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 SM [2021] NZCA 445, (2021) 25 PRNZ 794; LFDB v SM [2021] NZSC 164; and Muir v Commissioner of Inland Revenue [2017] NZHC 2082.

5      Memelink v Collins & May Law [2024] NZHC 1187 [Judgment of McQueen J].

6      The bankruptcy application under  CIV-2018-485-363  related  to  a  costs  judgment  against  Mr Memelink in Memelink (as trustees of Link Trust (No 1)) v Collins & May Law [2018] NZHC 75. The bankruptcy application under CIV-2018-485-378 related to a costs judgment against Mr Memelink in Collins & May Law v Memelink (as trustees of Link Trust (No 1)) [2018] NZCA 29.

proposal and opposed an adjournment. The Associate Judge noted that on  Mr Memelink’s own analysis, his assets were exceeded by his liabilities by more than $5,500,000. The Associate Judge declined to adjourn the applications for bankruptcy and adjudicated Mr Memelink bankrupt in the CIV-2018-485-363 proceeding.7 The court file records that the application in the CIV-2018-485-378 proceeding was subsequently withdrawn. It also appears that the proposal to Mr Memelink’s creditors was not taken any further. Rather, in September 2018, Mr Memelink applied to annul the order adjudicating him bankrupt.8

[8]        The application for annulment was eventually heard by Associate Judge Lester in June 2019, and dismissed, as none of the grounds for annulment were made out.9

[9]        About three months later, Mr Memelink applied unsuccessfully to the Court of Appeal for an extension of time to appeal the 2018 bankruptcy judgment (the application being made about a year out of time).10 The Court of Appeal applied the Supreme Court decision in Almond v Read, asking what the interests of justice required.11 The Court of Appeal held that the grounds of the proposed appeal were without merit and largely repeated matters that were advanced when Mr Memelink unsuccessfully applied for an annulment of his bankruptcy.12 The Court of Appeal also said it was inappropriate for Mr Memelink to attempt to relitigate matters disposed of by a judgment of the High Court that he did not appeal, and declined his application.13

[10]      Mr Memelink then applied to the Supreme Court for an extension of time to apply for leave to appeal against the decision of the Court of Appeal (and, if the extension was given, applied for leave to appeal). The application was filed more than two years out of time. The Supreme Court did not accept that there was an adequate explanation for the delay in bringing the application nor any proper basis on which leave to appeal could be granted.14 Therefore, the application was dismissed.15

[11]      In October 2023, this Court allowed the Official Assignee’s objection to the automatic discharge of Mr Memelink from bankruptcy and prohibited Mr Memelink from making an application for discharge from bankruptcy before the expiration of three years or until the conclusion of the receivership of the relevant trust (the 2023 extension of bankruptcy decision).16

[12]      Mr Memelink also applied to recall the Supreme Court judgment declining to extend time to apply for leave to appeal. The Supreme Court noted that a judgment will only be recalled in three exceptional circumstances,

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

8      In proceeding CIV-2018-485-686.

9      Memelink v Official Assignee [2019] NZHC 1357.

10     Memelink v Collins & May Law [2020] NZCA 62.

11     At [9], see Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.

12     Memelink v Collins & May Law, above n 10, at [39].

13     At [39]–[40].

14     Memelink v Collins & May Law [2022] NZSC 130 at [8]–[9].

15 At [10].

16     Official Assignee v Memelink [2023] NZHC 3044.

being those identified in Horowhenua County v Nash (No 2).17 The Supreme Court dismissed the application for recall on the basis that it was not 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, to stand.18

[5]    In support of that application Mr Memelink filed an affidavit and memorandum. Those documents set out what Mr Memelink described as fraud and procedural and substantive errors that invalidated the decision to declare him bankrupt.

The decision records that Mr Memelink’s position included the following:19

[16] Mr Memelink says that  his understanding of the Supreme Court’s  recall judgment is that if he has overwhelming evidence of fraud, procedural errors and special circumstances then if he applies for a recall of the original judgment this should be granted. He therefore seeks a recall of the 2018 bankruptcy judgment or an annulment of his adjudication as bankrupt.

