Memelink v Mead - [2016] NZHC 1886

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-854 [2016] NZHC 1886

UNDER the Insolvency Act 2006

IN THE MATTER OF

the bankruptcy of Harry Memelink

BETWEEN

HARRY MEMELINK Applicant

AND

BRUCE ALAN MEAD Respondent

Hearing: 11 August 2016

Counsel:

Applicant in Person
J C Gwilliam for Respondent

Judgment:

15 August 2016

JUDGMENT OF CLARK J

I direct that the delivery time of this judgment is

4:00 pm on 15 August 2016

MEMELINK v MEAD [2016] NZHC 1886 [15 August 2016]

Introduction

[1] This is an application under r 20.10 of the High Court Rules for a stay of enforcement of a District Court judgment pending appeal.

[2] On 16 September 2015 Judge Tompkins determined that a sum of A$40,000 transferred from Mr Mead into the bank account of a company controlled by Mr Memelink was an undocumented personal loan repayable on demand.

[3] Mr Memelink appeals “on grounds of perjury”. The appeal is set down for

hearing on 1 September 2016.

The legal principles

[4] An appeal does not operate as a stay of enforcement of a judgment appealed against. Despite that the Court may, on application, order a stay of enforcement of a judgment.1 The rationale is that a party is entitled to enjoy the fruits of a judgment in its favour. But that principle is to be balanced against the need to preserve the position in case the appeal is successful.2

[5] In Dymocks Franchise Systems (NSW) Pty Ltd v Bilgoa Enterprises Ltd3

Hammond J addressed the factors the Courts commonly address to find this balance. The following factors are relevant to this application:

(a) whether the applicant’s right of appeal will be rendered nugatory if there is no stay;

(b) the bona fides of the applicant as to the prosecution of the appeal;

(c) whether the successful party will be injuriously affected by the stay.

1      Rule 20.10.
2      Duncan v Osborne Buildings Ltd (1992) 6 PRNZ 85 (CA) at 87.
3      Dymocks Franchise Systems (NSW) Pty Ltd v Bilgoa Enterprises Ltd [1993] 3 NZLR 239 (HC)
at [9].

[6] Ultimately I must exercise my discretion in a manner that best meets the overall justice of the case.4 The object is to ensure the appellate Court is able to do justice between the parties.5

Submissions

[7] Mr Memelink’s essential submission was that a stay should be granted because the situation was a “serious situation of fraud”. He referred me to an “urgent memorandum” filed at 4.07am on the morning of the hearing attaching a number of documents. Mr Memelink said that two documents in particular support his case which is that the payment made was in reduction of an amount owed by Mr Mead or by a company owned by Mr Mead to Mr Memelink. This was the argument rejected by the District Court Judge. In particular Mr Memelink focused on an email exchange which the District Court Judge relied on in determining that the funds were an enforceable personal loan as asserted by…

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 1886
Case: [2016] NZHC 1886
Decision Date: 15 August 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Wellington Registry, the case of Memelink v Mead was heard before Clark J. This case involved Harry Memelink, the applicant and bankrupt, and Bruce Alan Mead, the respondent. The primary issue in the case was whether a stay of enforcement should be granted on a District Court judgment pending an appeal. The District Court had determined that a $40,000 transfer from Mr. Mead to a company controlled by Mr. Memelink constituted an undocumented personal loan repayable on demand. Mr. Memelink appealed the decision, arguing grounds of perjury.

The legal issues before the court involved the principles governing the stay of enforcement of a judgment pending appeal. The court had to balance the right of a party to enjoy the fruits of a judgment against the need to preserve the position in case the appeal is successful. Relevant factors included whether the applicant's right of appeal would be rendered nugatory, the applicant's good faith in prosecuting the appeal, and whether the successful party would be injuriously affected by the stay.

Clark J determined that the appeal would not render Mr. Memelink's right nugatory as the judgment was monetary. The court found that Mr. Memelink's good faith in prosecuting the appeal was questionable due to delays and failures to meet deadlines. Additionally, Mr. Mead would not be injuriously affected by the stay as he had already been waiting for the judgment to be enforced. The court concluded that overall justice was not served by granting a stay. Therefore, the application for a stay was dismissed, and Mr. Mead was entitled to costs.

Orders