Memelink v Collins & May Law
[2024] NZHC 2200
•7 August 2024
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 the Deputy Registrar’s decision that Mr Memelink’s proposed recall application not be accepted for filing.
2 At [6]–[12].
3 Re Memelink HC Wellington CIV-2018-485-363, 28 August 2018 (Associate Judge Johnston).
4 Memelink v Collins & May Law [2020] NZCA 62; Memelink v Collins & May Law [2024] NZSC 16.
Application for leave to appeal
[7] Mr Memelink now seeks leave to appeal the review judgment. Mr Memelink acknowledges in his memorandum that there are no judgments to be recalled in two of the proceedings. The effect of this acknowledgement is that the application for leave to appeal is made only in relation to the review judgment as far as it deals with the 2018 bankruptcy judgment.
[8] Mr Memelink has filed a memorandum in support of his application. The memorandum includes multiple exhibits.
Legal principles—leave to appeal
[9] The Senior Courts Act 2016 (the Act) applies to applications for leave to appeal in respect of interlocutory applications. Section 56 provides, relevantly:
…
(3)No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.
(4)Any party to any proceedings may appeal without leave to the Court of Appeal against any order or decision of the High Court—
(a) striking out or dismissing the whole or part of a proceeding, claim, or defence; or
(b) granting summary judgment.
(5)If the High Court refuses leave to appeal under subsection (3), the Court of Appeal may grant that leave on application made to the Court of Appeal within 20 working days after the date of the refusal of leave by the High Court.
(6)If leave to appeal under subsection (3) or (5) is refused in respect of an order or a decision of the High Court made on an interlocutory application, nothing in this section prevents any point raised in the application for leave to appeal from being raised in an appeal against the substantive High Court decision.
[10]An interlocutory application is defined in s 4 of the Act as:
interlocutory application—
(a)means any application to the High Court in any civil proceedings or criminal proceedings, or intended civil proceedings or intended criminal proceedings, for—
(i)an order or a direction relating to a matter of procedure; or
(ii)in the case of civil proceedings, for some relief ancillary to that claimed in a pleading; and
(b)includes an application to review an order made, or a direction given, on any application to which paragraph (a) applies.
[11] The Court of Appeal set out the principles in relation to leave to appeal under s 56(3) of the Act in Greendrake v District Court of New Zealand:5
… the requirement for leave to appeal should serve as a filtering mechanism to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made.6 The following considerations were recognised as relevant on an application for leave to appeal:
(a)a high threshold exists;
(b)the applicant must identify an arguable error of law or fact;
(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;
(d)the circumstances must warrant incurring further delay; and
(e)the ultimate question is whether the interests of justice are served by granting leave.
[12] Mr Memelink’s original application was for a review of the Deputy Registrar’s decision. That application is properly characterised as an interlocutory application, which means there is no automatic right of appeal. As Mr Memelink filed the application for leave to appeal within the 20 working days timeframe, s 56(3) applies. Accordingly, I now consider whether leave to appeal should be granted.
5 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].
6 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].
Should leave to appeal be granted?
[13] I consider the application of each of the factors as set out in Greendrake v District Court of New Zealand.
Threshold
[14] Where an interlocutory application otherwise has a substantive effect, but is not covered by s 56(4), the threshold for leave may be viewed as less than standard interlocutory orders such as in relation to discovery or privilege.7 In the present case, Mr Memelink’s application was an interlocutory application in form, but the effect of the review judgment is to prevent Mr Memelink from being able to bring his proposed recall application before the Court. Therefore, I consider the nature of the application and the potential effect of a resulting judgment support a lower threshold for leave in this case.
[15] However, as described by the Court of Appeal, requiring leave to appeal is said to be a “filtering mechanism” to prevent “unmeritorious appeals” or appeals of “ no great significance to the parties” or to “not unnecessarily delay” the proceedings. It is important to note that if I was to grant leave to appeal, the decision that is to be appealed is my judgment dismissing the application for review of the Deputy Registrar’s decision, not the 2018 bankruptcy judgment. It is against this context that I turn to the remaining factors.
Has an identifiable error of law or fact been established?
[16] Mr Memelink is required to identify an arguable error of law or fact in the review judgment.
[17] In reaching my decision in the review judgment, my task was to determine whether the Deputy Registrar was correct to decline to accept for filing Mr Memelink’s application for recall of the 2018 bankruptcy judgment. As mentioned earlier, once I determined that the Deputy Registrar was incorrect to decline the
Simons v ANZ Bank New Zealand Ltd [2022] NZHC 2842 at [7] cited in Jessica Gorman and others
McGechan on Procedure (looseleaf ed, Thomson Reuters, Wellington) at [SC56.07].
proposed application for recall of the 2018 bankruptcy judgment in reliance on r 11.9 of the Rules, I considered afresh whether the application should be accepted for filing under this Court’s inherent jurisdiction.
[18] I determined that where Mr Memelink has eventually taken all possible steps to pursue an appeal of the 2018 bankruptcy judgment (having made the earlier decision not to appeal within time) and been unsuccessful in all related applications including to the Supreme Court, that this was a sufficient basis in itself to decline to accept the proposed application for recall, highlighting as it does the importance of finality in litigation.
