA 245.

2. The applicants have now applied for a recall of that judgment which has not yet been sealed.  The recall application is opposed by the respondents.

3. Three grounds of recall are advanced.  All are without merit.  The first is that we overlooked the fact the applicants had filed a memorandum seeking to consolidate their application to extend time with a separate appeal they have filed against the High Court’s quantum judgment.[2]  However, as the respondents point out, it is axiomatic that the question of consolidation would only have become relevant had we granted the extension of time, which we did not.

   [2]Memelink v Haines [2024] NZHC 588.

4. The second ground is that we failed to consider the existence of an order staying all proceedings brought by the respondent trust.  However, the stay was expressly subject to the receiver agreeing to continue a proceeding or the court lifting the stay.  The receivers had agreed the proceedings at the centre of our judgment could continue.

5. The third ground is that we overlooked the fact that the liability judgment sought to be appealed was a decision on a summary judgment application.  However, as is apparent on the face of our judgment, that was not overlooked.[3]

   [3]See for example Haines v Memelink, above n 1, at [1], [7]–[8] and [11]–[12].

6. The application for recall falls well short of the recognised criteria for the recall of a judgment.[4]

   [4]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633 approved in Saxmere Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2].

7. The respondents are entitled to indemnity costs on the recall application pursuant to contractual provisions in loan agreements at issue in the proceeding.[5]  Leave is reserved to the parties to revert to this Court in the event the quantum of the indemnity costs is unable to be agreed.

Outcome

[5]Haines v Memelink [2024] NZCA 373.

1. The application for recall is declined.

2. The respondent is entitled to costs on the recall application calculated on an indemnity basis.  Leave is reserved to the parties to revert to this Court in the event the quantum of the indemnity costs is unable to be agreed.

Solicitors:
JD Dallas, Wellington for First, Second and Third Applicants
Gibson Sheat, Wellington for Respondents