Memelink v Collins & May Law - [2022] NZSC 130

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 74/2022
[2022] NZSC 130

BETWEEN	HARRY MEMELINK Applicant
AND	COLLINS & MAY LAW Respondent

Court:	O’Regan, Williams and Kós JJ
Counsel:	B J Norling and A Cherkashina for Applicant H M Twomey for Respondent
Judgment:	10 November 2022

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for leave to appeal is dismissed.

BThere is no order as to costs.

____________________________________________________________________

REASONS

The applicant, Mr Memelink, seeks an extension of time to apply for leave to appeal (and, if the extension is given, applies for leave to appeal) against the decision of the Court of Appeal.[1] The decision of the Court of Appeal was delivered on 25 March 2020, so the application was filed in this Court more than two years out of time.
[1]Memelink v Collins & May Law [2020] NZCA 62 (Cooper and Wild JJ) [CA judgment].
The Court of Appeal decision dealt with an application by Mr Memelink for an extension of time to appeal to the Court of Appeal against the High Court judgment adjudicating him bankrupt.[2] Mr Memelink’s application to the Court of Appeal was about a year out of time.
[2]Re Memelink HC Wellington CIV-2018-485-363, 28 August 2018 (Associate Judge Johnston).
The Associate Judge who adjudicated Mr Memelink bankrupt delivered his reasons for doing so on the day after the adjudication decision. In those reasons he referred to the fact that Mr Memelink had filed a proposal to creditors under Subpart 2 of Part 5 of the Insolvency Act 2006, which Mr Memelink had filed two working days before the adjudication hearing. Mr Memelink had not alerted his creditors to that proposal. He sought an adjournment of the adjudication hearing to enable the proposal to be put to the creditors for their vote, but this was opposed by the creditors represented at the adjudication hearing and the Associate Judge refused to adjourn the hearing. The Associate Judge noted that on Mr Memelink’s own analysis, his assets were exceeded by his liabilities by more than $5,500,000.
Mr Memelink did not immediately appeal to the Court of Appeal against the decision adjudicating him bankrupt, but instead applied to the High Court for an annulment of his adjudication. That application was dismissed on 14 June 2019.[3] The application for an extension of time to appeal to the Court of Appeal against the adjudication decision was filed about three months after the decision of the High Court refusing the annulment.
[3]Memelink v Official Assignee [2019] NZHC 1357 (Associate Judge Lester).
In its decision, the Court of Appeal applied the principles set out in this Court’s decision in Almond v Read.[4] In Almond v Read, this Court set out five factors that are likely to require consideration when the Court is determining whether to extend the time for filing of an appeal.[5] In the present case, the Court of Appeal evaluated each of those…

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: [2022] NZSC 130
Decision Date: 10 November 2022

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Mr. Harry Memelink sought an extension of time to apply for leave to appeal against the decision of the Court of Appeal, which was delivered on 25 March 2020. The application was filed more than two years out of time. The Court of Appeal had previously dismissed Mr. Memelink's application for an extension of time to appeal against the High Court judgment adjudicating him bankrupt, which was delivered on 28 August 2018. The Associate Judge who adjudicated Mr. Memelink bankrupt found that his assets were exceeded by his liabilities by more than $5,500,000. Mr. Memelink did not appeal the adjudication decision immediately but instead applied to the High Court for an annulment, which was dismissed on 14 June 2019. The Court of Appeal applied the principles set out in Almond v Read to determine whether to extend the time for filing an appeal and concluded that the grounds of appeal were without merit.

The legal issues in this case involved the principles set out in Almond v Read for determining whether to extend the time for filing an appeal and whether to grant leave to appeal. The Court of Appeal had already evaluated the five factors set out in Almond v Read and concluded that the grounds of appeal were without merit. Mr. Memelink's explanation for the delay in making his application to the Supreme Court largely focused on the misconduct of his former lawyer, who had been the subject of disciplinary proceedings by the New Zealand Law Society. However, this did not fully explain a delay of more than two years since the Court of Appeal decision was delivered.

The Supreme Court found that the delay in bringing the application was not adequately explained, and even if it were, there was no proper basis on which leave to appeal could be granted, applying the criteria set out in s 74 of the Senior Courts Act 2016. The application for an extension of time to apply for leave to appeal was dismissed, and there was no order as to costs. The Court concluded that no point of public importance arose from the Court of Appeal's refusal of an extension of time to appeal to that Court, nor did it see any basis for criticism of the way in which the Court of Appeal applied the factors set out by the Supreme Court in Almond v Read such as to give rise to a risk of a miscarriage of justice.

Orders