Memelink v Collins and May Law

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 74/2022
[2024] NZSC 16

BETWEEN	HARRY MEMELINK Applicant
AND	COLLINS & MAY LAW Respondent

Court:	Williams, Kós and O’Regan JJ
Counsel:	Applicant in person H M Twomey for Respondent
Judgment:	23 February 2024

JUDGMENT OF THE COURT

The application for recall is dismissed.

____________________________________________________________________

REASONS

This is an application for recall of the judgment of this Court delivered on 10 November 2022 declining to extend time to apply for leave to appeal.[1] The respondent abides the Court’s decision.
[1]Memelink v Collins & May Law [2022] NZSC 130 (O’Regan, Williams and Kós JJ) [SC decision].
The underlying proceeding is a bankruptcy order made in the High Court in August 2018.[2] The application for extension of time to appeal that order was made a year out of time to the Court of Appeal. That Court declined extension.[3] The applicant then sought extension of time to appeal to this Court. That application was more than two years out of time.
[2]Re Memelink HC Wellington CIV-2018-485-363, 28 August 2018 (Associate Judge Johnston).
[3]Memelink v Collins & May Law [2020] NZCA 62 (Cooper and Wild JJ).
In declining extension of time we noted that the Court of Appeal applied principles set out in this Court’s decision in Almond v Read.[4]We also recorded that the Associate Judge had found that, even on the applicant’s own analysis, his assets were exceeded by his liabilities by more than $5.5 million.[5]
[4]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.
[5]SC decision, above n 1, at [3].
In applying for recall of that judgment (more than a year after its delivery) the applicant makes a number of complaints against his former solicitor (and one of his creditors), Quentin Haines. It may be noted that Mr Haines has since been found guilty by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal of seven charges of misconduct and two charges of unsatisfactory conduct under ss 7 and 12 of the Lawyers and Conveyancers Act 2006, a finding since upheld by the High Court.[6]
[6]Haines v National Standards Committee (No 1) [2023] NZHC 3039.
Other complaints are made as well, and the application is not entirely coherent. However, the gist of it is this:
I say that Haines defective and illegal creditors proposal and his fraud $1M + GST invoice were influential in in Associate Judge Johnston’s decision to adjudicate me bankrupt and this needs to be taken into consideration with this proceeding and the recall of judgement.
Recall is an exceptional procedure; recall apart, a decision of this Court is, and must be, final.[7] A judgment will only be recalled in three exceptional circumstances, being those identified in Horowhenua County v Nash (No 2).[8] The third and sole potentially appropriate circumstance in this case is where for some very special reason justice requires that the judgment be recalled, such as a procedural or substantive error that would result in a miscarriage of justice.[9]
[7]Wong v R [2011] NZCA 563 at [13]; and Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [20].
[8]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633; as applied by this Court in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2]; and Green Growth No 2 Ltd v Queen Elizabeth the Second National Trust [2018] NZSC 115 at [20].
[9]Uhrle, above n 7, at [25]–[27].
Putting to one side the incoherence of the application and the informal submission of evidence associated with it, the difficulty with the present application is that even if Mr Haines’ $1.15 million invoice is discounted, on his own evidence the applicant’s liabilities (including those to the respondent) exceeded his assets (which were just $6,000) by over $4.35 million (including secured creditors exceeding $2.6 million). It is not therefore apparent that a procedural or substantive error has occurred that would result in a miscarriage of justice in allowing the bankruptcy order, made more than five years ago now, to stand.

Result

The application for recall is dismissed.
As no substantial response was required of the respondent, we make no order for costs.

Solicitors:
Robertsons, Auckland for Respondent

CaseChat Overview and Summary

This case involved an application by Harry Memelink, the applicant, against Collins & May Law, the respondent, seeking recall of a Supreme Court judgment. The judgment in question had declined to extend the time for the applicant to apply for leave to appeal a bankruptcy order issued by the High Court in 2018. The bankruptcy order was upheld by the Court of Appeal, which had rejected the applicant's request for an extension of time to appeal. Memelink then sought an extension of time from the Supreme Court, which was also declined. More than a year later, Memelink applied for the recall of this judgment, alleging misconduct and fraud by his former solicitor, Quentin Haines, and others. The application was largely incoherent but generally argued that Haines' conduct had influenced the original decision to declare him bankrupt and that this warranted the recall of the judgment.

The legal issues before the court were whether the application for recall met the exceptional circumstances required for such a remedy under New Zealand law. The court had to consider whether there had been a procedural or substantive error that would result in a miscarriage of justice if the original judgment was allowed to stand. The applicant argued that Haines' actions, including what was alleged to be a fraudulent invoice, had influenced the original decision, thereby justifying the recall of the judgment. The court also needed to assess the coherence and merits of the application, despite the informal evidence presented.

The Supreme Court found that the application for recall did not meet the exceptional circumstances required for such a remedy. The court noted that the application was incoherent and the evidence was informal. However, even if the applicant's allegations about Haines were accepted, the applicant's financial situation indicated that his liabilities significantly exceeded his assets, making it unlikely that the bankruptcy order resulted from a procedural or substantive error. Therefore, the court concluded that justice did not require the recall of the judgment. The applicant's financial standing, irrespective of the conduct of Haines, supported the original decision to declare him bankrupt.

The Supreme Court dismissed the application for recall, affirming the original judgment. Given that the respondent did not need to provide a substantial response, the court made no order for costs. The final decision upheld the earlier judgment, which had declined to extend the time for Memelink to appeal the bankruptcy order.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established