Memelink v Mead - [2016] NZHC 3008

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-854 [2016] NZHC 3008

IN THE MATTER
of an appeal against the decision of Judge

A I M Tompkins

BETWEEN

HARRY MEMELINK Appellant

AND

BRUCE ALAN MEAD Respondent

Hearing:
1 September 2016

(Further evidence received 20 September 2016)

Counsel:

Appellant in Person
J C Gwilliam for Respondent

Judgment:

12 December 2016

JUDGMENT OF CLIFFORD J

Introduction

[1] In the District Court, Judge Tompkins found that a sum of money transferred by Mr Mead (the respondent) to a bank account of a company owned by Mr Memelink (the appellant) was a loan to Mr Memelink personally.1 It was not, as Mr Memelink had contended, a payment by Mr Mead to that company for trading stock supplied to Mr Mead.

[2] Mr Memelink now appeals that decision. He says evidence the Judge found crucial in reaching that conclusion was fabricated. Without that evidence, Mr Mead
cannot show the disputed sum was a loan.

1 Mead v Memelink [2015] NZDC 18992.

Context

[3] At the relevant times, Mr Memelink operated a woodworking and an associated tool supply business in New Zealand and Australia through the New Zealand company Link Technology 2000 Limited (sometimes referred to as Link Technology International), and the Australian company Australia Gas & Electric Company Pty Limited. Mr Memelink would also appear to have traded under various versions of those names.

[4] Between 1993 and 1997 Mr Mead worked for Link Technology in New Zealand. In December 1997 Mr Mead moved to Australia. He established his own business, Cool Tools Gold Coast. It is unclear whether Cool Tools was an incorporated entity or not. Through Link Technology and/or Australia Gas and Electric Mr Memelink supplied Mr Mead with Screwgrab product and Proxxon tools. Screwgrab is a product which helps move screws and other fasteners where the “head” has been distorted. Proxxon are specialist woodworking tools.

[5] In early 2009 Mr Mead made arrangements to return to New Zealand. At one point, he had intended bringing unpaid Proxxon stock back to New Zealand. As best as I can tell, however, he sold his business. On 20 April 2009 Mr Mead transferred A$40,0002 from his bank in Australia to an Australian dollar account Link Technology maintained in New Zealand.

[6] After his return to New Zealand, and when the relationship between Mr Memelink and Mr Mead had broken down, Mr Mead sought to recover that money as an advance by way of loan to Mr Memelink. Mr Memelink did not pay. Eventually proceedings were issued in the District Court, resulting in Judge Tompkins’ decision which is now under appeal.

The Judge’s decision

[7] Mr Memelink acted for himself. Mr Mead was represented by counsel. The case proceeded on the basis of affidavits that had been sworn by Mr Mead on the one
hand and Mr Memelink’s assistant, Ms Terpstra, on the other. Mr Mead also relied

2 All amounts are in Australian dollars unless otherwise stated.

on the evidence of a Mr Sean…

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 Mead

Details

AGLC: Memelink v Mead [2016] NZHC 3008
Case: [2016] NZHC 3008
Decision Date: 12 December 2016

CaseChat Overview and Summary

Memelink v Mead involved an appeal by Harry Memelink against a District Court decision that a sum of money transferred by Bruce Alan Mead to a bank account of a company owned by Memelink was a loan to Memelink personally, and not a payment for trading stock. The High Court was tasked with determining whether the evidence upon which the District Court based its decision was reliable and sufficient to conclude that the payment was a loan. The central issue was whether the email trail, which the District Court found crucial, accurately reflected the sequence of communications between the parties, and whether the documentary evidence supported the conclusion that the payment was a loan.

The High Court found that the email evidence was problematic. The emails, which showed an exchange on 18 March 2009, indicated that an email from Memelink to Mead acknowledging the $40,000 as a loan was received by Mead before Mead had sent his email identifying the sum as a loan. This discrepancy undermined the reliability of the email evidence as presented. Further, the affidavit of an independent expert, Blair Revell, did not provide a satisfactory explanation for the time discrepancies in the emails. Consequently, the High Court could not conclude that it was more likely than not that Memelink acknowledged the payment as a loan. The documentary evidence also did not clearly support the District Court's conclusion. The High Court found that the documentary evidence was inconclusive regarding the nature of the payment, and the uncertainties combined with the issues in the email evidence led the Court to allow the appeal.

The appeal was allowed, and the High Court set aside the District Court's decision. There was no order for costs or disbursements as Memelink was self-represented. The Court highlighted the importance of addressing the timing issues in the email evidence at the original hearing in the District Court.

Orders