HARRY MEMELINK v COLLINS & MAY LAW [2022] NZSC 130

HARRY MEMELINK v COLLINS & MAY LAW [2022] NZSC 130 [10 November 2022]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 74/2022[2022] NZSC 130BETWEEN HARRY MEMELINKApplicantAND COLLINS & MAY LAWRespondentCourt: O'Regan, Williams and Kós JJCounsel: B J Norling and A Cherkashina for ApplicantH M Twomey for RespondentJudgment: 10 November 2022JUDGMENT OF THE COURTA The application for an extension of time to apply for leaveto appeal is dismissed.B There is no order as to costs.____________________________________________________________________REASONS[1] The applicant, Mr Memelink, seeks an extension of time to apply for leave toappeal (and, if the extension is given, applies for leave to appeal) against the decisionof the Court of Appeal.1 The decision of the Court of Appeal was delivered on25 March 2020, so the application was filed in this Court more than two years out oftime.[2] The Court of Appeal decision dealt with an application by Mr Memelink foran extension of time to appeal to the Court of Appeal against the High Court judgment1 Memelink v Collins & May Law [2020] NZCA 62 (Cooper and Wild JJ) [CA judgment].adjudicating him bankrupt.2 Mr Memelink's application to the Court of Appeal wasabout a year out of time.[3] The Associate Judge who adjudicated Mr Memelink bankrupt delivered hisreasons for doing so on the day after the adjudication decision. In those reasons hereferred to the fact that Mr Memelink had filed a proposal to creditors under Subpart 2of Part 5 of the Insolvency Act 2006, which Mr Memelink had filed two working daysbefore the adjudication hearing. Mr Memelink had not alerted his creditors to thatproposal. He sought an adjournment of the adjudication hearing to enable the proposalto be put to the creditors for their vote, but this was opposed by the creditorsrepresented at the adjudication hearing and the Associate Judge refused to adjourn thehearing. The Associate Judge noted that on Mr Memelink's own analysis, his assetswere exceeded by his liabilities by more than $5,500,000.[4] Mr Memelink did not immediately appeal to the Court of Appeal against thedecision adjudicating him bankrupt, but instead applied to the High Court for anannulment of his adjudication. That application was dismissed on 14 June 2019.3 Theapplication for an extension of time to appeal to the Court of Appeal against theadjudication decision was filed about three months after the decision of the High Courtrefusing the annulment.[5] In its decision, the Court of Appeal applied the principles set out in this Court'sdecision in Almond v Read.4 In Almond v Read, this Court set out five factors that arelikely to require consideration when the Court is determining whether to extend thetime for filing of an appeal.5 In the present case, the Court of Appeal evaluated eachof those factors.6 The Court then went on to consider the merits of Mr Memelink'sproposed appeal to the Court of Appeal, concluding that the grounds of appeal werewithout merit.72 Re Memelink HC Wellington CIV-2018-485-363, 28 August 2018 (Associate Judge Johnston).3 Memelink v Official Assignee [2019] NZHC 1357 (Associate Judge Lester).4 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.5 At [38].6 CA judgment, above n 1, at [10]–[27].7 At [39].[6] The application to this Court was accompanied by a lengthy affidavit byMr Memelink, as was his application to the Court of Appeal. We have considered thepoints made in these affidavits. Mr Memelink's explanation for the delay in makinghis application to this Court largely focuses on the misconduct of his former lawyer,who has been the subject of disciplinary proceedings by the New Zealand Law Society| Te Kāhui Ture o Aotearoa.[7] However, this does not fully explain a delay of more than two years since theCourt of Appeal decision was delivered. As noted earlier, the application to the Courtof Appeal was, itself, about a year out of time. So the net effect of these delays is thatMr Memelink is now seeking to challenge a decision of the High Court adjudicatinghim bankrupt that was made over four years ago.[8] If we were to extend time and give leave to appeal, we would be consideringonly the Court of Appeal's refusal of an extension of time to appeal to that Court, notthe merits of the adjudication. As noted earlier, the Court of Appeal applied theprinciples set out by this Court in Almond v Read, so no point of public importance asto the way in which that Court addresses applications for extensions of time arises.8Nor do we see any basis for criticism of the way in which the Court of Appeal appliedthe factors set out by this Court in Almond v Read such as to give rise to a risk of amiscarriage of justice.9[9] In short, we do not accept that the delay in bringing the application to this Courtis adequately explained. And even if it were, we do not see any proper basis on whichleave to appeal could be granted, applying the criteria set out in s 74 of theSenior Courts Act 2016.[10] Accordingly, the application for an extension of time to apply for leave toappeal is dismissed.8 Senior Courts Act 2016, s 74(2)(a).9 Section 74(2)(b).[11] We make no award of costs.Solicitors:Norling Law Ltd, Auckland for ApplicantRobertsons, Auckland for Respondent