Memelink v Haines - [2020] NZCA 205

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA503/2019
[2020] NZCA 205

BETWEEN	HARRY MEMELINK AND LYNX TRUSTEES LIMITED AS TRUSTEES OF THE LINK TRUST NO 1 Appellants
AND	QUENTIN STOBART HAINES First Respondent BPE TRUSTEES (NO 1) LIMITED Second Respondent QUENTIN HAINES PROPERTIES LIMITED Third Respondent

Court:	French and Collins JJ
Counsel:	D G O Livingston for Appellants J P Dallas for Respondents
Judgment: (On the papers)	2 June 2020 at 11 am

JUDGMENT OF THE COURT

AHarry Memelink and Lynx Trustees Ltd are removed as appellants and substituted with Roy Bassett-Burr.
BQuentin Stobart Haines is removed as first respondent.
CWithin five working days Roy Bassett-Burr must either pay the filing fee or make an application for waiver.
DWithin five working days Roy Bassett-Burr must either pay security for costs in the sum of $7,060 or make an application for dispensation of payment.
EThe application to strike out the appeal is declined.
FThe costs of the application to strike out are reserved.

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REASONS OF THE COURT

(Given by French J)

Introduction

On 27 September 2019 Mr Memelink filed a notice of appeal against a decision of Churchman J in the High Court. The decision had been issued on 30 August 2019.[1]
[1]Body Corporate 68792 v Memelink [2019] NZHC 2169.
In the decision, the Judge set aside five statutory demands served on Mr Haines and associated entities by Mr Memelink and Lynx Trustees Ltd as trustees of the Link Trust No 1. Mr Memelink and Lynx Trustees Ltd were both named as the respondent party in the High Court. The Judge also made an award of costs against the sole director and shareholder of Lynx Trustees Ltd, a Mr Bassett-Burr in his personal capacity on the grounds that the demands had been issued improperly and that Mr Bassett-Burr had failed to withdraw them when this was brought to his attention.
In the notice of appeal, Mr Memelink stated he was filing the appeal in his capacity as a trustee of the Link Trust No 1. It was not entirely clear from the notice whether he was the sole appellant or whether he was also purporting to file the notice of appeal on behalf of Lynx Trustees Ltd as well as himself. It appears from subsequent communications that the latter was what was intended.
Mr Memelink’s authority to file the appeal on behalf of Lynx Trustees Ltd was then challenged by the respondents. The company had ceased being a trustee of the Link Trust No 1 on 26 August 2019 and had been placed into liquidation on 10 September 2019, some 17 days before the appeal was filed. The liquidators advised this Court that they were not notified of the proposed appeal and did not consent to it.
That development prompted Clifford J to suggest the respondents file an application for an order striking out the appeal. The strike out application was duly filed on 29 November 2019.
It is that application…

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 Haines

Details

AGLC: Memelink v Haines [2020] NZCA 205
Case: [2020] NZCA 205
Decision Date: 2 June 2020 at 11 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appeal filed by Harry Memelink and Lynx Trustees Limited against Quentin Stobart Haines and others, was subject to an application to strike out. The appeal arose from a decision by the High Court, where five statutory demands were set aside, and costs were awarded against Mr Bassett-Burr, the sole director and shareholder of Lynx Trustees Ltd. The appellants' authority to file the appeal on behalf of Lynx Trustees Ltd was challenged, given that the company had ceased being a trustee of the Link Trust No 1 and had been placed into liquidation before the appeal was filed. The key grounds for the strike-out application included the fact that Mr Memelink consented to the orders being made in the High Court and had not disclosed any error of fact or law which could found an appeal, and that Mr Memelink was not entitled to bring proceedings in the name of Lynx Trustees Ltd.

After reviewing the papers, the Court became concerned that the arguments regarding the naming of the appellants appeared to be misconceived. The Court issued a minute advising the provisional view that the correct appellant was Mr Bassett-Burr, as the appeal was solely about the order awarding costs against him. The Court also concluded that the correct respondents should be BPE Trustees (No 1) Limited and Quentin Haines Properties Ltd, as they were the beneficiaries of the costs award. The appeal that was filed in time remains extant, and the change of appellant means that payment of filing fees and security for costs must be considered afresh.

The Court declined the application for an order striking out the appeal, as the merits of the appeal, on the limited information available, did not fall into the frivolous and vexatious category. The Court ordered that Harry Memelink and Lynx Trustees Ltd be removed as appellants and substituted with Roy Bassett-Burr, Quentin Stobart Haines be removed as the first respondent, and that Roy Bassett-Burr must either pay the filing fee or make an application for waiver, and pay security for costs or make an application for dispensation of payment, within five working days. The Court reserved the costs of the application to strike out.

Orders