BODY CORPORATE 81012 v MEMELINK [2023] NZHC 1749

BODY CORPORATE 81012 v MEMELINK [2023] NZHC 1749

Leave was refused and all applications for interim injunctions and related relief dismissed because the receivership order and applicable statutory provisions restrict trustees/bankrupt from initiating or continuing proceedings without leave or consent; the applicants lacked standing or consent, their allegations against the receivers were unparticularised and unsubstantiated, many points were previously finally determined on the merits or on appeal, and there was no serious question to be tried while the receivers act to realise assets for creditors, with the balance of convenience and overall justice favouring continuation of the receivership.

Citation
[2023] NZHC 1749
Parties
Plaintiff (applicant for Receivership): Body Corporate 81012; Plaintiff (applicant for Receivership): Body Corporate 68792; Plaintiff (applicant for Receivership): Body Corporate 378945; Defendant / Trustee / Bankrupt / Applicant for Leave: Harry Memelink; Defendant / Trustee: Cisca Johnette Forster
Court
High Court
Jurisdiction
New Zealand
Judgment Date
31 July 2023
Procedural Posture
Receivership, Bankruptcy and Associated Civil Litigation / Interlocutory Applications for Leave and Interim Injunctions; Judgment on Leave Application and Dismissal of Applications (31 July 2023)
Outcome
Application for leave to pursue proceedings, applications for interim injunctions and related relief dismissed
Legal Topics
Receivership Appointment and Powers, Leave to Commence or Continue Proceedings While in Receivership, Stay of Proceedings, Interim Injunctions, Automatic Discharge From Bankruptcy, Abuse of Process, Conflict of Interest, Insurance and Asset Realisation
Insolvency Trusts Civil Procedure Property Law Equity Receivership Appointment and Powers Leave to Commence or Continue Proceedings While in Receivership Stay of Proceedings +5 more

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Parties

Body Corporate 81012

Plaintiff (applicant for Receivership)

Body Corporate 68792

Plaintiff (applicant for Receivership)

Body Corporate 378945

Plaintiff (applicant for Receivership)

Harry Memelink

Defendant / Trustee / Bankrupt / Applicant for Leave

Cisca Johnette Forster

Defendant / Trustee

Procedural Posture

Receivership, Bankruptcy and Associated Civil Litigation / Interlocutory Applications for Leave and Interim Injunctions; Judgment on Leave Application and Dismissal of Applications (31 July 2023)

Legal Issues

  1. 1 Whether trustees or a bankrupt have standing/leave to pursue or continue proceedings while trust is in receivership and bankrupt remains undischarged
  2. 2 Whether leave should be granted to replace or vary court-appointed receivers or to stay/modify the receivership
  3. 3 Whether allegations of receivers' misconduct, conflict of interest or sales at undervalue raise serious questions to be tried to justify interim injunctions or leave

Ratio Decidendi

Leave was refused and all applications for interim injunctions and related relief dismissed because the receivership order and applicable statutory provisions restrict trustees/bankrupt from initiating or continuing proceedings without leave or consent; the applicants lacked standing or consent, their allegations against the receivers were unparticularised and unsubstantiated, many points were previously finally determined on the merits or on appeal, and there was no serious question to be tried while the receivers act to realise assets for creditors, with the balance of convenience and overall justice favouring continuation of the receivership.

Court Disposition

Application for leave to pursue proceedings, applications for interim injunctions and related relief dismissed

Orders

  • Applications for leave to apply for interim injunctions and related applications dismissed
  • Leave granted to the receivers to file the further affidavit dated 30 May 2023 (filed to update insurance claim acceptance)