BODY CORPORATE 68792 v MEMELINK AND FORSTER [2023] NZHC 3637

BODY CORPORATE 68792 v MEMELINK AND FORSTER [2023] NZHC 3637 [12 December 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2022-485-802[2023] NZHC 3637BETWEEN BODY CORPORATE 68792PlaintiffAND HARRY MEMELINK AND CISCAJOHNETTE FORSTER as Trustees of theLink Trust (No. 1) (in receivership)DefendantsAND IAIN SHEPHARD AND JESSICAKELLOW as receivers of the Link Trust(No 1)Interested partyHearing: 6, 9 and 17 October 2023Appearances: J J Pietras and N L Donaldson for PlaintiffH Memelink self-represented for DefendantsJ D Haig for interested partyJudgment: 12 December 2023JUDGMENT OF GRICE J(Re interlocutory application to remove Mr Anthony Gambitsis as Court-appointed administrator of Body Corporate 68792)Introduction[1] Mr Memelink has filed an interlocutory application to remove Mr Gambitsis(the administrator) as administrator of Body Corporate 68792 (the body corporate).1The administrator was cross examined following an application by Mr Memelink.2[2] The administrator opposes the application for removal on the basis that a stayof proceedings is in place following orders made relating to the receivership of theLink Trust (No. 1), and therefore Mr Memelink and Ms Forster are unable to pursuetheir application as trustees of that trust. In order to pursue litigation by or for thetrust, the receivers must consent or this Court grant leave for the trustees to do so.[3] The administrator, supported by the receivers of the Link Trust (No. 1) as aninterested party, says it is an abuse of process to bring an interlocutory application forremoval of the administrator in proceedings which related to claims of interference bythe defendants in arrangements for insurance of the body corporate. Mr Haig for thereceivers says attempting to bring an interlocutory application to circumvent the stayis an abuse of process.Background[4] Mr Gambitsis was appointed by order of the Court with the consent of the unitholders of the body corporate on 5 October 2017.3 Before that, two otheradministrators had held the role. First was Mr Greenwood, who was appointed by the1 This application and an application by the administrator for orders for an extended restrainingorder against Mr Memelink under s 166 of the Senior Courts Act 2016 was timetabled for a shorthearing in a case management conference on 28 August 2023: Body Corporate 68792 v MemelinkHC Wellington CIV-2022-485-802, 29 August 2023 (Minute of Harland J).2 Mr Memelink indicated at the outset of the hearing that he was in pain due to his leg and wasunder stress. I granted leave for Mr Memelink to be assisted and seated beside Mr Bassett-Burr,who is Mr Memelink's advisor and brother-in-law. The Registrar arranged for a higher chair tobe brought into the courtroom for Mr Memelink to accommodate him. Mr Memelink sat next toMr Bassett-Burr, who assisted Mr Memelink throughout the hearing and also addressed the Courton a number of occasions to summarise matters for Mr Memelink.3 Body Corporate 68792 v Synergy Enterprises Ltd HC Te Whanganui-a-Tara | WellingtonCIV-2015-485-000 202, 5 Ōketopa | October 2017.High Court on 18 March 2015.4 He was replaced by Mr Naylor, who was appointedon 9 September 2016.5[5] Mr Memelink was adjudicated bankrupt on 28 August 2018. The effective dateof the bankruptcy was 6 September 2019, as the date on which the Official Assigneehad received enough information to satisfy the requirement on the bankrupt to supplya statement of assets. Mr Memelink remains bankrupt. An application by theOfficial Assignee opposing Mr Memelink's automatic discharge from bankruptcy wasgranted in a decision delivered after this hearing.6[6] Mr Memelink and Ms Forster are the trustees of the Link Trust (No. 1).Mr Memelink is a discretionary beneficiary of the trust. The trust was put intoreceivership by order of this Court on 31 May 2022.7 The orders were subsequentlyvaried in December 2022,8 adding a provision staying proceedings by or against thetrust.9 The judgment putting the trust into receivership was appealed and the appealwas dismissed.10[7] Mr Memelink and Ms Forster failed in a series of applications to this Courtseeking leave to revisit the appointment of the receivers and/or the terms of the ordersappointing the receivers. Mr Memelink, for the trustees, sought orders replacing thereceivers, suspending the receivership, or allowing the trustees (in particular,Mr Memelink) to have control over the realisation and management of the assets,property and the businesses owned by the trust which were and presently are in thecontrol of the receivers.11[8] The receivership order insofar as it relates to the stay provides:124 Body Corporate 68792 v Memelink [2015] NZHC 519.5 Body Corporate 68792 v Memelink [2016] NZHC 2146.6 Official Assignee v Memelink [2023] NZHC 3044.7 Body Corporate 81012 v Memelink [2022] NZHC 1244 [receivership decision].8 Body Corporate 81012 v Memelink [2022] NZHC 3307 [receivership variation decision].9 Body Corporate 81012 v Memelink HC Wellington CIV-2021-485-419, 19 December 2022 (sealedinterlocutory order) [sealed interlocutory order] at [1(q)].10 Memelink v Body Corporate 81012 [2022] NZCA 581 [CA receivership appeal decision].11 Body Corporate 81012 v Memelink [2023] NZHC 1749 [decision declining removal of receivers]at [5] and [121].12 Sealed interlocutory order, above n 9.