Memelink v Body Corporate 81012 [2023] NZCA 639 (13 December 2023)

Last Updated: 18 December 2023

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA447/2023 [2023] NZCA 639

	BETWEEN	HARRY MEMELINK AND CISCA JOHNETTE FORSTER AS TRUSTEES OF THE LINK TRUST (No. 1) Applicants
	AND	BODY CORPORATE 81012, BODY CORPORATE 68792 AND BODY CORPORATE 378945 Respondents

Court:	Courtney and Collins JJ
Counsel:	Applicants in person A S Olney for Respondents P R W Chisnall and C R Vinnell for Official Assignee G A D Neil and R M G Hindriksen for Lynx Trustees Ltd (in Liq)
Judgment: (On the papers)	13 December 2023 at 9.30 am

JUDGMENT OF THE COURT

1. The application under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time to bring an appeal is declined.
2. The application to stay the appointment of receivers is declined.

100. The application to adduce further evidence is declined.

4. The application challenging the status of counsel for the receivers is declined.
5. The respondents are entitled to costs on a band A basis together with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

• [1] This judgment addresses four applications:

(a) An application under r 29A of the Court of Appeal (Civil) Rules 2005 (the Rules) to extend time to appeal a judgment delivered by the High Court on 31 May 2022.^[1]

(b) An application to stay the appointment of receivers to a trust.

(c) An application to adduce further evidence.

(d) An application challenging the status of counsel for the respondents.

Background

• [2] The applicants, Mr Memelink and Ms Forster, are the trustees of the Link Trust (No 1) (the Trust). Lynx Trustees Ltd (Lynx), which was placed into liquidation in 2019, was also a trustee of the Trust.
• [3] For many years, Mr Memelink did business and owned properties through the Trust. Mr Memelink was adjudicated bankrupt in August 2018 but has continued to direct, manage and conduct litigation on behalf of the Trust.
• [4] On 31 May 2022, Churchman J determined three cases involving Mr Memelink and the Trust (the High Court judgment).^[2] As a consequence of the High Court judgment, receivers were appointed to the Trust.
• [5] On 3 June 2022, Mr Memelink and Ms Forster filed in this Court:

(a) a notice of appeal from the High Court judgment; and

(b) an application to stay the appointment of the receivers of the Trust.

• [6] The application to stay the appointment of the receivers was declined by this Court on 27 July 2022.^[3]
• [7] On 3 September 2022, the appeal was deemed abandoned for want of prosecution pursuant to r 43(1) of the Rules.
• [8] Mr Memelink and Ms Forster then filed an application for an extension of time to file a case on appeal and to apply for a fixture. They also filed a second application to stay the appointment of receivers. Those applications were declined by this Court on 29 November 2022.^[4]
• [9] On 4 August 2023, Mr Memelink and Ms Forster filed the first two applications we have summarised at [1]. The remaining applications were made on 17 October 2023.

Application to extend time to file appeal

• [10] The application to extend the time for filing an appeal appears to be based on the contention that new evidence has emerged of significant “fraud and criminality” in the way the application to appoint receivers for the Trust was pursued. It is also alleged that one of the administrators of the Trust did not have “lawful authority in relation to the proceeding”, and has “committed unlawful acts”, including being a party to “instructing the theft of property” and “assault”.
• [11] For reasons that are not properly explained, the application to extend time to file an appeal was not served on the Official Assignee or Lynx. We did, however, receive submissions on behalf of both the Official Assignee and Lynx. The failure to serve parties illustrates the unsatisfactory way in which Mr Memelink and Ms Forster have conducted this litigation.
• [12] The principles governing applications to extend time to appeal under r 29A were summarised by the Supreme Court in Almond v Read.^[5] Relevant considerations include:^[6]

(a) the length of the delay;

(b) the reasons for the delay;

(c) the conduct of the parties, and in particular, the conduct of the applicant;

(d) any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome; and

(e) the significance of the issues raised by the proposed appeal, both to the parties and more generally.

• [13] The Supreme Court explained that merits may also be relevant but there will be instances in which the merits will be subsumed by other factors, such as the length of the delay and the prejudice to the respondent.^[7] The overriding consideration requires us to determine what the interests of justice require.
• [14] In the present case, the application for an extension of time was filed approximately 263 working days after the time for filing an appeal expired.
• [15] The delays in this case have been significant, even when allowance is made for time lost through the abandonment of the appeal and the application to extend time to file a case on appeal and apply for a fixture.
• [16] The only reason offered for the delays is the discovery of so-called “fresh evidence”, none of which is directly relevant to an appeal from the High Court judgment. Instead, the material relied upon to support the application comprises unsubstantiated allegations of corruption on the part of an administrator of the Trust.
• [17] Mr Memelink’s conduct borders on the vexatious. He has demonstrated a fierce determination to frustrate the receivership by presenting unmeritorious applications, which, in substance, repeat the applications that have already been determined by this Court.
• [18] Allowing the application under r 29A would only serve to prolong this costly and prolix litigation.
• [19] The interests of justice overwhelmingly favour declining to extend time to file what, on its face, is an appeal devoid of merit.

Application to stay appointment of receivers

• [20] This Court has already decided on two previous occasions not to stay the appointment of the receivers. Nothing before us justifies us departing from our earlier decisions.

Application to adduce further evidence

• [21] The so-called fresh evidence is far from cogent and does not assist us in determining any matter in issue in this proceeding.^[8] The application is therefore declined.

Application concerning status of counsel

• [22] Mr Memelink has filed a number of memoranda challenging counsel for the respondents’ status. According to Mr Memelink, counsel does not have instructions from any of the body corporates. This has been rejected by counsel for the respondents, who advises in a memorandum dated 7 November 2023 that two of the body corporates have confirmed their instructions, including their opposition to the application to adduce further evidence.
• [23] In any event, whether a body corporate has given instructions or not does not impact upon the absence of merits to the applications we have to determine.

Result

• [24] The application under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time to bring an appeal is declined.
• [25] The application to stay the appointment of receivers is declined.
• [26] The application to adduce further evidence is declined.
• [27] The application challenging the status of counsel for the receivers is declined.

Costs

• [28] The respondents are entitled to costs on a band A basis together with usual disbursements.

Solicitors:
Steve Gill Law, Lower Hutt for Respondents
Anthony Harper, Christchurch for Official Assignee
Meredith Connell, Auckland for Lynx Trustees Ltd (in Liq)

---

^[1] Body Corporate 81012 v Memelink [2022] NZHC 1244 [High Court judgment].

^[2] High Court judgment, above n 1.

^[3] Memelink v Body Corporate 81012 [2022] NZCA 333.

^[4] Memelink v Body Corporate 81012 [2022] NZCA 581.

^[5] Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [35]–[40].

^[6] At [38].

^[7] At [39].

^[8] Evidence Act 2006, s 7; and Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].