Memelink v Official Assignee - [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…

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 [2019] NZHC 2639
Case: [2019] NZHC 2639
Decision Date: 16 October 2019

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