Memelink v Grindlay - [2017] NZHC 1549

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2017-485-000125 [2017] NZHC 1549

UNDER the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of ROBYN GRINDLAY

BETWEEN

HARRY MEMELINK Judgment Creditor

AND

ROBYN GRINDLAY Judgment Debtor

Hearing: 3 July 2017

Appearances:

J D Haig for Judgment Debtor (applicant for halting order) Q S Haines for Judgment Creditor (respondent on this application)

Judgment:

6 July 2017

JUDGMENT OF ASSOCIATE JUDGE OSBORNE [on application to halt adjudication application]

Introduction

[1] Robyn Grindlay owes Harry Memelink a debt of $176,786.67 (together with interest) (the debt) pursuant to a judgment of this Court dated 31 October 2016.1

[2] Mrs Grindlay promptly filed an appeal against the judgment. A bankruptcy notice was then issued by Mr Memelink in reliance on the debt. Mrs Grindlay failed to comply with it.

[3] Mr Memelink then applied for an order adjudicating Mrs Grindlay bankrupt.

1 Memelink v Grindlay [2016] NZHC 2589.

MEMELINK v GRINDLAY [2017] NZHC 1549 [6 July 2017]

[4] Mrs Grindlay in response applies for an order halting Mr Memelink’s

application. That is the matter now for determination.

[5] On the eve of this hearing, the Court of Appeal was apparently able to

allocate a hearing date of Mrs Grindlay’s appeal – it is to be heard on 24 July 2017.

[6] The Court of Appeal’s ability to hear the appeal within the next three weeks is the most significant of the factors which I must address in this judgment. Its significance is so fundamental to the exercise of my discretion and the just and equitable outcome of Mrs Grindlay’s application that I need only briefly identify other factors which are often taken into account, and accorded significant weight, but which do not assume great significance in the present circumstances.

Mr Memelink’s opposition – a procedural issue

[7] Shortly after Mrs Grindlay filed her halt application, Mr Memelink filed a detailed affidavit in opposition. The Court has no record of his filing a notice of opposition.

[8] The absence of a notice of opposition was not addressed by counsel in the synopses of submissions filed. I raised the omission with counsel at the hearing. Mr Haines was not able to identify in his possession a notice of opposition.

[9] I proceeded to hear the merits of the application and the opposition (which had been fully developed in the synopses of submissions) without prejudice to Mr Haig’s entitlement, if necessary, to supplement in writing his submissions in order to deal with the omission. In the event, by reason of the finding which I make on the merits, the lack of a notice of opposition does not call for further direction.

[10] I record that, had it been necessary for the Court to determine the issue, it is likely that I would have made an order under r 1.9 High Court Rules curing Mr Memelink’s defect in procedure.

The application for an order halting the adjudication application

The jurisdiction

[11] In her application, Mrs Grindlay invoked…

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.

Continue reading Memelink v Grindlay

Details

AGLC: Memelink v Grindlay [2017] NZHC 1549
Case: [2017] NZHC 1549
Decision Date: 6 July 2017

CaseChat Overview and Summary

Robyn Grindlay is bankrupt and owes Harry Memelink a sum of money pursuant to a judgment of the High Court dated 31 October 2016. Mr Memelink has applied for an order of adjudication of bankruptcy against Mrs Grindlay. Mrs Grindlay has applied to halt Mr Memelink’s application. The primary issue before the court was whether the court should exercise its discretion to halt the adjudication application. The court found that the appeal would be at risk if an order of adjudication was made, and that the appeal was being pursued diligently. The appeal was set down for hearing in less than three weeks, and the appeal did not appear to raise any matters of significant novelty or importance. The court found that the most just and equitable outcome was to halt the adjudication application for the time being, but on conditions which ensured the continued diligent prosecution of the appeal. The court halted the creditor's application for adjudication until further order of the court, on condition that the debtor diligently pursue her appeal and ensure that her usual debts and expenses were duly met from income, pending the outcome of her appeal. The creditor was granted leave to apply on three days’ notice for cancellation of the halt if either or both of the conditions were not met. The costs and disbursements of the halt application were reserved.

Orders