Memelink v Grindlay - [2016] NZHC 2589

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-009708 [2016] NZHC 2589

UNDER
the Law of Contract, the Contractual

Remedies Act 1979 and the Defamation
Act 1992

IN THE MATTER

of a breach of contract and defamatory statements

BETWEEN

HARRY MEMELINK Plaintiff

AND

MALCOLM GRINDLAY (BANKRUPT) First Defendant

ROBYN GRINDLAY Second Defendant

Hearing: 26-28 September 2016

Counsel:

Plaintiff in person with K Terpstra as McKenzie Friend
K I Jefferies for Second Defendant

Judgment:

31 October 2016

JUDGMENT OF COLLINS J

Introduction

[1] The issues raised in this proceeding can be distilled to the following four questions:

(1)Was Mrs Grindlay a party to a contract between Mr Memelink and Mr Grindlay dated 12 April 2013 (the contract) concerning the sale and purchase of Mr Memelink's shares in a company called
“DM Recyclink Ltd” (DMR)?

MEMELINK v GRINDLAY (BANKRUPT) [2016] NZHC 2589 [31 October 2016]

(2) If so, did Mr and Mrs Grindlay cancel the contract pursuant to ss 7 or

8 of the Contractual Remedies Act 1979 (the Act) on 10 November

2013?

(3) If Mr and Mrs Grindlay did not lawfully cancel the contract, what if any damages should be awarded to Mr Memelink pursuant to s 9 of the Act?

(4)Did Mrs Grindlay defame Mr Memelink by posting on a facebook page that he “rips people off”, is “a liar and that people should not enter into business with him”?

[2] The answers to these questions are:

(1) Mrs Grindlay was a party to the contract.

(2) Mr and Mrs Grindlay repudiated but did not cancel the contract.

(3) Mr Memelink is entitled to $176,786.67 by way of damages and interest at the rate of 6.5 per cent from 12 April 2014 on this sum.

(4)Mrs Grindlay defamed Mr Memelink. He is entitled to a nominal award of damages for defamation. That award is $100.00.

[3] This judgment is divided into four parts. Part I sets out the background. Part II explains why I have concluded Mrs Grindlay was a party to the contract. Part III explains why I am satisfied the contract was not cancelled by Mr and Mrs Grindlay on 10 November 2013 and the damages which Mrs Grindlay is liable to pay to Mr Memelink. Part IV explains why Mr Memelink was defamed.

PART I: BACKGROUND

[4] Mr Memelink established DMR in 2010 as a scrap metal and recycling business. It traded from premises at 5 Seaview Road in Lower Hutt. Those premises

are owned by Link Trust No. 1 (Link Trust). Mr Memelink and a Mr Hamilton are the trustees of the Link Trust.

[5] On 7 June 2012, Mr Memelink suffered a serious accident while working at DMR. This resulted in the amputation of his right leg. Mr Memelink thereafter decided to sell DMR. He placed an advertisement on Trade Me to sell the business.

[6] There is no dispute that Mr Grindlay met with Mr Memelink in early 2013 and that they negotiated terms concerning the sale and purchase of Mr Memelink’s…

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 [2016] NZHC 2589
Case: [2016] NZHC 2589
Decision Date: 31 October 2016

CaseChat Overview and Summary

The proceeding was commenced by Harry Memelink against Malcolm Grindlay (in bankruptcy) and Robyn Grindlay (the defendants) for breach of contract and defamation. The defendants did not file a statement of defence and the plaintiff obtained a default judgment against them. The defendants then applied to set aside the default judgment. In a judgment delivered on 22 August 2014, Clifford J set aside the default judgment on the basis that judgment had not been entered "strictly in terms of the statement of claim" as required by the High Court Rules. The plaintiff appealed from the decision of Clifford J. The court was required to determine whether Robyn Grindlay was a party to the contract; whether the contract had been cancelled; whether damages were payable to the plaintiff; and whether the plaintiff had been defamed by the defendants. The court found that Robyn Grindlay was a party to the contract. The court found that the contract was repudiated but not cancelled. The court found that the plaintiff was entitled to damages in the sum of $176,786.67 and interest at the rate of 6.5 per cent per annum from 12 April 2014. The court found that the plaintiff had been defamed by the defendants and awarded the plaintiff a nominal sum of $100.00 by way of damages. The court ordered that the plaintiff was entitled to reasonable disbursements.

Orders