Memelink v Official Assignee - [2023] NZHC 3317

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-363

[2023] NZHC 3317

UNDER the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of Harry Memelink

BETWEEN

HARRY MEMELINK

Applicant

AND

THE OFFICIAL ASSIGNEE

Respondent

PETERLAND LIMITED
First Interested Party

PETER GOODSON

Second Interested Party

Hearing: 8 November 2023

Appearances:

No appearance by or for the Applicant P Chisnall for Respondent

P Barrett for first and second interested parties

Judgment:

4 December 2023

JUDGMENT OF ASSOCIATE JUDGE SKELTON

[1] The applicant, Harry Memelink, was adjudicated bankrupt in August 2018. He applies under s 238 of the Insolvency Act 2006 for an order cancelling the Official Assignee’s admission of a claim by the first interested party, Peterland Ltd (“Peterland”) in the bankruptcy. The second interested party, Peter Goodson, is a director and shareholder of Peterland. Peterland and Mr Goodson (Interested Parties) oppose the application.

MEMELINK v THE OFFICIAL ASSIGNEE [2023] NZHC 3317 [4 December 2023]

[2] The Official Assignee filed a notice of appearance and affidavits of Robert McDonald, the Official Assignee at the Insolvency and Trustee Service in Christchurch. Mr Chisnall, counsel for the Official Assignee, appeared at the hearing to assist the Court.

[3] The hearing of Mr Memelink’s application on 18 October 2023 was adjourned because Mr Memelink did not appear.1 Mr Memelink had advised that he was suffering from leg pain and needed to seek medical attention. I stated in my minute recording the adjournment that, if Mr Memelink failed to appear at the next hearing of his application, it would be likely that the Court would proceed to hear the matter in his absence based on the material that he has filed.2 On 7 November 2023, Mr Memelink made a further application for adjournment of the hearing. He stated that he was still unwell and referred to a medical certificate, but no medical certificate was provided. On the same day, I declined the application for adjournment.3

[4] Mr Memelink did not appear at the hearing on 8 November 2023, nor did he arrange for anyone to appear on his behalf. In the circumstances, and given the public interest in the efficient use of Court resources, I directed that the hearing would proceed in his absence.

Statutory framework

[5] Mr Memelink has previously challenged determinations of the Official Assignee in this bankruptcy.4 In Memelink v The Official Assignee, Associate Judge Johnston summarised the relevant statutory framework for unsecured creditors as follows:5

1      An earlier application for adjournment by Mr Memelink was declined: see Memelink v Official Assignee HC Wellington CIV-2018-485-363, 16 October 2023 (Minute of Associate Judge Skelton)
2      Memelink v Official Assignee HC Wellington CIV-2018-485-363, 18 October 2023 (Minute of Associate Judge Skelton) at [13].
3      Memelink v Official Assignee HC Wellington CIV-2018-485-363, 7 November 2023 (Minute of Associate Judge Skelton).
4      Most recently, see Memelink v Official Assignee [2023] NZHC 2342.
5      Memelink v The Official Assignee [2020] NZHC 2709 (footnotes omitted). See…

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 Official Assignee

Details

AGLC: Memelink v Official Assignee [2023] NZHC 3317
Case: [2023] NZHC 3317
Decision Date: 4 December 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Associate Judge Skelton heard an application by Harry Memelink, an adjudicated bankrupt, to cancel the Official Assignee's admission of a claim by Peterland Ltd in his bankruptcy. The Official Assignee had admitted a claim by Peterland Ltd for $84,709.13, which Peterland Ltd and Peter Goodson, a director and shareholder of Peterland Ltd, opposed. The key legal issue was whether the Official Assignee properly admitted Peterland Ltd's claim. The Court was required to determine whether the Official Assignee's determination to admit the claim was reasonable and properly founded.

The Court found that there was no evidence to support Mr Memelink's contention that the lease had been renewed. The Official Assignee had considered all relevant documents and sought external legal advice before admitting the claim. The Court held that the Official Assignee's decision to admit the claim in the sum of $84,709.13 was reasonable and properly founded. Mr Memelink's arguments regarding set-off claims by himself, Link Technology 2000 Ltd, and other parties were also rejected. The Court concluded that the Official Assignee's admission of Peterland Ltd's claim and the process by which that determination was reached were reasonable. Mr Memelink's application for an order cancelling the Official Assignee's admission of the claim by Peterland Ltd in the bankruptcy of Mr Memelink and for ancillary orders was dismissed. The Interested Parties and the Official Assignee are entitled to costs on a 2B basis, and the parties should endeavour to agree on the costs. If agreement cannot be reached, memoranda not exceeding three pages (excluding costs schedules) may be filed and costs will be determined on the papers.

Orders