(q) Section 248(1)(c) of the Companies Act 1993 applies to thereceivership of the Trust such that unless the receivers agree or theCourt orders otherwise:(i) all proceedings by or against the Trust (in the name of thetrustees) are stayed for the period the receivers are appointed;and(ii) in the case of proceedings against the Trust, any such claimantshall submit a creditor claim in the receivership in accordancewith order 1(h) [9] Mr Memelink has filed the application now before the Court in proceedingswhich began as an application by the administrator on behalf of the body corporate foran interim injunction to restrain Mr Memelink and Ms Forster from interfering withthe insurance arrangements for the body corporate and for the properties in thebody corporate complex. The interim injunction was granted on 15 December 2022.13The judgments restrained Mr Memelink and Ms Forster from interfering with businessmatters relating to the body corporate.[10] Mr Haig for the receivers indicated that the receivers took the position that thisproceeding, as pleaded, was not by or against the trust. As the proceeding was broughtby the administrator of the body corporate, and while the intituling indicated thatMr Memelink and Ms Forster were defendants as trustees, in fact the pleadings weredirected at them personally and the injunction was granted against them personallydespite the reference in the intituling to their being trustees. The trust controlled theassets, including any litigation that it was entitled to pursue or defend, given the termsof the receivership orders. The receivers had not agreed to Mr Memelink andMs Forster interfering with the body corporate insurance. The injunction sought wasto restrain Mr Memelink from contacting the underwriters and brokers of the insurancefor the body corporate. Mr Memelink's objective, the administrator claimed, was topersuade the insurers to avoid the insurance because of defects in the properties oralleged failures by the administrators/receivers to meet various regulatoryrequirements in relation to the buildings.13 Body Corporate 68792 v Memelink [2022] NZHC 3489 [result judgment]; Body Corporate 68792v Memelink [2022] NZHC 3498 [reasons judgment].[11] The statement of claim filed by the Body Corporate 68792 in the substantiveproceeding pleads that the receivers were concerned about the steps taken byMr Memelink to disrupt the sale process. It alleged Mr Memelink had sent emails to,among others, brokers and underwriters, claiming matters had not been properlydisclosed to the underwriters. The administrator was of the view that if cover wascancelled, it would be unlikely the property could obtain replacement cover, and inaddition a prospective sale of a unit in the complex might be compromised should theinsurance be cancelled. The administrator pleaded that the units in the body corporatecomplex were "ultimately worthless without insurance, an outcome the Trusteesobviously sought." The statement of claim sought a declaration that the trustees had"tortiously interfered with the insurer" and a declaration that the trustees had breachedearlier orders made by Cooke J prohibiting any interference with the sale process, aswell as general and punitive damages. An interim injunction restraining Mr Memelinkand Ms Forster was granted on 15 December 2022.14 The substantive claim has notyet been heard.[12] Mr Memelink filed a statement of defence on 12 January 2023, referring to anaffidavit by him dated 12 December 2022 which had been filed with the statement ofdefence. The statement of defence is difficult to follow. It pleads a number of mattersnot relevant to the claim and is a mixture of submissions and evidence. However,insofar as relevant to this application, it pleads that Mr Memelink "has genuineconcerns" that there has been non-disclosure of information to the insurers and theirbrokers by the body corporate administrators as to whether the cover is appropriate,and whether the cost of premiums has been fair. It goes on to plead that a buildingwarrant of fitness was required prior to obtaining insurance and that there was "not asingle year on record" where there were registered building warrants of fitness for theentire site. The statement of defence goes on to allege non-compliance in a failure todisplay the building warrant of fitness, that the building levies were "~3.5 times whatthey should be", that Mr Gambitsis has never provided to the Court or to thedefendants a breakdown of monies purported to be owed by Mr Memelink and detailsof ordinary levies, as well as general allegations that Mr Gambitsis had failed in hisduties as "Court appointed administrator in all manner of ways and the Court should14 Result judgment, above n 13; and reasons judgment, above n 13.immediately remove him from that position as officer of the Court, and also removeMr O'Connor, from the position of body corporate counsel."15[13] Under the heading "Notice of Defendant counter claims", the defendants seekvarious orders, including the lifting of trespass orders preventing the trustees fromentering trust properties, halting the receivership, halting the Lynx Trustees Ltdliquidation "as it is totally based on the false BC68792 levies."16 The counterclaimgoes on to seek that all insurances be voided retrospectively and refund sought,ordinary levies recalculated correctly and refund credits applied to unit owners, as wellas costs and damages, removal of Court-appointed administration and lawyers, and anacknowledgment and apology from the Court and the Court-appointed administratorsfor stress and damages suffered by the defendant.