Link Technology 2000 Limited v Peterland Limited - [2022] NZHC 3506

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-000432

[2022] NZHC 3506

BETWEEN
LINK TECHNOLOGY 2000 LIMTIED

First Plaintiff

AND

HARRY MEMELINK

Second Plaintiff

AND

PETERLAND LIMITED

First Defendant

AND

PETER JEREMY DAWSON GOODSON

Second Defendant

Hearing: On the papers

Appearances:

D G O Livingston for Plaintiffs

P D Barrett and A Dalzell for Defendants

Judgment:

16 December 2022

JUDGMENT OF GRICE J

(Judgment on applications for leave to appeal)

Introduction

[1] Mr Memelink, the second plaintiff in these proceedings, seeks leave to appeal against two judgments refusing to make an order that the rights of the first plaintiff in this litigation vest in him.

[2] Link Technology 2000 Ltd (Link), the first plaintiff, went into liquidation on 23 May 2020. The Official Assignee was appointed liquidator. Mr Memelink is an

LINK TECHNOLOGY 2000 LIMTIED v MEMELINK [2022] NZHC 3506 [16 December 2022]

undischarged bankrupt.1 Counsel for Mr Memelink noted that Mr Memelink would in the usual course have been discharged from his bankruptcy in February 2022. However, Mr Memelink remains in bankruptcy at the present time.

[3] The applications for leave to appeal relate to two judgments dismissing Mr Memelink’s applications, firstly under s 119 of the Insolvency Act 2006 (s 119) (the s 119 judgment), and secondly under s 269 of the Companies Act 1993 (s 269) (the s 269 judgment).2 Both provisions allow a person “suffering loss or damage as a result of a disclaimer” to apply to the Court for an order that the disclaimed property be delivered to or vested in that person.3

[4] At the 22 February 2021 hearing when these two applications were originally heard, the Court gained the impression that Mr Livingston had abandoned the application under s 269 of the Companies Act. Although the application itself was intituled under both s 119 and s 269, and the notice of application referred to being under both of those sections, the matter was argued only on the basis of s 119 of the Insolvency Act. Mr Livingston’s synopsis of submissions related entirely to his arguments under s 119, and this was the approach he indicated to take at the hearing.

[5]In the course of the s 119 judgment I said:4

[3] The intituling of the application refers to s 269 of the Companies Act, which allows a person “suffering loss or damage as a result of a disclaimer” to apply to the Court for an order that the disclaimed property be delivered or vested in that person. However, Mr Memelink seeks to rely on s 119 of the Insolvency Act 2006, which allows a person “suffering loss or damage as a result of a disclaimer” by the Official Assignee in bankruptcy to apply for an order that the disclaimed property be delivered to or vested in the bankrupt.

[6] However, I subsequently became aware that Mr Livingston was under the impression he had not abandoned the s 269 application and that it would…

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.

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Details

Case: [2022] NZHC 3506
Decision Date: 16 December 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Mr. Memelink sought leave to appeal two judgments that refused to vest the rights of Link Technology 2000 Limited in him. The first plaintiff, Link Technology 2000 Limited, went into liquidation, and Mr. Memelink, the second plaintiff, sought to claim the rights of the first plaintiff under sections 119 of the Insolvency Act 2006 and 269 of the Companies Act 1993. The Official Assignee, who holds the disclaimed property, refused to vest the rights in Mr. Memelink. The primary legal issue was whether Mr. Memelink had suffered loss or damage as a result of the disclaimer, as required under sections 119 and 269.

The court found that Mr. Memelink had not suffered loss or damage as required by either section. In the case of Mr. Memelink's bankruptcy, the court held that he had no personal interest in the claim. Furthermore, in terms of the liquidation, the court found that the only loss or damage he pointed to was as a shareholder of Link, which had no basis. The court also noted that the claim by Link was weak and had little merit, and the defendants had been prejudiced by the delay and lack of compliance with the disclosure requirements.

Considering the principles for granting leave to appeal, the court held that the applications for leave to appeal should be dismissed. The court found that the claim was intensely fact-specific, and there was no question of law or general principle of sufficient importance to warrant the cost and delay of the appeal. Moreover, granting leave to appeal in this case would be inconsistent with the maintenance of the integrity of the court process. Consequently, the applications for leave to appeal were dismissed, and costs were awarded on a 2B basis.

Orders