Memelink v Official Assignee

Case [2019] NZHC 2639


Jefferies v Police [2019] NZHC 2702

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-173

[2019] NZHC 2639

BETWEEN

HARRY MEMELINK and

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

AND

THE OFFICIAL ASSIGNEE

Respondent

Hearing: 15 October 2019

Counsel:

Applicant in person

No appearance for Lynx Trustees Ltd D Kerr for respondent

Judgment:

16 October 2019


JUDGMENT OF ASSOCIATE JUDGE JOHNSTON


Introduction

[1]                  Before the Court are applications pursuant to s 239 of the Insolvency Act 2006 for orders reversing two decisions of  the  Official  Assignee  as  the  assignee  of  Mr Malcolm Grindlay’s estate in bankruptcy.

[2]The impugned decisions are:

(a)A decision made on 5 March 2019 rejecting a claim by Mr Harry Memelink in his personal capacity against the estate.

(b)Another decision made on 5 March 2019 allowing in part and rejecting in part a claim by the trustees of the Link Trust (No. 1). At all material

MEMELINK and LYNX TRUSTEES LTD v THE OFFICIAL ASSIGNEE [2019] NZHC 2639

[16 October 2019]

times down to mid-2019 Mr Memelink and Lynx Trustees Ltd were the trustees of the trust, but I am informed that since then the trustees have been Mr Memelink and Ms Cisca Forster.

[3]                  The applications are opposed, the Official Assignee’s notice of application being dated 2 August 2019.

Preliminary matters

[4]Two preliminary matters:

(a)First, and obviously, the intitulment to the proceeding was incorrect from the outset. There should have been two applicants, Mr Memelink in respect of the first application and the trustees of the trust in their capacities as such in respect of the second application. I direct that  Mr Memelink be treated as the first applicant and the trustees be treated as the second applicants.

(b)Second,  and  more  importantly,   at   the   outset   of   the   hearing Mr Memelink referred to the change of trustee in mid-2019. He explained to me that Lynx Trustees had resigned and that Ms Forster had been appointed. Effectively, he sought an order amending the intitulment accordingly. For the Official Assignee, Mr Kerr objected to the removal of Lynx Trustees but raised no objection to the joinder of Ms Forster. No doubt the Official Assignee’s position on this is related to costs. I am concerned about making any order joining Ms Forster as an applicant when there is no evidence before the Court of her willingness to be joined as such. I make an order joining her as a third-named second applicant, relying on Mr Memelink’s assertion as to her appointment, but I record that I do so only on the basis that no costs order will be made against Ms Forster in her personal capacity without her being given an opportunity to be heard.

Relevant law

[5]Section 239 of the Insolvency Act provides:

(1)A creditor whose claim has been rejected by the Assignee may apply to the court for an order modifying or reversing the Assignee’s decision.

(2)The creditor must apply within 15 working days…

Continue reading Memelink v Official Assignee

Sign in free to access the full text

Details
AGLC
Memelink v Official Assignee [2019] NZHC 2639
Case
[2019] NZHC 2639
Decision Date

CaseChat Overview and Summary

The applicants, Harry Memelink and Lynx Trustees Limited as trustees of Link Trust (No. 1), filed an application against the Official Assignee to reverse two decisions made on 5 March 2019. The first decision rejected a claim by Mr Harry Memelink against the estate of Mr Malcolm Grindlay in bankruptcy. The second decision allowed in part and rejected in part a claim by the trustees of the Link Trust (No. 1). The Official Assignee opposed the applications. The legal issues before the court were whether the Official Assignee's decisions were reasonable and if the applicants could prove that the decisions were wrong. The court found that the applicants failed to provide sufficient evidence to support their claims and dismissed the applications. The court confirmed the Official Assignee's decisions and reserved costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.