Memelink v Grindlay - [2016] NZHC 871

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-009708 [2016] NZHC 871

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 First Defendant

ROBYN GRINDLAY Second Defendant

Hearing: 2 May 2016

Counsel:

Plaintiff in person
J D Haig and K I Jefferies for Second Defendant

Judgment:

3 May 2016

JUDGMENT OF COLLINS J

Introduction

[1] On 2 May 2016 I heard Mrs Grindlay’s application to strike out Mr Memelink’s proceeding because of his consistent failure to comply with timetable orders.

[2] This judgment explains why I have decided to adjourn the proceeding, and impose strict terms on the adjournment in the form of an “unless” order.1 Failure to
comply with the new timetable orders will result in the proceeding being struck out.

1 An “unless” order is an order requiring a party to take an interlocutory step by a specified date.

MEMELINK v GRINDLAY [2016] NZHC 871 [3 May 2016]

Background

The dispute

[3] The proceeding relates to a contractual dispute between Mr Memelink and

Mrs Grindlay. Mr Memelink also has a claim in defamation against Mrs Grindlay.

[4] Mr Memelink alleges that in April 2013 he entered into a contract with Mr and Mrs Grindlay for the sale and purchase of his shares in a company called D M Recyclink Ltd (DMR). The purchase price was $200,000 with interest calculated at a rate of 6.5 per cent per annum on any unpaid amount from the time it was due under the contract. The Grindlays paid $15,000 of the deposit on 12 April
2013 but defaulted on further payments.

[5] Mrs Grindlay denies entering into the alleged contract. The Grindlays have also on previous occasion purported to have cancelled the agreement.2

[6] The defamation claim relates to a Facebook post in November 2013 where Mrs Grindlay alleged Mr Memelink rips people off, is a liar and had threatened her. Mrs Grindlay admits making the comments but states that they represent the truth.

Previous court decisions

[7] On 19 February 2014, a default judgment was entered in favour of Mr Memelink. As a consequence he was entitled to recover the sum of $185,000 plus 6.5 per cent per annum interest on any portion not paid after judgment, and costs. On 12 March 2014, a charging order on 79 Karamu Crescent, Wainuiomata, Wellington, was issued against the Grindlays.

[8] The default judgment was subsequently set aside by Clifford J on 22 August

2014. This was because Mr Memelink’s default judgment was not entered strictly in

terms of his pleading.3

If the party fails to take that step, the proceeding will be dismissed or stayed or the defence struck out (as the case may be), without the need for a further application to the court: SM v LFDB [2014] NZCA 326, [2014] 3 NZLR 494.
2 Case management conference 9 December 2014 in front of Associate…

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 871
Case: [2016] NZHC 871
Decision Date: 3 May 2016

CaseChat Overview and Summary

The High Court of New Zealand dealt with an application by Mrs Grindlay to strike out Mr Memelink's proceedings due to his failure to comply with court orders. Mr Memelink, representing himself, was engaged in a contractual dispute with the Grindlays over the sale of shares in a company, and had a defamation claim against Mrs Grindlay for comments made on Facebook. Mrs Grindlay sought to have the case dismissed, arguing Mr Memelink had caused prejudice by failing to comply with the court's directions and had no arguable cause of action.

The court considered the principles for striking out proceedings under the High Court Rules, noting that such an order is a step of last resort. The court determined that striking out would not be appropriate as Mr Memelink's cause of action appeared tenable, the Grindlays had also failed to comply with court orders, and the high threshold for a strike-out order had not been met. The court found that while Mr Memelink's delay was inexcusable, it was not wholly so, and he had acknowledged the prejudice caused by his actions.

Accordingly, the court decided to adjourn the proceedings and impose strict terms on the adjournment in the form of an "unless" order. Failure to comply with the new timetable orders would result in the proceedings being struck out. The court also refused Mrs Grindlay's claim for security for costs, finding insufficient evidence to support that Mr Memelink would be unable to pay the costs if he were unsuccessful. The court set a new hearing date and allocated three days for the hearing.

Orders