[14] The statement of defence inserts comments in red under each of the allegationsin the statement of claim. The general thrust of the statement of defence is that thetrust was not insolvent at the time of receivership, the body corporate levies had beenovercharged and were disputed, and the trustees were entitled to seek to place a caveaton body corporate units (which had led to the orders of Cooke J) by Mr Memelink asa trust beneficiary to ensure the receivers sold the units for a maximum market price.[15] Mr Memelink then filed an application dated 26 June 2023 in this proceedingfor removal of the court-appointed administrator, Mr Gambitsis. However,Mr Memelink amended the intituling in his application by adding: "In the matter ofSection 141 of the Unit Titles Act 2010, an originating application to appoint anadministrator".17 The body of the document is in the form of an interlocutoryapplication on notice and is on the first page headed "Interlocutory application onnotice" using the form supplied in the High Court Rules 2016. The intituling also adds"Roy William Bassett-Burr as Advisory Trustee of the Link Trust (No. 1) inReceivership". It features a second applicant, Philco Investments Ltd (Philco). Noleave application to add defendants has been filed.15 Mr Alwyn O'Connor at that time acted for the Body Corporate. He is no longer a barrister andsolicitor.16 Lynx Trustees Ltd is in liquidation. It was formerly a trustee of the Link Trust (No. 1).17 This has not been added to the intituling in this judgment.[16] The application seeks:(a) the immediate removal of Mr Gambitsis as administrator ofBody Corporate 68792;(b) the replacement of Mr Gambitsis with either:(i) a committee of unit owners including the trustees, Mr Memelinkand Ms Forster, or(ii) a nominated party suitably qualified to replace Mr Gambitsis asadministrator (noting that Mr Ben Stockbridge has indicated heis available to act as administrator on an interim basis);(c) the ordinary levy to immediately be set correctly for this body corporateand as per the Unit Titles Act 2010;(d) the receivership of Link Trust (No. 1), the liquidation of formerLink Trust (No. 1) trustee Lynx Trustees Ltd, and Body Corporate68792's claims in Mr Memelink's bankruptcy to be immediately stayedpending a full investigation and audit of Body Corporate 68792 affairsby a private investigator, Mr Clinton Bowerman, and police;(e) all information previously requested by the trustees and other unitowners to be immediately provided; and(f) CIV-2021-485-122 to be "immediately re-started".18[17] The grounds upon which the relief is sought are that Mr Gambitsis had notfollowed due process and compliance with the legislation governing thebody corporate, being the Unit Titles Act 2010 and the Unit Title Regulations 2011specifically. In particular, he points to alleged failures of Mr Gambitsis, said toinclude:18 This is one of the proceedings stayed pursuant to the order of Churchman J in the receivershipvariation decision, above n 8.(a) failing to hold meetings and resolutions, pursuant to ss 88–104;(b) failing to register his appointment on the unit titles, pursuant tos 141(9);(c) failing to insure buildings and improvements "to their full insurablevalue", pursuant to ss 134–137;(d) failing to maintain things such as the body corporate common area,building warrant of fitness and fire protection systems, pursuant tos 138; and(e) failing to provide information to trustees, trust lenders, tenants andprospective unit purchasers, pursuant to s 206, to the trustees'detriment.[18] It goes on to state that Mr Gambitsis had not followed due process andcompliance, had not sought court approval for his fees and operating budgets, providedreports to the Court, convened annual general meetings or extraordinary generalmeetings of unit owners, provided complete financial reports and budgets to unitowners or sought to "collaborative [sic] resolve issues".[19] The application sets out as further grounds that Mr Gambitsis had not correctlyset the body corporate levies, had provided no reports, had not gained approval fromthe Court for his remuneration or decisions of major importance and had engagedMr O'Connor as a lawyer. The grounds criticise Mr O'Connor's performance. Afurther ground is that Mr Gambitsis "has sanctioned malicious and vexatious publicdefamation against the trustees".