Memelink v Collins & May Law - [2024] NZHC 3869

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-000827

[2024] NZHC 3869

UNDER THE
Crimes Act 1961

High Court Rules 2016
Lawyers & Conveyancing Act 2016 Insolvency Act 2006

Bill of Rights Human Rights Act

IN THE MATTER OF

A substantive application regarding a fraudulently obtained judgment in CIV- 2018-485-363, the High Court breaching its duties of care by allowing a fraudulent proposal and affidavit to be filed by Quentin Haines

BETWEEN

HARRY MEMELINK

Applicant

AND

COLLINS & MAY LAW

Respondent

Hearing: (On the papers)

Counsel:

Applicant in person

Judgment:

17 December 2024

JUDGMENT OF LA HOOD J

(Application for review of Registrar’s decision)

[1] Mr Memelink was adjudicated bankrupt in August 2018.1 He refuses to accept the validity of his bankruptcy and his repeated attempts to challenge it have been

1 Re Memelink HC Wellington CIV-2018-485-363, 28 August 2018 (Associate Judge Johnston).

MEMELINK v COLLINS & MAY LAW [2024] NZHC 3869 [17 December 2024]

dismissed, including at Supreme Court level.2 In his statement of claim dated 7 December 2024 (and supporting documentation) he applies for orders setting aside the bankruptcy on the grounds that it was obtained by fraud. The Registrar refused to accept these documents for filing. Mr Memelink challenges that decision under r 2.11(1)(b) of the High Court Rules 2016 (the Rules), which permits the Judge on review to “… make any orders he or she thinks just”.3

[2] A Registrar (including a Deputy Registrar) has the power to refuse to accept documents for filing either because they do not comply with the Rules or otherwise are an abuse of the Court’s process or contrary to a Court direction.4

[3] I have no hesitation in dismissing the application for review on the grounds that the proposed proceeding is plainly an abuse of process.

Background

[4] On 13 May 2024, McQueen J dismissed Mr Memelink’s application to review the decision of the Registrar to decline to accept for filing Mr Memelink’s application to recall the August 2018 bankruptcy judgment. In doing so, McQueen J set out the relevant background as follows:5
[6] The three proceedings that are the subject of Mr Memelink’s application for recall include two bankruptcy proceedings in which the law firm Collins & May Law sought orders adjudicating Mr Memelink bankrupt, and a third proceeding which was a proposal to creditors by Mr Memelink pursuant to sub pt 2 of pt 5 of the Insolvency Act 2006.

[7] Associate Judge Johnston heard the applications for bankruptcy together. Both applications were based on bankruptcy notices related to costs judgments made against Mr Memelink.6 Mr Memelink sought the adjournment of the applications for bankruptcy in order to enable his proposal to be put to his creditors. The creditors had not been alerted to Mr Memelink’s

2      Memelink v Collins & May Law [2022] NZSC 130; and Memelink v Collins & May Law [2024] NZSC 16.
3      High Court Rules 2016, r 2.11(2).
4      LFDB 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: [2024] NZHC 3869
Decision Date: 17 December 2024

CaseChat Overview and Summary

In Memelink v Collins & May Law, Harry Memelink sought to set aside his bankruptcy by filing an affidavit and memorandum alleging fraud and procedural errors. The Registrar refused to accept these documents, leading to this substantive application under the High Court Rules 2016. The legal issues before the Court were whether the Registrar's decision to refuse filing was justified and if the proposed proceeding was an abuse of process. The Court held that the Registrar's decision was justified as Mr Memelink's application for recall was an abuse of process, given his previous unsuccessful attempts to challenge the bankruptcy judgment, including at the Supreme Court level. The Court emphasised the importance of finality in litigation and noted that Mr Memelink's allegations of fraud and procedural errors were not new and had already been considered and dismissed by higher courts. The Court concluded that allowing the application would be an abuse of the Court's process and dismissed the application for review.

The Court further found that Mr Memelink's attempts to circumvent the earlier judgments by filing a separate proceeding were inappropriate and amounted to an abuse of process. The Court reiterated that the doctrine of res judicata applied, and there was no justification for allowing Mr Memelink to pursue his claims again. The Court held that the Registrar's decision to refuse to accept the documents for filing was correct and dismissed the application for review. The Court emphasised that the repeated attempts by Mr Memelink to challenge the bankruptcy judgment were an abuse of the Court's process and highlighted the importance of adhering to the principles of finality and res judicata in litigation.

Orders