Memelink v Haines - [2023] NZHC 2489

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-459

[2023] NZHC 2489

UNDER Part 15 High Court Rules 2016

IN THE MATTER

of a Strike Out of a Statement of Claim

BETWEEN

HARRY MEMELINK AND CISCA

FORSTER as trustees of the LINK TRUST NO. 1
Plaintiffs

AND

QUENTIN STOBART HAINES

First Defendant

BPE TRUSTEES (NO. 1) LIMITED

Second Defendant

EASTLIGHT ASSET TRADING NO. 5 LIMITED
Third Defendant

STOBART HOLDINGS LIMITED

Fourth Defendant

Hearing: On the papers

Counsel:

J D Haig for Respondents/Plaintiff (in receivership) J D Dallas for Applicants/Defendants

Mr Memelink in person

Judgment:

6 September 2023

JUDGMENT OF GRICE J

(Costs)

MEMELINK v HAINES [2023] NZHC 2489 [6 September 2023]

Introduction

[1] I dismissed the defendants’ application for strike out of the substantive proceedings in this matter on 31 July 2023. This was because there was an order in place for a stay of proceedings (the stay) for the period of the receivership of Link Trust No.1 (the Trust) and no application had been made to lift the stay. I found that it was not an appropriate case for the Court to exercise its discretion to lift the stay of its own motion under the Court’s inherent jurisdiction, taking into account the receivers’ lack of consent to lift the stay.1

[2] I concluded that it was not in the interests of justice to allow the application for strike out to proceed.2 It would not be fair to the other creditors and would divert the receivers from the primary task of realising the assets of the trust and also incur further costs in the receivership.3 I made no determination on the merits of the application for strike out, but held that the application for strike out could not proceed due to the stay of the proceeding.4

[3] I directed the parties to file memoranda on costs if they were unable to reach agreement.5 The receivers (on behalf of the Trust), the defendants and Mr Memelink personally have filed such cost memoranda.

Costs in this proceeding

[4] The receivers and defendants have filed a joint memorandum indicating agreement to an award of costs on a 2B basis in favour of the receivers in the sum of
$11,233 plus disbursements of $160. The costs and disbursements are listed in a schedule attached to the joint memorandum.

[5] I am satisfied 2B is the appropriate categorisation for costs and the amounts claimed as disbursements appear reasonable and appropriate.

1      Memelink v Haines [2023] NZHC 1711 at [41].
2      At [36] and [41].
3 At [36].
4      At [37] and [42].
5 At [43].

[6] Accordingly, I make an order as to costs and disbursements as set out in the parties’ joint memorandum and schedule.

Application by Mr Memelink for disbursements

[7] Mr Memelink is self-represented. Except in exceptional cases a lay litigant is not entitled to recover costs. However, a lay litigant is entitled to reasonable disbursements at the discretion of the Court.6

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.

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Details

Case: [2023] NZHC 2489
Decision Date: 6 September 2023

CaseChat Overview and Summary

The plaintiffs, Harry Memelink and Cisca Forster as trustees of the Link Trust No. 1, sought to have an application for strike out dismissed by the High Court of New Zealand. The defendants, Quentin Stobart Haines, BPE Trustees (No. 1) Limited, Eastlight Asset Trading No. 5 Limited, and Stobart Holdings Limited, argued for the strike out of the proceedings. The case revolved around the dismissal of the defendants' application for strike out and the subsequent costs associated with the proceedings.

The primary legal issue before the court was whether the application for strike out could proceed despite the existence of a stay of proceedings for the period of the receivership of the Link Trust No. 1. The court had to determine if the stay justified preventing the application from proceeding and if it was appropriate to exercise the Court's inherent jurisdiction to lift the stay. Additionally, the court considered whether Mr Memelink, a beneficiary of the Trust, was entitled to reimbursement of a portion of his legal fees as a disbursement.

The court found that the application for strike out could not proceed due to the stay of the proceedings. The stay was in place for the period of the receivership of the Trust, and no application had been made to lift the stay. The court noted that lifting the stay on its own motion under the Court's inherent jurisdiction was not appropriate, given the receivers' lack of consent. Allowing the application to proceed would not be fair to the other creditors and would divert the receivers from their primary task of realising the assets of the Trust. The court also declined to award Mr Memelink a contribution towards his legal fees, as his role and interests in the proceedings were not clearly defined, and his submissions did not add significantly to those of the receivers. The court emphasised that the Trust was the successful party, and its interests were represented by the receivers.

In summary, the court dismissed the defendants' application for strike out due to the stay of proceedings and denied Mr Memelink's application for a contribution towards his legal fees. The court ordered the defendants to pay costs of $11,233 plus disbursements of $160 to the receivers.

Orders