[20] The application concludes as follows:Additionally:4. The Trust Receivers and Lynx Liquidators were long go [sic] madewell aware of the potential fraud, breaches of the [Unit Titles Act] andstraight-out criminality within the BC68792 administration, as well as thelegitimate outstanding claims of the Trust against BC68792, but chose andcontinue to choose to not inform the Court or take any action what-so-ever.5. I conclude by stating that the Court has a significant and growingliability for the criminality existing within BC68792 and the consequentdestruction of Trust, company and personal assets, and the significantfinancial and health impacts to the applicant their families and theirsupporters.6. If the Court does not act to put a stop to the current administration, thedamages will continue against BC68793, BC68792 Unit owners and theCourt.[21] The application was signed by Mr Memelink "as Trustee of theLink Trust (No. 1), on behalf of the applicants."The body corporate/administrator[22] Mr Pietras submits that the interlocutory application falls foul of thereceivership stay order which stays proceedings by and against the trust (in the namesof the trustees).19 In addition, he says the interlocutory application is being used torelitigate matters that have already been determined by the Court on a number ofoccasions.[23] Mr Pietras further points out that Philco, which appears in Mr Memelink'sapplication intituling as second applicant, has no standing to support the application,because it was never joined as a party to the substantive proceedings. A similar issuearises in relation to Mr Bassett-Burr, who appears on Mr Memelink's applicationintituling as a trustee designated as an "advisory trustee".[24] The body corporate points out that Mr Memelink's submissions make noreference to its notice of opposition, in particular the fundamental issue of standing tobring the application in the light of the lack of standing and order staying proceedings.[25] The stay is expressed as applying s 248(1)(c) of the Companies Act 1993 to thereceivership in relation to all proceedings by and against the trust (in the name of thetrustees) to stay such proceedings for the period the receivers are appointed. Thatsection provides insofar as is relevant:19 Sealed interlocutory order, above n 9.248 Effect of commencement of liquidation(1) With effect from the commencement of the liquidation of acompany,—(c) unless the liquidator agrees or the court orders otherwise, aperson must not—(i) commence or continue legal proceedings against thecompany or in relation to its property; or(ii) exercise or enforce, or continue to exercise orenforce, a right or remedy over or against property ofthe company:[26] Mr Haig, on behalf of the receivers as interested party, supports theadministrator's position. He says the application is an abuse of process and that alllitigation has been stayed for or against the trust. Therefore, Mr Memelink andMs Forster as trustees cannot pursue this application. They do not have the consent ofthe receivers nor has the Court granted leave for Mr Memelink and Ms Forster topursue it. An application to remove an administrator would be made by abody corporate member or other interested party. The trust is the owner of the unitand a body corporate member could not bring this application other than with theconsent of the receivers who controlled the trust.[27] Mr Haig said the counterclaim was a breach of the stay because thecounterclaim introduced new matters not relevant to the proceedings as set out in thestatement of claim. The matters including the removal of the receivers andadministrators and the disputes concerning levy and insurance were matters for thereceivers to pursue if they considered it appropriate on behalf of the trust. Therefore,not having the consent of the receivers, Mr Memelink and Ms Foster purporting to betrustees were attempting to circumvent the stay by filing an application to remove anadministrator, in proceedings which related to Mr Memelink and Ms Forsterpersonally, rather than as trustees.The additional applicants named in the intituling[28] Mr Memelink said that the added applicants, Mr Bassett-Burr as "advisorytrustee" and Philco, have an interest in the proceeding and therefore could be joined.In addition, Philco is not a trustee, and therefore Mr Memelink said it was entitled toparticipate in the proceeding without being caught by the stay.[29] Mr Memelink submits that Philco has standing in the proceedings, as it is amortgagor of one of the units and so has an interest in the insurance arrangements.Mr Bassett-Burr is a director and shareholder of Philco. When I asked him in thecourse of the argument (he was assisting Mr Memelink) whether he had consented tohis and his company's name being added to the proceeding as an applicant, heindicated that he needed to seek advice before he consented to being part of theproceedings, either personally as a named advisory trustee or for his company Philco.