Memelink v Collins & May Law - [2020] NZCA 62

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA501/2019
[2020] NZCA 62

BETWEEN	HARRY MEMELINK Applicant
AND	COLLINS & MAY LAW Respondent

Court:	Cooper and Wild JJ
Counsel:	Applicant in person W Robertson for Respondent, abiding the Court’s decision A O’Connor for creditors Body Corporate 68792, Gambitsis Crombie Limited and Geoffrey Fawcet, in opposition D G Dewar for creditors Body Corporate 378945 and Body Corporate 81012, in opposition P Chisnall for Official Assignee, abiding the Court’s decision
Judgment: (On the papers)	25 March 2020 at 2.00 pm

JUDGMENT OF THE COURT

AThe application is declined.
BEach of the separately represented sets of creditors who opposed this application is entitled to their costs of preparing their memorandum in opposition to the application, on a band A basis plus usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

The application

Mr Memelink seeks an extension of time to appeal a judgment delivered by Associate Judge Johnston in the High Court on 28 August 2018.[1] Mr Memelink’s application is about a year out of time.

The background

[1]Re Memelink HC Wellington CIV-2018-485-363, 28 August 2018.

The judgment Mr Memelink seeks to appeal adjudicated him bankrupt. The Associate Judge’s reasons, delivered the following day, refer to a proposal to creditors which Mr Memelink filed on 23 August 2018, under sub-pt 2 of pt 5 of the Insolvency Act 2006. Mr Memelink did not alert his creditors to that proposal. Rather, he asked the Associate Judge to adjourn the hearing of the bankruptcy proceedings to enable Mr Memelink to put his proposal to his creditors for their vote. The creditors represented at Court opposed an adjournment and the Associate Judge refused it.
In his reasons, the Associate Judge noted:
[5] On the figures disclosed by Mr Memelink in his proposal he has assets of $6,000, secured debt of $2,605,000 and unsecured debt (including the judgment debts to Collins & May) of $2,945,714.26. So, on his own analysis, Mr Memelink’s assets are exceeded by his liabilities by more than $5,500,000. Essentially, the proposal that he intended putting to his creditors was that the secured creditors be paid in accordance with the contractual arrangements they have with him and the unsecured creditors share $600,000.
The Associate Judge summarised his reasons for adjudicating Mr Memelink bankrupt in this way:[2]
…
(c) in the end, this case involves two undisputed judgment debts. Collins & May served bankruptcy notices on 12 June 2018. Mr Memelink took no steps in response to the service of those notices. Collins & May issued proceedings on the strength of those notices on 4 July 2018. Mr Memelink did not file notices of opposition. Two working days prior to the hearing of Collins & May’s applications, he lodged a proposal which, as I understand it, has not yet been served on his creditors, and on the strength of that sought an indefinite adjournment which would force Collins & May to await the outcome of the…

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: [2020] NZCA 62
Decision Date: 25 March 2020 at 2.00 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application by Harry Memelink, the applicant, for an extension of time to appeal a judgment delivered by Associate Judge Johnston in the High Court on 28 August 2018. Memelink's application for an extension of time was about a year out of time. The judgment Memelink sought to appeal adjudicated him bankrupt. Memelink's application was opposed by the creditors represented by Messrs O'Connor and Dewar and the Official Assignee. The primary legal issue before the Court was whether the applicant was entitled to an extension of time to appeal the bankruptcy judgment. The Court considered various factors in determining this issue, including the length of the delay, reasons for the delay, conduct of the parties, particularly the applicant, prejudice to the respondents, and the significance of the issues raised by the proposed appeal.

The Court of Appeal declined the application for an extension of time. The Court found that the delay was about a year, and Memelink's reasons for the delay were not acceptable. The Court also found that Memelink's conduct, particularly his failure to cooperate with the Official Assignee in his bankruptcy, was unsatisfactory. The Court noted that the creditors opposed the application and submitted that there was prejudice and hardship to them due to the long-running bankruptcy matter. The Court found that the issues raised by the proposed appeal were not of public interest and lacked merit, as they largely repeated matters that had been unsuccessfully advanced in previous proceedings. As a result, the Court declined the application for an extension of time.

Each of the separately represented sets of creditors who opposed this application is entitled to their costs of preparing their memorandum in opposition to the application, on a band A basis and usual disbursements.

Orders