IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-315
[2022] NZHC 3402
BETWEEN QUENTIN STOBART HAINES
First Applicant
BPE TRUSTEES (NO 1) LIMITED
Second ApplicantQUENTIN HAINES PROPERTIES LIMITED
Third ApplicantAND
HARRY MEMELINK and LYNX TRUSTEES LIMITED
First Respondents
ROY WILLIAM BASSETT-BURR
Second Respondent
On the papers: Counsel:
J D Dallas for Applicants
J G O Livingston for Respondents
Judgment:
14 December 2022
JUDGMENT OF CHURCHMAN J
[Costs and leave to appeal]
Introduction
[1] On 11 November 2022, I granted an application for a non-party costs award against Mr Bassett-Burr.1 In this judgment, I address costs in respect of the hearing that took place regarding the non-party costs order, and also an application by Mr Bassett-Burr for leave to appeal.
1 Haines & Ors v Memelink and Lynx Trustees Ltd & Anor [2022] NZHC 2966.
HAINES v MEMELINK (COSTS AND LEAVE TO APPEAL) [2022] NZHC 3402 [14 December 2022]
[2] Mr Basset-Burr alleges that a grant of leave to appeal is appropriate in the circumstances on the basis that it is ‘seriously arguable’ that the judgment contains errors of law.
[3] Mr Haines opposes the application for leave, and seeks costs of $36,387.75, plus disbursements of $890.
[4] For the reasons below, I am of the view that the application for leave should be dismissed, and costs awarded in the sum of $18,075, plus disbursements of $890.
Leave to appeal
Mr Bassett-Burr
[5] Mr Livingston, on behalf of Mr Bassett-Burr, submits that the non-party costs aspect of this proceeding cannot be regarded as a normal interlocutory application, as the application was filed following the conclusion of the substantive proceedings. He says that such a matter would normally have a right of appeal, as it was in reality a substantive issue for Mr Basset-Burr, which has been finally determined. He says that it is therefore appropriate to grant leave, particularly as if the matter was not advanced by interlocutory application there would have been a right of appeal. He submits that it is impossible for the appeal to cause delay to the substantive matter.
[6] Mr Livingston submits that the appeal has merit. He says that the decision did not address:
(a)the arguments relating to the case being within the ordinary run of cases and bona fides;
(b)the fact that technical issues with the statutory demands were no bar to their enforcement;
(c)arguments relating to the proceeding being inevitable regardless of the non-party’s involvement;
(d)the premature nature of the claim that the receivers of the Link Trust (No 1) (the Trust) are unable to settle Trust debts, as that process is still underway;
(e)the fact that the statutory demands were withdrawn on 17 June 2019;
(f)arguments regarding setoffs, counterclaims, and cross demands between the Haines interests and the Trust; and
(g)evidence which established that the Haines interests have a significant debt to the Trust.
[7] Mr Livingston says that the award of non-party costs is significant and will place…
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