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Haines v Memelink

Haines v Memelink

Case [2022] NZHC 3402 14 December 2022

Civil Litigation & Procedure

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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 Applicant

QUENTIN HAINES PROPERTIES LIMITED
Third Applicant

AND

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…

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] NZHC 3402
Case: [2022] NZHC 3402
Decision Date: 14 December 2022

CaseChat Overview and Summary

This case concerns an application for leave to appeal an interlocutory non-party costs order. The parties involved are Quentin Stobart Haines, BPE Trustees (No 1) Limited, and Quentin Haines Properties Limited, who are the applicants, and Harry Memelink and Lynx Trustees Limited, who are the first respondents. Roy William Bassett-Burr is the second respondent. The primary legal issue in this case is whether the second respondent, Bassett-Burr, should be granted leave to appeal the non-party costs order. The court considered the arguments put forward by both sides and concluded that the application for leave to appeal should be dismissed. The court found that the application was not reasonably arguable and was a delaying tactic. The court also awarded costs to the applicants in the sum of $18,075, plus disbursements of $890.

Orders