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Matthews v Memelink

Matthews v Memelink

Case [2021] NZHC 1754 13 July 2021

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2010-404-8520

CIV-2011-404-1400 [2021] NZHC 1754

BETWEEN
CECILE ANN MATTHEWS

Plaintiff

AND

HARRY MEMELINK and CISCA

FORSTER as Trustees of the Link Trust No. 1

Defendants

Hearing: 12 July 2021

Appearances:

D J Rooke for plaintiff

DGO Livingston for defendants

Judgment:

13 July 2021

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 13 July 2021 at 4.30pm.
Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:
David Rooke Law Office, Auckland Livingston & Livingston Limited Gibbs Mills Livingstone, Auckland

MATTHEWS v MEMELINK [2021] NZHC 1754 [13 July 2021]

[1] The plaintiff seeks final orders to seal this Court’s 5 September 2012 judgment.1 In that judgment, Andrews J awarded the plaintiff a half-share in the purchase price of a property, and the defendant trustees a sum in rental of that property for the plaintiff’s occupation of it.2 The “final balance payable” remained to be determined.3 The defendant trustees informally seek to recall Andrews J’s judgment, effectively to redetermine if her Honour’s award to the plaintiff should stand. Otherwise, it is common ground the final balance falls in the plaintiff’s favour.

Recall

[2] In a subsequent proceeding in this Court, Clifford J held on 15 March 2016 the trust’s lawyers were liable to pay the trust negligence damages in the amount of that half-share.4 That judgment was overturned on appeal.5 In doing so, the Court of Appeal observed the half-share’s award to the plaintiff:6

… was attributable not to any negligence on the part of Collins & May Law but to Mr Memelink’s failure to produce at the hearing Ms Matthews’s written acknowledgement that her interest in the Pakuranga property was available to secure and satisfy the indebtedness of Mr Hoyte and/or JHAL to Mr Memelink and Link Technology.

… It is clear that Andrews J was satisfied that the settlement was effected in a way which precluded any personal claim by Mr Hoyte without the need for a fuller explanation of the transaction in the settlement statement. It was Mr Memelink’s failure to put in evidence Ms Matthews’s acknowledgement of 27 May 2004, not anything done on settlement by Collins & May Law, that led Andrews J to find him liable to Ms Matthews for her share of the purchase price.

[3] Mr Memelink now seeks to put in evidence Ms Matthews’ acknowledgment of 27 May 2004 in support of his informal application to recall Andrews J’s decision. His affidavit sworn 9 July 2021 contends it is “a document which was discovered after a decision was released in these proceedings”. The defendant trustees’ counsel, Digby Livingston, explained in answer to my query the document was provided on discovery by the trust’s lawyers in the proceeding brought against them. There is long-

1 Matthews v Memelink [2012] NZHC 2284.
2 At [120] and [123]. The defendant trustees now are Harry Memelink and Cisca Forster, to which this…

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 Matthews v Memelink

Details

AGLC: Matthews v Memelink [2021] NZHC 1754
Case: [2021] NZHC 1754
Decision Date: 13 July 2021

CaseChat Overview and Summary

In Matthews v Memelink, the High Court of New Zealand considered the plaintiff's application to finalise the outstanding balance of a judgment awarded by Andrews J in 2012. The plaintiff, Cecile Ann Matthews, sought to seal the judgment which awarded her a half-share in the purchase price of a property. The defendants, Harry Memelink and Cisca Forster as trustees of the Link Trust No. 1, contested the final balance payable. The court was required to decide whether the defendants could recall Andrews J's judgment based on a newly discovered document and if the errors in the judgment could be corrected.

The court found that the defendants' attempt to recall the judgment was not warranted. The court held that the threshold for recall is high, and only applies under constrained circumstances such as an amendment to a relevant statute or regulation, a new judicial decision of relevance and high authority, or some other very special reason. The court determined that none of these grounds applied in this case. The court also found that the newly discovered document did not justify recalling the judgment as it was available to the defendants at the time of the original judgment and could have been tendered as evidence. Additionally, the court held that the errors in the judgment were accidental slips and could be corrected.

The court corrected the errors in the judgment and determined the final balance payable. The plaintiff was entitled to receive $155,715.33 plus $69,192.11 interest, while the defendants were entitled to receive $151,405.71 plus $26,607.85 interest. The court also ordered that the $60,000 held in the defendant trustees' solicitors' trust account be retained in Court pending the outcome of any application for an extension of time in which to appeal.

The court ordered that the defendant trustees were liable to pay the plaintiff the net sum of $46,893.88, plus interest. The costs were to lie where they fell. The court directed that its order lie in Court pending the defendant trustees' filing of any application for stay within five working days of the date of this judgment. If no such application was filed, the court directed that the Registrar transfer the judgment sum to the plaintiff from the sum held by the Registry as security in this proceeding, plus interest calculated in accordance with the High Court Rules.

Orders