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Haines v Memelink

Haines v Memelink

Case [2022] NZCA 82 24 March 2022

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA463/2021
[2022] NZCA 82

BETWEEN	QUENTIN STOBART HAINES Appellant
AND	HARRY MEMELINK AND CISCA FORSTER AS TRUSTEES OF THE LINK TRUST NO 1 Respondents

Hearing:	21 February 2022
Court:	Dobson, Brewer and Edwards JJ
Counsel:	J D Dallas for Appellant DGO Livingston and M F Moughan for Respondents
Judgment:	24 March 2022 at 3.00 pm

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe bankruptcy notice issued by the respondents is set aside.
CThe respondents must pay one half set of costs to the appellant for a two-hour appeal on a band A basis and usual disbursements.
DThe High Court costs order in favour of the respondents is set aside. Costs in the High Court are to lie where they fall.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dobson J)

Introduction

This is an appeal against an Associate Judge’s refusal to set aside a bankruptcy notice issued by the respondents as creditors against the appellant as debtor.[1] The parties wage litigious war on many fronts, making a variety of claims against each other. The state of the ledger between them fluctuates depending on the outcome of various proceedings and the position with the claims asserted by each against the other.
[1]Haines v Trustees of Link Trust (No 1) [2021] NZHC 1575 [Judgment under appeal].
The debt to which the present bankruptcy notice relates is a costs order made in 2020 by Grice J in the High Court jointly against the appellant and another party for the sum of $1,758.22, which reflected the netting off of costs entitlements to both parties in that litigation.[2]
[2]Haines v Memelink [2020] NZHC 188. At that time the trustees of the Link Trust No 1 were Mr Memelink and Lynx Trustees Ltd. Ms Forster has replaced Lynx Trustees Ltd as trustee. Ms Forster is listed as a party to this judgment as she authorised the service of the bankruptcy notice which is the subject of this appeal.
The bankruptcy notice was served on 12 February 2021 and the appellant responded with an application to set it aside on 15 February 2021 (the application). Associate Judge Johnston heard argument on 25 May 2021 and delivered the judgment under appeal declining to set the notice aside on 29 June 2021.
Between service of the notice and argument of the application, Churchman J issued a costs decision in another proceeding between the parties in favour of Mr Haines on 13 May 2021, for a total of $22,919.25.[3] Counsel for Mr Haines, Mr Dallas, filed a memorandum dated 15 May 2021 in the High Court attaching a copy of Churchman J’s judgment in his client’s favour, and submitting that the existence of that judgment meant that there could be no reasonably arguable basis for opposing a setting aside of the bankruptcy notice.
[3]Haines v Memelink [2021] NZHC 1063.
Written submissions in support of the application were filed before delivery of…

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 [2022] NZCA 82
Case: [2022] NZCA 82
Decision Date: 24 March 2022 at 3.00 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Quentin Stobart Haines appealed against the Associate Judge's refusal to set aside a bankruptcy notice issued by Harry Memelink and Cisca Forster as trustees of the Link Trust No 1 against him as debtor. The bankruptcy notice was issued in relation to a costs order made in 2020 jointly against Haines and another party. Haines applied to set aside the bankruptcy notice, but the Associate Judge declined to do so, and his judgment was the subject of the appeal. The primary ground of appeal was that the Associate Judge should have taken into account a costs decision in another proceeding between the parties, issued by another judge after service of the bankruptcy notice, but before the Associate Judge's judgment.

The legal issues the court had to decide were whether the Associate Judge should have taken into account the costs decision issued after the bankruptcy notice was served but before the Associate Judge's judgment, and whether there were any other grounds for setting the bankruptcy notice aside. The court found that the Associate Judge should have taken into account the costs decision, which operated as a defence to the Grice J costs order and met the requirement of mutuality. The court also found that there were no other grounds for setting the bankruptcy notice aside.

The court set aside the Associate Judge's judgment and allowed the appeal. The bankruptcy notice issued by the respondents was set aside, and the respondents were ordered to pay one half set of costs to the appellant for a two-hour appeal on a band A basis and usual disbursements. The High Court costs order in favour of the respondents was set aside, and costs in the High Court were to lie where they fall.

Orders