Link Technology 2000 Ltd v Peterland Limited - [2021] NZHC 2550

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-000432

[2021] NZHC 2550

BETWEEN
LINK TECHNOLOGY 2000 LTD

First Plaintiff

HARRY MEMELINK
Second Plaintiff

AND

PETERLAND LIMITED

First Defendant

PETER JEREMY DAWSON GOODSON

Second Defendant

Hearing: 2 July and 9 August 2021

Appearances:

D Livingston for the Plaintiffs P Barrett for the Defendants

Judgment:

28 September 2021

JUDGMENT OF GRICE J

Introduction

[1] Mr Memelink was declared bankrupt on 28 August 2018. The first plaintiff, Link Technology 2000 Ltd, in which Mr Memelink was a 100 per cent shareholder, was placed into liquidation on 23 May 2020. The Official Assignee was appointed liquidator and has disclaimed any interest he has in these proceedings on 19 June 2020.1

[2] The Official Assignee, as administrator of Mr Memelink’s bankrupt estate, has also disclaimed any interest in this litigation.

1 The liquidator disclaimed any interest in the litigation under s 269 of the Companies Act 1993.

LINK TECHNOLOGY 2000 LTD v PETERLAND LIMITED [2021] NZHC 2550 [28 September 2021]

[3] Mr Memelink had earlier sought an order that this action be vested in him under s 119 of the Insolvency Act 2006. That application was unsuccessful.2

[4] At the same time as Mr Memelink made an application under s 119 of the Insolvency Act he made an application under s 269 of the Companies Act 1993 that the disclaimed property, being the present action, be vested in him. The Court, at the hearing of the s 119 application, had been under the impression that the application under s 269 of the Companies Act had been abandoned. It was not referred to in written submissions nor in oral submissions and Mr Livingston, for Mr Memelink, indicated he did not intend to address it. In that regard the Court said:3
[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.

[5] Therefore, the s 269 application was not addressed in the judgment, nor was it specifically dismissed.

[6] Subsequently, Mr Memelink made an application for leave to appeal the s 119 judgment and it became apparent that, despite the impression the Court and the defendant were under, Mr Memelink had not abandoned the s 269 claim and it remained extant. Therefore, counsel agreed that the application should be properly heard and dealt with before any further steps were taken.

[7]This judgment deals with the application under s 269 of the Companies Act.

Background

[8] The background to these…

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 Link Technology 2000 Ltd v Peterland Limited

Details

AGLC: Link Technology 2000 Ltd v Peterland Limited [2021] NZHC 2550
Case: [2021] NZHC 2550
Decision Date: 28 September 2021

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide whether the proceedings, which had been disclaimed by the liquidator, should be vested in Mr Memelink, a former shareholder of the plaintiff company. The court had to determine if Mr Memelink was suffering loss or damage as a result of the disclaimer and whether it was just that the proceedings should be vested in him. The court considered various factors including the merits of the case, the funding available, and the delay in prosecuting the proceedings. The court found that Mr Memelink could not establish that he was suffering loss or damage, and that it was not just to vest the proceedings in him. The application was dismissed.

The court's reasoning was based on the evidence presented and the circumstances of the case. The court found that the loss or damage claimed by Mr Memelink was vague and indirect, and that there was no evidence of the likely financial position of the company in liquidation. The court also noted the substantial delay in prosecuting the proceedings, which had prejudiced the defendant. The court considered the delay and the lack of evidence concerning funding, and concluded that it was not just to vest the proceedings in Mr Memelink. The application was dismissed and the court ordered that costs be paid by the applicant.

Orders