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Memelink v Haines

Memelink v Haines

Case [2021] NZHC 1992 3 August 2021

Appeal

Breach of Contract

Assignment of Contract

Summary Judgment

Specific Performance

Restitution

Civil Litigation & Procedure

Contract Law

Property Law

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2020-485-497

[2021] NZHC 1992

BETWEEN
HARRY MEMELINK

CISCA FORSTER (as trustee of The Link Trust (No. 1)
Plaintiffs

AND

QUENTIN STOBART HAINES

First Defendant

BPE TRUSTEES (NO 1) LIMITED

Second Defendant

QUENTIN HAINES PROPERTIES LIMITED

Third Defendant

Hearing: 24–25 June 2021. Submissions 2 and 8 July 2021

Appearances:

D G Livingston for the Plaintiffs D K Evans for the Defendants

Judgment:

3 August 2021

JUDGMENT OF GRICE J

(application for summary judgment for liability and for strike out claims in counterclaim)

Contents
Para

Introduction[1]

Background[8]

The loans[18]

Counterclaim pleadings on alleged contract between the parties[31] Assignment of the finance company loans/repayment of the finance companies[36] The law relating to summary judgment[44]

Procedural history[52]

Leave to apply for summary judgment[55]
Application by plaintiffs for leave to adduce further affidavit evidence[67]

The summary judgment application[72]

Opposition to summary judgment[94]

MEMELINK v HAINES [2021] NZHC 1992

Parties to the deeds of assignment[96]
Repayment of finance company loans before assignment[113]
Official Assignee did not consent[120]
No trustee resolutions produced[123]
Section 102 of the Property Law Act 2007[131]
Context of the relationship gave rise to fiduciary obligations[134]
Evidential matters raised[151]
Whether demand has been established[154]
Application for interim payment of $50,000[157]

Strike out application on counterclaim[164]

Law on strike out applications[166]
Further affidavit of Mr Haines[173]

Conclusion[185]

Costs[191]

Introduction

[1] Mr Haines and Mr Memelink, together with their respective family trusts and companies, entered into various professional business relationships from October 2016 until they fell out in August 2018. Their business dealings were complex. Mr Haines, then a lawyer, acted for the Memelink interests in numerous pieces of litigation and in advising Mr Memelink in the period leading up to Mr Memelink’s bankruptcy in August 2018. In the same month Mr Haines handed in his practice certificate to Te Kāhui Ture o Aotearoa | the New Zealand Law Society.1 They entered into commercial deals which were not documented with precision.

[2] As a result of their dealings the Haines and Memelink respective interests became involved in three commercial loans. It is the liability for those loans that is now in issue.

[3] The plaintiffs are Mr Memelink and Ms Cisca Forster, acting as trustees for Link Trust (No. 1) (Link Trust). They are the applicants for summary judgment and strike out, but for simplicity, I will refer to them as the plaintiffs in this judgment. Mr Memelink is a bankrupt and has been since August 2018. At around the same time Mr Haines ceased practice as a lawyer. Mr Haines, his family trust and his company are the first, second and third defendants respectively. For clarity, although they are the respondents to the applications, I will refer to them as the defendants.

[4] Mr Memelink’s family trust, Link Trust, seeks summary judgment on liability only, in relation to debts recorded in the three finance company loan agreements of which it says it took assignment. The three finance…

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 [2021] NZHC 1992
Case: [2021] NZHC 1992
Decision Date: 3 August 2021

CaseChat Overview and Summary

In Memelink v Haines, Mr Memelink and Ms Cisca Forster, as trustees of The Link Trust, sought summary judgment against Mr Quentin Stobart Haines, BPE Trustees (No 1) Limited, and Quentin Haines Properties Limited, in relation to three commercial loans. The plaintiffs claimed that they had taken assignment of the loans from Fico Finance and Bright Enterprise Holdings Ltd, and that the defendants had failed to make repayments. The defendants opposed the application and raised various defences, including that the assignments were invalid and that the plaintiffs had breached fiduciary obligations owed to the defendants. The court found that the plaintiffs had established a claim for breach of contract and that the defendants had no tenable defence. The court granted summary judgment on liability to the plaintiffs and dismissed the defendants' counterclaim. The court also directed the defendants to file an amended counterclaim within 10 days. The court awarded costs to the plaintiffs on a 2B basis for the strike out application and reserved costs for the summary judgment application to be determined following the determination of quantum or as otherwise agreed.

Orders