Memelink v Collins & May Law - [2024] NZHC 2200

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-363 CIV-2018-485-378 CIV-2018-485-660

[2024] NZHC 2200

BETWEEN
HARRY MEMELINK

Applicant

AND

COLLINS & MAY LAW

Respondent

Hearing: On the Papers

Counsel:

Applicant in person

Judgment:

7 August 2024

JUDGMENT OF McQUEEN J

(Application for leave to appeal)

[1] In a judgment dated 13 May 2024, I dismissed an application for review of the Deputy Registrar’s decision that Mr Memelink’s application for recall not be accepted for filing (the review judgment).1

[2] Mr Memelink now applies without notice for either leave to appeal against the review judgment or, in the alternative, a direction that he should seek a fresh trial regarding the claims of fraud that are made. In the circumstances, I consider it appropriate to deal with the application on a without notice basis.

Mr Memelink’s bankruptcy

[3] The background in relation to Mr Memelink’s adjudication as bankrupt in 2018 and the steps he has taken since then is set out in the review judgment and I do not

1 Memelink v Collins & May Law [2024] NZHC 1187.

MEMELINK v COLLINS & MAY LAW [2024] NZHC 2200 [7 August 2024]

repeat it here.2 For the purposes of this application, it is sufficient to say that Mr Memelink has been unsuccessful in both his application to annul the order adjudicating him bankrupt and his attempts to appeal the judgment in which he was adjudicated bankrupt (the 2018 bankruptcy judgment).3 Mr Memelink was unsuccessful in the Court of Appeal and the Supreme Court in persuading those courts that an extension of time for leave to appeal should be granted.4

Mr Memelink’s proposed application for recall

[4] On 21 March 2024, Mr Memelink sought to file an application to recall what he described as three bankruptcy judgments in three separate proceedings (the proposed recall application). The Deputy Registrar declined to accept the proposed recall application for filing and Mr Memelink applied for a review of that decision by a Judge. I determined that application in the review judgment.

[5] No judgments for bankruptcy were given in two of the proceedings and therefore there were no judgments to be recalled. In the review judgment, I confirmed that the Deputy Registrar was correct in concluding that in these circumstances, no application for recall could be made or accepted for filing in respect of those proceedings.

[6] In relation to the third judgment which is the subject of Mr Memelink’s proposed recall application, the 2018 bankruptcy judgment, I determined that the Deputy Registrar was incorrect to decline to accept the proposed recall application simply in reliance on r 11.9 of the High Court Rules 2016 (the Rules) and heard the application afresh under this Court’s inherent jurisdiction. I was satisfied it was not in the interests of justice to accept the proposed recall application for filing and that it would be an abuse of process to do so. I therefore dismissed the application for review of…

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 2200
Decision Date: 7 August 2024

CaseChat Overview and Summary

In this case, Harry Memelink, the applicant, sought leave to appeal the decision of McQueen J, dismissing his application for review of the Deputy Registrar's decision to reject his application for recall of certain bankruptcy judgments. The respondent, Collins & May Law, opposed the application. The legal issues centered around whether the applicant had demonstrated an arguable error of law or fact in the review judgment, and if the circumstances warranted granting leave to appeal under the Senior Courts Act 2016.

McQueen J carefully considered the application, applying the principles established in Greendrake v District Court of New Zealand. The Court noted that while the threshold for leave to appeal in this case might be lower due to the substantive effect of the review judgment, the applicant still needed to demonstrate an arguable error of law or fact. The Court found that Memelink had not identified any such error in the review judgment, as his arguments essentially repeated those previously made and rejected. Additionally, the Court found that the general or public importance of the matter, the potential for delay, and the interests of justice did not support granting leave to appeal.

Ultimately, McQueen J concluded that Memelink had failed to meet the threshold for leave to appeal and dismissed the application. The Court also declined to make the alternative direction sought by Memelink to seek a fresh trial regarding fraud claims.

This case underscores the importance of demonstrating a clear and arguable error of law or fact in applications for leave to appeal, particularly in interlocutory applications where the automatic right to appeal does not exist.

Orders