Memelink v Body Corporate 81012 - [2023] NZCA 639

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA447/2023
[2023] NZCA 639

BETWEEN	HARRY MEMELINK AND CISCA JOHNETTE FORSTER AS TRUSTEES OF THE LINK TRUST (No. 1) Applicants
AND	BODY CORPORATE 81012, BODY CORPORATE 68792 AND BODY CORPORATE 378945 Respondents

Court:	Courtney and Collins JJ
Counsel:	Applicants in person A S Olney for Respondents P R W Chisnall and C R Vinnell for Official Assignee G A D Neil and R M G Hindriksen for Lynx Trustees Ltd (in Liq)
Judgment: (On the papers)	13 December 2023 at 9.30 am

JUDGMENT OF THE COURT

AThe application under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time to bring an appeal is declined.
BThe application to stay the appointment of receivers is declined.
CThe application to adduce further evidence is declined.
DThe application challenging the status of counsel for the receivers is declined.

EThe respondents are entitled to costs on a band A basis together with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

This judgment addresses four applications:
(a)An application under r 29A of the Court of Appeal (Civil) Rules 2005 (the Rules) to extend time to appeal a judgment delivered by the High Court on 31 May 2022.[1]
(b)An application to stay the appointment of receivers to a trust.
(c)An application to adduce further evidence.
(d)An application challenging the status of counsel for the respondents.

Background

[1]Body Corporate 81012 v Memelink [2022] NZHC 1244 [High Court judgment].

The applicants, Mr Memelink and Ms Forster, are the trustees of the Link Trust (No 1) (the Trust). Lynx Trustees Ltd (Lynx), which was placed into liquidation in 2019, was also a trustee of the Trust.
For many years, Mr Memelink did business and owned properties through the Trust. Mr Memelink was adjudicated bankrupt in August 2018 but has continued to direct, manage and conduct litigation on behalf of the Trust.
On 31 May 2022, Churchman J determined three cases involving Mr Memelink and the Trust (the High Court judgment).[2] As a consequence of the High Court judgment, receivers were appointed to the Trust.
[2]High Court judgment, above n 1.
On 3 June 2022, Mr Memelink and Ms Forster filed in this Court:
(a)a notice of appeal from the High Court judgment; and
(b)an application to stay the appointment of the receivers of the Trust.
The application to stay the appointment of the receivers was declined by this Court on 27 July 2022.[3]
[3]Memelink v Body Corporate 81012 [2022] NZCA 333.
On 3 September 2022, the appeal was deemed abandoned for want of prosecution pursuant to r 43(1) of the Rules.
Mr Memelink and Ms Forster then filed an application for an extension of time to file a case on appeal and to apply for a fixture. They also filed a second application to stay the appointment of receivers. Those applications were declined by this Court on 29 November 2022.[4]
[4]Memelink v…

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: [2023] NZCA 639
Decision Date: 13 December 2023 at 9.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Mr. Harry Memelink and Ms. Cisca Johnette Forster, as trustees of the Link Trust (No. 1), sought to appeal several judgments made by the High Court against them and the Trust. The primary dispute involved the appointment of receivers to the Trust, which was a result of the High Court judgment. The respondents in this appeal were Body Corporate 81012, Body Corporate 68792, and Body Corporate 378945. The court was required to decide on four main legal issues: whether to grant an extension of time to appeal the High Court judgment, to stay the appointment of receivers, to allow the introduction of further evidence, and to challenge the status of counsel representing the respondents.

The court found that the applicants had exhibited vexatious and prolix conduct throughout the litigation. The application for an extension of time to appeal was made over 263 working days after the deadline, with no substantial justification for the delay. The alleged "fresh evidence" did not pertain to the High Court judgment and included unsubstantiated claims of corruption. The applicants had already had two opportunities to stay the appointment of receivers, and the court saw no reason to change its previous decisions. The proposed additional evidence was deemed irrelevant and unhelpful to the issues at hand. Lastly, the court dismissed the challenge to the status of the respondents' counsel, stating that the absence of merit in the applications was not affected by the counsel's instructions.

Consequently, the court declined all four applications. The appeal time extension was denied, the stay on the receivers' appointment was not granted, the introduction of further evidence was disallowed, and the challenge to the respondents' counsel was rejected. The respondents were awarded costs on a band A basis along with usual disbursements. This decision underscored the importance of adhering to court deadlines and the necessity of presenting relevant and substantiated evidence in legal proceedings.

Orders