Memelink v Official Assignee

[2020] NZHC 97

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-173

[2020] NZHC 97

BETWEEN

HARRY MEMELINK and

LYNX TRUSTEES LIMITED as trustees of Link Trust (No.1)
Applicants

AND

THE OFFICIAL ASSIGNEE

Respondent

Counsel:	H Memelink for himself (by memorandum) D Kerr for respondent (by memorandum)
Judgment:	7 February 2020

COSTS JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[On the papers]

[1]    In  my  judgment  of  16  October   2019   I   dismissed   applications   by   Mr Harry Memelink and the trustees of the Link Trust (No. 1) (Mr Memelink and Lynx Trustees Ltd) for orders pursuant to s 239 of the Insolvency Act 2006 reversing two decisions of the Official Assignee as the assignee of the bankrupt estate of      Mr Malcolm Grindlay. It is not necessary here to restate the issues in the case or summarise my reasons. These are all evident from the substantive judgment. I will however observe that I had little difficulty in reaching the conclusions that I did in that judgment. I reserved costs as I had not heard argument on those. I indicated that if costs could not be agreed the parties could file memoranda and I would deal with them on the papers.

[2]    I now have memoranda on costs from Mr Kerr for the Official Assignee dated 5 December 2019 and Mr Memelink seemingly on his own behalf and on behalf of the

MEMELINK and v THE OFFICIAL ASSIGNEE [2020] NZHC 97 [7 February 2020]

trustees (of course he has no standing to represent the trustees collectively, but I put that to one side) dated 3 February 2020.

[3]    Mr Kerr’s two-page memorandum is straightforward. He says that the applicants were wholly unsuccessful and that, prima facie, the respondent is entitled to a costs award. On the Official Assignee’s behalf he seeks costs on a 2B basis.

[4]    Mr Memelink did not respond by memorandum for two months. His response runs to 87 pages. In effect it is a re-run of all of the arguments advanced in support of the application in the first place, coupled with an attempt to introduce further evidence in the body of the memorandum itself and via various attachments and a great deal of extraneous material.

[5]    The position is very clear. The High Court Rules provide that costs are ultimately a matter for the Court’s discretion. However, in the absence of special circumstances, the successful party in litigation is generally entitled to an award of costs, and these are calculated in accordance with the scales provided for in schedules 2 and 3. Those schedules provide a 3 point range for recovery rates and a 3 point range for time allocation. Thus, the 2B award as sought by the Official Assignee in this case is the mid-range on both scales, and reflects the orthodox position.

[6]    I am not prepared in this costs judgment to re-canvass all of the arguments made on behalf of the applicants in the substantive hearing. It is sufficient to say that there is nothing in Mr Memelink’s extensive memorandum that comes even remotely close to persuading me that the circumstances of this case would justify departing from the orthodox position which I have already described. The reality is that on the available evidence the applications were unsuccessful, and plainly unmeritorious, and that there is no reason to deprive the successful party — The Official Assignee — of her costs.

[7]    I order that the applicants pay to the Official Assignee costs on a 2B basis as calculated by Mr Kerr at paragraph 5 of his memorandum of 5 December 2019, that is to say an all inclusive figure of $12,786.50.

Associate Judge Johnston