Memelink v Collins & May Law - [2016] NZHC 442

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-1952 [2016] NZHC 442

BETWEEN
HARRY MEMELINK AND PATRICK

JOHN RENSHAW AS TRUSTEES OF THE LINK TRUST (NO.1)

First Plaintiff

HARRY MEMELINK Second Plaintiff

AND

COLLINS & MAY LAW Defendant

Hearing: 8-10 September 2015

Counsel:

H Memelink, in Person, for the Plaintiffs
H M Twomey and M O Fee for Defendant

Judgment:

15 March 2016

JUDGMENT OF CLIFFORD J

Introduction

[1] In August 2006 the first plaintiff, the Link Trust (No 1) (the Trust), contracted to purchase 4 Suzetta Place, Pakuranga (the Property). The Property was then owned by Cecile Matthews and her husband, John Hoyte, as to a one-half share each. The agreed purchase price for the Property was $570,000. The second plaintiff, Harry Memelink, signed the agreement for sale and purchase on behalf of the Trust. Mr Memelink then instructed the defendants, the firm of Collins & May Law, to act
for the Trust to settle the purchase.1

[2] Collins & May settled the purchase on behalf of the Trust on 21 September

2006 by the payment of $232,569.34, the amount called for by the vendors’

1 The Trust is Mr Memelink’s family trust.

MEMELINK v COLLINS & MAY LAW [2016] NZHC 442 [15 March 2016]

settlement statement. Collins & May duly completed the purchase by arranging for title to the Property to be registered in the name of the Trust.

[3] In 2010 and 2011 Ms Matthews sued the Trust for what she said was the unpaid balance of the $570,000 purchase price. In May 2012 Andrews J found that the Trust was liable to pay Ms Matthews “her” one-half share of that balance.2

[4] The Trust and Mr Memelink now sue Collins & May. They say that Andrews J decided against them because of the negligent way Collins & May acted for the Trust on settlement, by not properly documenting that the payment of
$232,569.34 on settlement fully discharged the Trust’s obligation to pay the

$570,000 sale price. They claim damages of $155,715.33, the amount Andrews J

ordered the Trust pay Ms Matthews.

[5] Collins & May deny liability on the basis of the instructions they say Mr Memelink, on behalf of the Trust, gave them. Collins & May emphasise the limited scope of those instructions: their job was simply to settle the transfer on the basis of the settlement statement. They had no responsibility to do any more than that. In particular, they did not have a duty to the Trust or Mr Memelink to review or document the underlying arrangements pursuant to which the Trust only paid
$232,567.34 on settlement, when the sale and purchase agreement called for the payment of $570,000. They say the settlement statement adequately recorded the parties’ agreement to that effect.

Facts

[6] There has been a lengthy dispute between Mr Memelink and Mr Hoyte, and Mr Memelink and Ms Matthews. The Trust purchased the Property as part of an earlier attempt to resolve that dispute. The trial before Andrews J,…

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.

Keep reading for free

Create a free CaseChat account to read Memelink v Collins & May Law and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NZHC 442
Decision Date: 15 March 2016

CaseChat Overview and Summary

The plaintiffs, Harry Memelink and the Link Trust (No.1), sued the defendants, Collins & May Law, for damages for negligence and breach of contract. The plaintiffs claimed that Collins & May negligently settled the purchase of a property at 4 Suzetta Place, Pakuranga, on behalf of the Link Trust. The plaintiffs claimed that the negligent settlement resulted in the Trust owing the vendor, Cecile Matthews, $155,715.33. Collins & May denied liability on the basis that their retainer with the plaintiffs was limited to settling the purchase in accordance with the instructions they were given. The defendants claimed that the settlement statement, which recorded the amount to be paid on settlement, was sufficient to document the variation to the agreement for sale and purchase.

The court found that Collins & May were negligent in their failure to ensure that the settlement statement correctly recorded the variation to the agreement for sale and purchase. The court held that the defendants’ failure to do so was both a breach of their retainer with the plaintiffs and a breach of their tortious duty of care. The court found that the defendants’ negligence was causative of the loss the plaintiffs suffered. The court held that the plaintiffs were not contributorily negligent in the matter.

The court awarded the plaintiffs damages in the sum of $155,715.33, together with their disbursements.

Orders