Memelink v Collins & May Law - [2019] NZSC 114

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 87/2019
[2019] NZSC 114

BETWEEN	HARRY MEMELINK AND LYNX TRUSTEES LIMITED AS TRUSTEES OF LINK TRUST (NO 1) First Applicant
AND	HARRY MEMELINK Second Applicant
AND	COLLINS & MAY LAW Respondent

Court:	Winkelmann CJ, Glazebrook and O’Regan JJ
Counsel:	Second Applicant in person E J Collins for Respondent
Judgment:	11 October 2019

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for leave to appeal is dismissed.
BThe first applicant must pay the respondent costs of $2,500. Given the position at [2], we make no costs award against the second applicant.

____________________________________________________________________

REASONS

Introduction

On 2 September 2019, the applicants applied for leave to appeal against a judgment of the Court of Appeal of 23 November 2017.[1] The application for leave to appeal is over one year out of time. The applicants therefore also apply for an extension of time to apply for leave to appeal.
[1]Collins & May Law v Memelink and Renshaw as Trustees of the Link Trust (No 1) [2017] NZCA 541 (Miller, Simon France and Toogood JJ) [CA judgment].
The second applicant, Mr Memelink, is bankrupt. The Official Assignee filed a memorandum on 8 October 2019 informing the Court that Mr Memelink has not sought the approval of the Official Assignee to bring the application and that Mr Memelink may not therefore advance the application. The Court had already considered the merits of the application before receiving that memorandum. Given the application is also made by the first applicant, it is necessary for the Court to address the merits. As we have decided the application for an extension of time is dismissed and the application for leave would also have been dismissed, we do not need to make a ruling on the matters raised by the Official Assignee. We therefore simply note the Official Assignee’s position and proceed to deal with the application on its merits.

Background

In late August 2006, the second applicant, Mr Memelink, instructed the respondent, Collins & May Law, to act for his family trust, the Link Trust (No 1) (the Trust), to settle the purchase of a property. The property at the time was owned by Mr Hoyte and his wife, Ms Matthews, as tenants in common in equal shares. The transaction had its origins in an agreement entered into in November 2003, settling a dispute between Mr Memelink and Mr Hoyte over the ownership of a company, John Hoyte and Associates Ltd, and related issues.
Although the purchase price was agreed to be $570,000, Mr Memelink instructed Collins & May Law that the arrangements he had entered into for the transfer of the property to the Trust were such that the Trust would be required to pay only $232,569.34 to complete the settlement. Mr Memelink said the balance of the purchase price would be met by setting off amounts owed to Mr Memelink and related entities.
On 5 September 2012, Ms Matthews…

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: [2019] NZSC 114
Decision Date: 11 October 2019

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an application from Harry Memelink and Lynx Trustees Limited as Trustees of Link Trust (No 1) against Collins & May Law. The applicants sought an extension of time to apply for leave to appeal a decision of the Court of Appeal. The Court of Appeal had previously dismissed an appeal by the applicants against a judgment of the High Court. The applicants argued that the Court of Appeal had erred in fact or law and that they were deprived of certain documents which would have changed the result. The Court of Appeal had found in favour of Collins & May Law and dismissed the applicants' claims for damages. The applicants applied for an extension of time to apply for leave to appeal, as their application was over one year out of time. The Court had to decide whether to grant the extension of time and whether to grant leave to appeal if the extension was granted.

The Court found that there was no reasonable explanation for the delay in filing the application and that the application did not meet the leave criteria. The Court noted that the applicants had been put on inquiry before their email to their then lawyer in June 2018 and yet the application was only filed in September 2019, more than a year later. The Court found that the applicants had not identified any point of general or public importance arising from their proposed appeal and that nothing raised by the applicants suggested any risk of a miscarriage of justice. The Court found that the application for an extension of time for leave to appeal was therefore dismissed.

The Court ordered that the first applicant must pay the respondent costs of $2,500 and that no costs award be made against the second applicant. The Court noted that the respondent law firm had an employed lawyer acting for it in this application, but could nevertheless be awarded costs. The Court found that the application for leave to appeal was also bound to fail and that the costs award was appropriate in the circumstances.

Orders