[6]    Having considered those matters, McQueen J dismissed the application for the following reasons:

[25]      First, I consider that an appeal against the 2018 bankruptcy judgment was plainly the course that Mr Memelink should have taken if he considered that decision to be wrong. Instead, Mr Memelink, an experienced litigant, pursued annulment of the bankruptcy order and then, belatedly, sought leave to appeal the 2018 bankruptcy order out of time. In taking those steps, he raised issues  which he raises again in the present application for recall.     Mr Memelink had no success in either the Court of Appeal or Supreme Court in persuading those courts that his case was one in which such leave should be granted. Nor could Mr Memelink persuade the Supreme Court to recall its judgment declining to extend time to apply for leave to appeal. This highlights the importance of finality in litigation, where Mr Memelink has (eventually) taken all possible steps to pursue an appeal, having made the earlier decision not to appeal within time. In my view, this is by itself a sufficient basis on which to decline to accept the application for recall.

[26]      I have nonetheless also considered Mr Memelink’s contention that fraudulent evidence underpinned the 2018 bankruptcy judgment and that he can file other evidence confirming this, that there was a failure of service of the bankruptcy order, and that the Official Assignee has not carried out its obligations under the Insolvency Act. Mr Memelink relies on these matters as constituting exceptional circumstances as contemplated by the third category set out in Horowhenua County v Nash (No 2), namely that for some very

17 Memelink v Collins & May Law [2024] NZSC 16 at [6] citing Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633, as applied by 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].

18 Memelink v Collins & May Law, above n 17, at [7]–[8].

19 Judgment of McQueen J, above n 5.

special reason, justice requires that the judgment be recalled, such as a procedural or substantive error that would result in a miscarriage of justice.20

[27]      Having considered the judgments involving Mr Memelink already referred to above, and especially the detailed consideration of factual matters and litigation history in the 2023 extension of bankruptcy decision, I am not satisfied that any of the recognised exceptions to the finality of litigation are made out, nor that any new appropriate exception arises. The matters raised by Mr Memelink are simply not new.21 I do not consider that fresh evidence not previously available has come to light such that recall should be permitted. The suggested fresh evidence is connected to Mr Memelink’s allegations of fraud.22 Finally, Mr Memelink’s contention that the Official Assignee has not fulfilled their obligations does not fit within a recognised exception and I can see no justified basis for it to be recognised as an exception in the circumstances.

[28]      Accordingly, I consider that it would be an abuse of the Court’s process to allow Mr Memelink to file an application for recall of the 2018 bankruptcy judgment.

Decision

[7]    First, Mr Memelink suggests the Registrar’s decision is invalid because the Deputy Registrar involved, Nathan Thatcher, is only a “Technical Specialist/Acting Scheduler” not a Registrar. This is presumably a reference to Mr Thatcher’s job description in his email signature. Irrespective of the description in his email signature, Mr Thatcher is a Deputy Registrar with the power to make the decision under review.

[8]    Next, Mr Memelink submits that McQueen J “recommended” the lodging of these proceedings in her decision of 13 May 2024. I see no such recommendation in McQueen J’s decision. That decision dismissed an application to recall the August 2018 bankruptcy judgment due to fraud. Mr Memelink again seeks to challenge the judgment due to fraud, but this time through a separate proceeding.

[9]    I do not accept that a dismissal of an application for recall on the grounds of fraud can be circumvented by filing a separate proceeding alleging the judgment

20 Horowhenua Country v Nash (No 2), above n 17, at 633.

21 See for example Official Assignee v Memelink, above n 16, at [87]–[97] and [143]–[151].

22 Only fraud in the strict legal sense is sufficient in the fraud exception, and a separate proceeding must be brought, seeking to set aside the judgment: Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94 at [29]–[33].

should be set aside on the same grounds. It is plainly an abuse of the court’s process to attempt to circumvent McQueen J’s judgment in this way.

[10]   Mr Memelink’s repeated attempts to challenge the validity of his bankruptcy have been dismissed in various judgments of the senior courts, including twice in the Supreme Court. There can be no doubt that the doctrine of res judicata applies to this further attempt by Mr Memelink to challenge his bankruptcy. It would plainly be an abuse of the Court’s process for it to proceed.

[11]I therefore decline the application for review of the Registrar’s decision.

La Hood J