Lynx Trustees Limited (in liq) v Memelink

[2020] NZHC 2401

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2020-485-374

[2020] NZHC 2401

BETWEEN

LYNX TRUSTEES LIMITED (in liq)

Plaintiff

AND

HARRY MEMELINK

First Defendant

CISCA FORSTER and ROY BASSETT-BURR

Second Defendants

Hearing:

15 September 2020

Appearances:

L Hui for plaintiff

D Livingston for defendants

Judgment:

30 September 2020

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]    This is a summary judgment application. It was listed for a first call in the Associate Judge’s list on 15 September 2020. When it was called Ms Hui for the plaintiff and Mr Livingston for the defendants explained that they were largely in agreement that summary judgment could be entered for most of the relief sought, but the parties could not agree on some aspects which would have to be set down for argument.

[2]    At counsel’s request, I issue this interim judgment granting the plaintiff summary judgment by consent as to aspects of its claim, and will direct the Registrar to set the outstanding issues down for hearing.1

1      The judgment was originally issued in draft form to give counsel an opportunity to check that I had correctly understood the scope of their agreement, and their responses by memoranda dated 21 and 29 September 2020 confirmed that I had. This, then, is a judgment by consent.

LYNX TRUSTEES LIMITED (in liq) v MEMELINK [2020] NZHC 2401 [30 September 2020]

The plaintiff’s first cause of action

[3]    I enter judgment for the plaintiff in the form of a declaration that the plaintiff is entitled to be indemnified out of the trust fund in respect of:

(a)the trust debts referred to at paragraphs 13 (b), (c) and (d) of the plaintiff’s statement of claim;

(b)the liquidator’s reasonable remuneration and expenses;

(c)all other debts that may be admitted in the liquidation of the company incurred as a result of the plaintiff’s trusteeship of the trust.

[4]I also enter judgment for the plaintiff for the following:

(a)the trust debts in the sum of $47,549.76;

(b)the    liquidator’s    reasonable    remuneration    and    expenses    as    at 15 September 2020;

(c)interest on those sums pursuant to s 10 of the Interest on Money Claims Act 2016.

[5]    I make a declaration that the trust fund stands charged in favour of the plaintiff company with payment of the trust debts, the liquidator’s reasonable remuneration and expenses, all other debts that may be admitted in the liquidation of the company incurred as a result of the plaintiff’s trusteeship of the trust and interest.

[6]    I grant leave to the plaintiff to apply further in this proceeding for the entry of judgment for further liquidator’s remuneration and expenses incurred from the date of hearing to the date of completion of the liquidation of the company.

The plaintiff’s second cause of action

[7]    I make an order vesting the properties referred to in paragraph 10 of the plaintiff’s statement of claim in the names of the trustees of the Link Trust (No. 1), Harry Memelink and Cisca Forster.

Adjournment of proceeding

[8]    For the avoidance of doubt I adjourn the plaintiff’s claim insofar as it seeks indemnity in respect of the debt referred to at paragraph 13(a) of the statement of claim and insofar as it seeks orders in relation to property owned by the trustees of the trust in items (e) and (f) (ii) of the prayer for relief that follows the plaintiff’s second cause of action.

Costs

[9]I reserve costs.

Future case management

[10]   The Registrar is to liaise with counsel to set the outstanding matters down for a half day hearing as soon as conveniently possible.

Associate Judge Johnston

Solicitors:

Meredith Connell, Auckland for the plaintiff

Livingston & Livingston, Wellington for defendants