[30] Mr Memelink said he had been told by court staff to put the CIV number ofthese proceedings on the intituling. If he had followed the wrong procedure, he askedthat the Court permit the correct procedure to be followed.Complaints against the administrator[31] Mr Memelink spent some time going through his substantive complaintsagainst the administrator. He also alleged that Mr Dewar, who is the solicitor on recordfor the body corporate, has a conflict of interest because he previously acted forMr Memelink and for the body corporate many years ago. In addition, he said theadministrator had not registered his appointment by way of court order on the relevantbody corporate title with Toitū Te Whenua | Land Information New Zealand (LINZ),as it was required to do under s 141 of the Unit Titles Act.[32] Mr Memelink spent some time in his submissions referring to historic disputeswith the body corporate, including the disputes concerning the levies, amounts owingby the body corporate to Mr Memelink, and the alleged failure of Mr Gambitsis tomaintain the body corporate property, to manage the insurance cover appropriately,and to seek approval for his remuneration from the Court and for various actions. Hesaid that Mr Gambitsis had failed to provide relevant information, failed to convenerequired meetings in order to set the levies according to law and a number of otherfailures. He pointed to the fact that Mr Gambitsis was meant to sort everything outwhen he was appointed administrator. Mr Memelink said Mr Gambitsis was supposedto obtain a Deloitte report to investigate the levies and the amounts due toMr Memelink. He never did this properly.[33] In response to the allegations against the administrator, Mr Pietras said:(a) The administrator had filed a "Change of address of theBody Corporate" recorded as being registered on 11.40 am on4 July 2019 which was 19 months after the court order appointing him.Earlier memorials on the title recorded a court order pursuant to s 141of the Unit Titles Act registered on 21 April 2015 appointingMr Greenwood as the administrator of the body corporate until furtherorder of the Court. Further memorials included court orders registeredon 11 August 2016 and 6 October 2016 recording first the interimappointment of Mr Naylor as administrator and subsequently theappointment of Mr Naylor as administrator.(b) The matters concerning the body corporate levies and disputes betweenMr Memelink and the body corporate had been determined anddisposed of by this Court. The claims had been struck out by Cooke Jin a decision dated 20 April 2021.20 This was upheld by theCourt of Appeal. Cooke J's decision specifically referred to theDeloitte report.21 The matters therefore had been determined by thecourts and Mr Memelink could not seek to relitigate them.(c) Mr Gambitsis was appointed by the Court as administrator. The Courtcould appoint an administrator on such terms and conditions, includingas to remuneration or otherwise, as it thought fit on the application ofthe body corporate, a creditor of the body corporate, or any personhaving a registered interest in a unit. In the absence of any contraryterms and conditions, the remuneration and expenses of theadministrator were to be met out of the operating fund. The Court could20 Memelink v Body Corporate 68792 [2021] NZHC 835 [HC strike out decision], upheld inMemelink v Body Corporate 68792 [2021] NZCA 640 [CA strike out decision].21 At [18].in its discretion or on the application of any other person, being thebody corporate, or a creditor of the body corporate or any person havinga registered interest in a unit, remove or replace the administrator. Noterms had been imposed on the appointment of Mr Gambitsis. Therelevant parties had not sought his removal or replacement.Mr Memelink personally did not own the unit in the body corporate.The trust was the unit holder for the purposes of s 141. Therefore, evenif the application for removal of the administrator had been madefollowing the appropriate procedure, which it had not been, it could notsucceed.(d) While the Court had appointed the administrator, without specificdirections, reports were not to be filed with the Court in the normalcourse, as would be the case with a liquidator for instance.[34] Mr Haig submitted that the provisions of s 141 could be read to the effect thatonce an administrator had been appointed and had lodged with the Registrar a sealedcopy of the order, any subsequent administrators were not required to file such orders.Therefore, the filing of a "change of address of the body corporate", which had beendone by Mr Gambitsis on 4 July 2019, was sufficient to meet the requirements ofs 141.Analysis[35] Mr Memelink's application must be struck out for a number of reasons whichI now deal with.[36] The application is not an interlocutory application in this proceeding. Aninterlocutory application is made to obtain an order or direction of the court for thepurposes of a proceeding or intended proceeding and concerns a matter of procedureor grants some relief ancillary to that claimed in the pleading.22 Mr Memelink'sapplication has not been brought for the purposes of the proceeding here, nor does itrelate to procedure or ancillary relief. It seeks to remove not only the administrator22 High Court Rules 2016, r 1.3 definition of "interlocutory order".but the receivers of the trust. In any case, if otherwise it was an appropriate applicationto make, as a matter of procedure it should have been brought by way of separateapplications or proceedings and properly pleaded.