[19] Nonetheless, I went on to consider Mr Memelink’s contention that fraudulent evidence underpinned the 2018 bankruptcy judgment. I was not satisfied that any of the recognised exceptions to the principle of finality of litigation were made out, nor that any new appropriate exception arises, to allow the application for recall to be accepted for filing. I said that the suggested fresh evidence in that application was connected to Mr Memelink’s allegations of fraud, and that only fraud in the strict legal sense is sufficient for the fraud exception and a separate proceeding must be brought seeking to set aside the judgment. I said that the matters raised by Mr Memelink were not new and I did not consider that fresh evidence not previously available had come to light such that recall should be permitted. I concluded that it would therefore be an abuse of the Court’s process to allow Mr Memelink to file his proposed recall application.
[20] Mr Memelink’s memorandum records that he disagrees with several parts of the review judgment. Mr Memelink says that the reasons his appeals against his adjudication as bankrupt were unsuccessful is because “information regarding the alleged fraudulent and deceitful nature of the initial cases was unavailable at the time”. He maintains, as he did in his application for review of the Deputy Registrar’s decision, that the Supreme Court was wrong when they indicated he was bankrupt as:8
… on his own evidence the applicant’s liabilities (including those to the respondent) exceeded his assets (which were just $6,000) by over
$4.35 million (including secured creditors exceeding $2.6 million). It is not
8 Memelink v Collins & May Law [2024] NZSC 16 at [7].
therefore 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 now, to stand.
[21] Mr Memelink also contends that his case falls within one of the categories of exception to the finality of litigation principles that I described in the review judgment.9 Mr Memelink relies on the following exceptions:
(a)a judgment may be set aside, usually by separate action, where it was obtained by fraud; and
(b)a case may be reopened where fresh evidence not previously available has come to light which is material to the outcome of the case.
[22] I do not accept that these submissions point to any arguable error of fact or law in the review judgment. Mr Memelink is simply repeating arguments he made in his application for review. While Mr Memelink disagrees with my conclusions, he has not identified any error in them.
[23] Nor do I accept that Mr Memelink may, on an application for leave to appeal, seek to rely on further new matters he says have arisen since he sought to file the proposed recall application—evidence he says “… will demonstrate that both significant procedural and substantive errors, in addition to the alleged fraud, have resulted in a miscarriage of justice.” In any event, Mr Memelink simply appends multiple documents to his memorandum. It is not evidence properly before the Court. As such, I do not consider that I should have regard to this material. Further, even if it was appropriate to consider this material, much of it, the relevance of which is often unclear, appears to repeat points that Mr Memelink has raised before. As a result, even taking the material into account, as best I can, I am not satisfied that there is fresh evidence not previously available that has come to light, and which is material to the outcome of the case, such that this constitutes an error of fact or law in the review judgment.
9 Memelink v Collins & May Law, above n 1, at [20] citing Herron v Wallace [2016] NZHC 2426, (2016) 23 PRNZ 620 at [33].
[24] The appropriate place for making fraud allegations is not by seeking leave to appeal my decision to dismiss Mr Memelink’s application for review of the Deputy Registrar’s decision not to accept for filing his application for recall of the 2018 bankruptcy judgment. As I indicated in my review judgment, if Mr Memelink wishes to pursue a claim based on fraud, then a separate proceeding must be brought seeking to set aside the 2018 bankruptcy judgment.10 Mr Memelink says in his memorandum that he has prepared a statement of claim alleging deceit and fraud, but the Official Assignee has rejected his request for the claim to proceed. That is not a matter for me to comment on. It is neither necessary nor appropriate for me to make a direction that Mr Memelink should “seek a fresh trial regarding the claims of fraud that are made”, as Mr Memelink seeks in the alternative to leave to appeal being granted.
[25] While I have concluded that Mr Memelink has failed to point to any arguable error of fact or law in the review judgment, for completeness, I also consider the remaining factors identified in Greendrake v District Court of New Zealand.
General or public importance
[26] Mr Memelink’s review of the Deputy Registrar’s decision does not have general or public importance, and I note that Mr Memelink has not made any submissions to this effect. Although I accept the matter is of importance to Mr Memelink, this alone does not support the grant of leave to appeal.
Delay
[27] As the review judgment prevented the proposed recall application from being filed, there is no delay that would be caused by granting the appeal as would be the case in many other situations. This is highlighted by the fact that at the heart of Mr Memelink’s concerns is the 2018 bankruptcy judgment—now eight years old. Therefore, this is a neutral point in considering whether to grant the application for leave.
10 Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94 at [29]–[33].
Interests of justice
[28] Overall, having regard to the above considerations, I am satisfied that the interests of justice do not support the grant of leave to appeal.
Conclusion
[29] Even though a lower threshold is applicable in this case, I do not consider that Mr Memelink has raised an arguable error of fact or law in my review judgment to meet that threshold. There are no other considerations that warrant granting Mr Memelink’s application for leave to appeal.
Result
[30] I dismiss the application for leave to appeal and decline to make the direction Mr Memelink seeks in the alternative.
McQueen J
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