Memelink v Official Assignee - [2020] NZHC 839

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-686

[2020] NZHC 839

UNDER the Insolvency Act 2006

AND

IN THE MATTER OF

an originating application for annulment

BETWEEN

HARRY MEMELINK

Applicant

AND

OFFICIAL ASSIGNEE

Respondent

Hearing: 30 April 2020 (On the papers)

Counsel:

Mr Memelink in-person Plaintiff Mr Chisnall for Respondent

Mr Dewer for supporting creditors (Body Corporate 7378945, Body Corporate 81012, Jefffrey Raymond Fawcett and Gambitsis Crombie Limited)

Judgment:

30 April 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Costs)

This judgment was delivered by me on 30 April 2020 at 12.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 30 April 2020

MEMELINK v OFFICIAL ASSIGNEE [2020] NZHC 839 [30 April 2020]

[1] Mr Dewer, counsel for the abovenamed creditors, has applied for costs following the dismissal of Mr Memelink’s originating application to have his bankruptcy annulled. In a judgment dated 14 June 2019, that application was dismissed.1

[2] I apologise to the parties for the delay in this costs decision being released. Mr Memelink had sought, and was granted, a brief extension of time to file his submissions opposing costs. Those submissions were not referred to me.

[3] Mr Dewer also seeks costs in respect of a judgment of Osborne J, 29 January 2019, in which his Honour granted an application made by Mr Dewer’s clients (the supporting creditors) and the Official Assignee to rescind an order staying the advertising of Mr Memelink’s bankruptcy which was made on a without notice basis.2

[4] In respect of both costs applications, Mr Dewer submits that costs should follow the event and he proposes costs on a 2B basis. An uplift is sought which I will deal with separately.

[5] Mr Memelink has filed submissions in respect of the costs applications which do not directly engage with the principles that govern costs, other than an assertion that the costs claimed are excessive.

[6] I see no reason to depart from the general principle that costs should follow the event in respect of each application. The parties Mr Dewer represents were successful in setting aside the stay obtained by Mr Memelink on a without notice basis and successfully resisted Mr Memelink’s application for annulment. As I have said, Mr Memelink does not address the primary principle that the unsuccessful party should pay costs.3

1      Memelink v Official Assignee [2019] NZHC 1357.
2      Collins & May Law v Memelink [2019] NZHC 36.
3      High Court Rules 2016, r 14.2(1).

[7] In his costs memorandum, Mr Memelink accuses Mr Dewer of acting in a conflict of interest situation, of acting without the authority of one or more of the body corporates’ he represented and asserts he should not have acted.

[8] Similar allegations were made by Mr Memelink in the course of the hearing of his application for annulment and I did not consider that those matters, even if they were made out, (and I do not suggest that they…

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 [2020] NZHC 839
Case: [2020] NZHC 839
Decision Date: 30 April 2020

CaseChat Overview and Summary

In Memelink v Official Assignee, the applicant, Harry Memelink, sought to have his bankruptcy annulled. The Official Assignee and supporting creditors resisted the application. The case was heard and determined on the papers, with counsel representing both sides. Associate Judge Lester delivered the judgment on April 30, 2020. The primary legal issue was whether costs should follow the event, as requested by the Official Assignee and supporting creditors, in light of the dismissal of Memelink's application for annulment of bankruptcy and the successful application to rescind a stay on the advertising of his bankruptcy.

The court found that the general principle that costs should follow the event applied to both applications. Memelink did not directly address the primary principle that the unsuccessful party should pay costs. Although Memelink accused the opposing counsel of acting in a conflict of interest situation and without the authority of one or more of the body corporates he represented, the court found these allegations did not impact the dismissal of Memelink's application. Consequently, the creditors were entitled to costs on each application. The court approved the costs on a 2B basis for both proceedings, with some adjustments to the number of notices of opposition considered. The court also found that there was no basis to grant an uplift in costs, as the scale allowance was intended to cover the costs of affidavit preparation.

In summary, the court held that the unsuccessful party, Memelink, should pay the costs of both the application for annulment of bankruptcy and the application to rescind the stay on the advertising of his bankruptcy. The court approved the costs on a 2B basis, with some adjustments, and found no reason to grant an uplift in costs.

Orders