[37] The application is an abuse of process. An application for removal of thereceivers, who incidentally are not parties to this proceeding, was dismissed recentlyby this Court.23 Mr Memelink seeks to relitigate that.[38] While the intituling in the substantive proceedings is styled as Mr Memelinkand Ms Forster as trustees, the allegations in the claim are personal actions and notcarried out with the apparent or ostensible authority of the trust. They are the personalactions of Mr Memelink who tried to interfere with the body corporate operations andunits under the control of the receivers of the trust. The applications to restrain thoseby injunctions were personal to the defendants. The relief sought did not seek toestablish a debt provable in the bankruptcy, so leave to commence and continue theapplications for injunctions would not be necessary.24[39] Any applications by the trustees as unit holders has been stayed by thereceivership orders. The application to remove the administrator is therefore stayedeven if it were brought correctly. Mr Memelink is therefore attempting to circumventthe stay by bringing the application to remove under the umbrella of this proceedingwhich amounts to an abuse of process.[40] Mr Memelink repeated several allegations which he has made in previousproceedings. These criticise, sometimes in venomous terms, solicitors, officials andjudges who have disagreed with him. He repeated the allegations concerning thedisputes over the levies which had been determined by the High Court and theCourt of Appeal.[41] Mr Memelink seeks to draw fine distinctions about what was included in thedeterminations of the courts and what were not. These are without merit. For instance,Mr Memelink said that the decision striking out his claims against the body corporate,23 Decision declining removal of receivers, above n 11. The appeal against the receivership decisionwas also dismissed: CA receivership appeal decision, above n 10.24 Insolvency Act 2006, s 76.which was upheld by the Court of Appeal, did not deal with the fact that Mr Gambitsiswas appointed to do what Mr Memelink wanted and he had not done so. This wasbecause Mr Gambitsis had not instructed Deloitte in the terms that Mr Memelink hadwanted. Deloitte therefore had not done what it should have done in its report or auditof the levies and the body corporate accounts. Mr Memelink's complaint aboutMr Gambitsis not arranging that audit report was referred to by Cooke J in his April2021 decision. That decision struck out the levy claims. The Judge, in referring to thebasis upon which Mr Gambitsis was appointed administrator and Mr Memelink'sarguments put by Mr Memelink's then lawyer Mr Livingstone, said:25[20] In terms of whether the delay is excusable, Mr Livingston relied ontwo matters. First, he indicated that the delay had been with agreement of thedefendant. But as I understand Mr Memelink's affidavit of28 September 2017 the Administrator was appointed as a resolution of theproceeding, not simply a deferral of them. That then leads on toMr Livingston's second main point, which was that the audit report had failedto address the issues that Mr Memelink had raised, and the agreement couldnot prevent him from proceeding with his claims in those circumstances. Butit is very difficult to read paragraphs 5–8 of Mr Memelink's own affidavit ashaving the implied limit to "withdraw the claim" only if certain conditionswere met.[21] Even if I am wrong about that however, Mr Memelink would havehad to have acted very promptly indeed if he was to say that he could advancethis claim notwithstanding his earlier agreement. But he did not do so. Theaudit report in question was provided in October 2018, some two years beforesteps were taken to revive this proceeding.[42] When I pointed out that the judgment of Cooke J had dealt with the audit report,Mr Memelink said the report was not wide enough and therefore Mr Gambitsis hadfailed to meet his obligations which Mr Memelink had relied on when he agreed to theappointment of Mr Gambitsis. That judgment also addresses the issues raised hereagain in relation to the levies and related body corporate claims and how Mr Memelinkhad chosen to deal with them.[43] Mr Memelink relies on repetition of the same allegations in his various claimsand disputes. For instance, Cooke J noted that the allegations about the levies andbody corporate disputes had been at least in part dealt with in the bankruptcy process.His Honour said:2625 HC strike out decision, above n 20, upheld in CA strike out decision, above n 20.26 HC strike out decision, above n 20.