Memelink v Haines - [2023] NZHC 1711

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 1711

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: 3 July 2023

Appearances:

J D Haig for the Respondent/Plaintiff (in receivership) j d Dallas for the Applicants/Defendants

Mr Memelink in person for the trustees

Judgment:

31 July 2023

JUDGMENT OF GRICE J

This judgment was delivered by me on 31 July 2023 at 4.45 pm pursuant to R 11.5 of the High Court Rules

…………………..
Registrar/Deputy Registrar

MEMELINK v HAINES [2023] NZHC 1711 [31 July 2023]

Introduction

[1] The defendants in this matter have applied to strike out the proceedings on a number of bases, including that the claims contain no cause of action or causal link between the plaintiff and the first, second and fourth defendants, there is no case to answer in respect of any of the defendants and the plaintiff has failed to prosecute this claim for over a year.

[2] The Link No 1 Trust (the Trust) is currently in receivership, with receivers having been appointed to the Trust on 31 May 2022 by Churchman J.1 The orders appointing the receivers were varied in December 2022 to include a stay of proceedings by or against the Trust for the period of the receivership unless the receivers agree or the Court otherwise orders.2

[3] In the course of the hearing, a question arose as to the Court’s jurisdiction to strike out the proceedings, given the stay that is in effect. I allowed the parties to file further submissions on this matter following the hearing, which they did.

[4] While for the reasons submitted by Mr Haines and the receivers for the Trust the Court may have inherent jurisdiction to strike out the proceedings despite the receivership stay, I conclude that this is not an appropriate case in which to exercise that discretion.

Background

[5] These proceedings came before the High Court on 15 March 2022, when the Trust was seeking an order that a caveat not lapse. The caveat in question was over a property at Eastern Rise in Manakau. Relief was also sought by way of an interim order that the caveat not lapse if the substantive application could not be determined by a certain date. The application was dismissed by Churchman J on 23 March 2022.3

1 Body Corporate 81012 v Memelink [2022] NZHC 1244.
2 Body Corporate 81012 v Memelink [2022] NZHC 3307 [stay of proceedings decision]; and see Forster v Haines HC Te Whanganui-a-Tara | Wellington CIV-2021-485-459, 21 Māehe | March 2023 (minute of Grice J re general case management conference held 6 March 2023) [general case management…

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.

Keep reading for free

Create a free CaseChat account to read Memelink v Haines and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NZHC 1711
Decision Date: 31 July 2023

CaseChat Overview and Summary

The case of Memelink v Haines involves the defendants seeking to strike out proceedings brought by the plaintiffs, Harry Memelink and Cisca Forster, trustees of the Link Trust No. 1. The defendants include Quentin Stobart Haines, BPE Trustees (No. 1) Limited, Eastlight Asset Trading No. 5 Limited, and Stobart Holdings Limited. The plaintiffs filed claims against the defendants, alleging a series of financial transactions involving loans, mortgages, and property sales. The key legal issues the court had to decide were whether the claims disclosed a reasonably arguable cause of action, whether the proceedings were an abuse of process, and whether the claims were frivolous or vexatious. The defendants argued that the claims were a duplication of those in another proceeding (CIV 2020-485-497), were frivolous, and had not been prosecuted for over a year. The court considered the principles of striking out proceedings and the effect of the stay of proceedings on the Trust. Grice J concluded that the application for strike out could not proceed due to the stay of the proceedings, and it would not be appropriate to exercise the court’s inherent jurisdiction to strike out the proceedings at that stage. The application for strike out and costs was dismissed.

Orders