[24] Mr Memelink then says that as a result of his bankruptcy, and theliquidation of the associated entity (Lynx Trustees Limited) sinceAugust 2018, the issue of outstanding levies has been conducted in the sphereof the bankruptcy and liquidation. But this again involves a degree of electionby Mr Memelink as to where the disputes would be addressed. Given thisproceeding was conducted by Mr Memelink in his capacity as a trustee, theright to pursue it did not vest in the Official Assignee. As Mr Memelink says,however, he elected to have the issues addressed in the bankruptcy, and he didnot pursue this proceeding. Certain decisions were also then made by theOfficial Assignee in relation to his bankruptcy. Decisions were made as towhether to accept or dispute debts said to be owed to Mr Memelink's creditors,including those arising from the levies. Those matters were addressed in adecision of the Associate Judge on 15 October 2020. InMemelink v Official Assignee Associate Judge Johnston held:[55] In my view, neither the Official Assignee pursuant to s 234nor the Court in the context of an application pursuant to s 238are required to examine in minute detail every levy to ensurethat it was imposed in compliance with all aspects of thelegislation and BC 68792's internal management rules. It issufficient for the Official Assignee or the Court to be satisfiedthat the Body Corporate had a statutory entitlement andresponsibility to levy, has done so and that those levies areprima facie payable.[56] Of course any unit title holder is entitled to challenge thelawfulness of levies, but in my view that is something whichmust be done in a timely way in a separate ordinaryproceeding.[57] The trustee owners here have had years to do that and haveelected not to do so.[61] It turns out that in fact the trustees — or at least Mr Memelink— did initiate such a proceeding in 2016, a proceeding that,for whatever reason, although still extant, is apparentlymoribund.[44] His Honour went on to note that the debt in question had been confirmed in thebankruptcy proceeding and noted that to suggest that Mr Memelink could reargue thesame matters against that background "may well involve an abuse of process."27[45] Mr Memelink sought to blame court staff for the fact that the presentapplication was filed in this proceeding rather than as a separate proceeding. He saidhe had been told by court staff to put the CIV number of these proceedings on theintituling. Even if that were the case, it would be no excuse. It is framed by27 At [25].Mr Memelink as an interlocutory proceeding and is consistent with the claims in hiscounterclaim which was filed after the stay had been ordered. His application for theremoval of Mr Gambitsis would have been caught by the stay against proceedings onbehalf of the trust, so would have not been able to proceed without leave of the Courtin any event. Mr Memelink is an undischarged bankrupt and does not have the consentof the Official Assignee to pursue such an application. He has no standing to pursuethe application as he personally owns no units in the body corporate.[46] Mr Memelink's submissions and documentation were confused, disorganisedand often did not make sense. He filed a 75-page affidavit on the morning of thehearing and a 115-page affidavit the night before. He was entitled to reply to somematerial filed by the body corporate on 4 October 2023. However, most of the materialcontained in the documents that Mr Memelink filed was repetitious and irrelevant. Hewas given a wide margin to make his submissions, both in the documents filed and inhis oral submissions. However, particularly in his oral submissions, he continuallycame back to the same issues of disputes with the body corporate and criticism ofofficials, advisors and judges. Mr Bassett-Burr was of some assistance in summarisingmatters for the Court on Mr Memelink's behalf at Mr Memelink's request. However,Mr Memelink was undeterred.[47] Mr Memelink also pointed out in oral argument that he was a beneficiary, as Iunderstand it a discretionary beneficiary, under the trust. While not fully articulatedby Mr Memelink in this way, nor presaged in his interlocutory application, Iunderstand him to be seeking by this, a way around the restrictions on the trustees anda bankrupt from bringing proceedings. His argument might go that the stay does notapply to him as a beneficiary of the trust, nor is a discretionary interest in a trustproperty his personal property in terms of the Insolvency Act 2006. Therefore, theOfficial Assignee does not have control of the commencement or continuation ofproceedings brought by a discretionary beneficiary. The Court has a supervisoryjurisdiction over trusts, to ensure the trustees administer a trust in accordance with thetrust deed.2828 Erceg v Erceg [2017] NZSC 28, [2017] 1 NZLR 320 at [51].[48] This argument has a number of difficulties. But for the purposes of thisapplication, the fatal difficulty with Mr Memelink's argument is that a discretionarybeneficiary does not have standing to bring an application seeking to remove anadministrator. Only a person having an interest in the unit or other specified personsincluding the body corporate are entitled to do so. In this case the owner of theMemelink units is the trust (in receivership) and no qualifying interest by adiscretionary beneficiary has been established.[49] Mr Memelink emphasised that the appointment of receivers was null and voidbecause Mr Gambitsis had not filed the sealed copy of the order of the High Courtappointing Mr Gambitsis as administrator. It appears Mr Gambitsis went some waytowards meeting this obligation by filing the notice of change of address, which refersto the order of Williams J appointing Mr Gambitsis administrator. Mr Pietrassubmitted that the order must have been lodged with LINZ at the same time as thenotice of change of address, or the Registrar would not have caused the memorial tobe entered on the title concerning the change of address. However, Mr Pietras wasunable to provide evidence of the fact that the order had been lodged with LINZ. Thememorial on the title did not refer to the court order, but rather referred to a "changeof address of the body corporate". The fact that two earlier memorials specificallyreferred to the court orders appointing the predecessors of Mr Gambitsis appears toindicate that the order was not lodged in relation to Mr Gambitsis' appointment. Thefact that Mr Gambitsis did not register with LINZ a sealed order specific to hisappointment was confirmed in a memorandum filed with the Court by counsel for thebody corporate following the hearing.[50] The purpose of the registration is to advise the public of the appointment ofadministrator. I consider it unlikely that the requirement to lodge the sealed ordermaking the appointment would only apply to the first administrator. In my view, itapplies to each administrator. Therefore, while he has gone some way to ensuring thatnotice of his appointment is notified, Mr Gambitsis should have lodged the sealedorder appointing him.[51] However, I do not agree with Mr Memelink that the fact that Mr Gambitsisfailed to lodge a sealed copy with LINZ makes his appointment null and void.Mr Memelink argued that because of that failure to lodge, all actions by Mr Gambitsison behalf of the body corporate were ineffective, including the application by the bodycorporate for the appointment of the receivers.29 I do not agree. The purpose of thelodgement is to notify the public of Mr Gambitsis' appointment as administrator. Thefailure to lodge the order does not invalidate or avoid his appointment. It may be thatin certain situations the lack of knowledge would give rise to grounds for a claim ofby a person who was affected by lack of knowledge of the appointment. That is notthe case here. I also consider the notice of change of address went some way towardremedying the failure to lodge the notice. That was done in July 2019.[52] In any case, the position has now been remedied. I did not consider itappropriate to give a direction at the hearing that the position should be remedied bythe administrator as soon as possible. The obligation was on the administrator andthat issue had arisen as a side wind in this proceeding. Following the hearing,Mr Memelink filed an "urgent memorandum" seeking for the Court to intervene toprevent or rescind the registration of Mr Gambitsis as administrator. I issued a minutethe following day recording my view that there were no grounds for making such anorder, even if it had been sought following the appropriate court procedure. In anycase, counsel for the body corporate has now filed a memorandum, confirming that acorrect order has now been sealed and lodged with LINZ. Despite this, Mr Memelinkcontinues to challenge the appointment of Mr Gambitsis on this point, in furthersubmissions filed. However, I consider the fact that the sealed order has now beenlodged adequately resolves the issue.Conclusion[53] The interlocutory application seeking Mr Gambitsis' removal cannot proceed.[54] All property of the trust is under the control of the receivers, to the exclusionof Mr Memelink and Ms Forster. All proceedings by or against the trust are stayedexcept with the receivers' consent or by order of the Court. The receivers do notconsent to Mr Memelink and Ms Forster pursuing an application whether bycounterclaim or otherwise on behalf of the trust in this proceeding. Neither has the29 Resulting in the receivership decision, above n 7.Court made any such order that the proceeding may be continued. To the extent thecounterclaim seeks relief against the body corporate on the basis of the trust'sownership of units in the body corporate, it cannot therefore proceed.[55] Neither Mr Bassett-Burr not Philco are parties to this proceeding. They haveno standing.[56] Accordingly, the application by Mr Memelink and Ms Foster to, among otherthings, remove the administrator and any applications related to that are dismissedpursuant to r 15.1 of the High Court Rules.Timetable[57] It may be that the administrator does not wish to pursue the proceeding anyfurther in which case it should be disposed of appropriately. Otherwise the matter willbe put in the call over list by the Registrar and the usual memoranda should be filed atleast five working days before the call to timetable the substantive matter to a hearing.Costs[58] If any issue as to costs arises, a memorandum seeking costs together withsubmissions should be filed and served on or before five days of the date of thisjudgment. Any reply should be filed and served within a further three days and anyresponse within a further three days.____________________Grice JSolicitors:Duncan Cotterill, WellingtonThomas Dewar Sziranyi Letts, Lower HuttGibson Sheat, Wellington