THE TRUSTEES OF THE LINK TRUST NO 1 v BODY CORPORATE 68792 [2022] NZHC 151

THE TRUSTEES OF THE LINK TRUST NO 1 v BODY CORPORATE 68792 [2022] NZHC 151 [10 February 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-000378[2022] NZHC 151UNDER Section 119 of the Unit Titles Act 2010 and rules 20.08 and 20.09 of the High Court Rules 2016IN THE MATTER of an appeal against a decision of the Tenancy TribunalBETWEEN THE TRUSTEES OF THE LINK TRUST NO 1, BEING HARRY MEMELINK AND CISCA JOHNETTE FORSTERAppellantAND BODY CORPORATE 68792RespondentHearing: 9 February 2022Appearances: H Memelink in person A O'Connor for the RespondentJudgment: 10 February 2022JUDGMENT OF COOKE J[1] By notice of appeal dated 12 July 2021 Mr Memelink appeals against a decision of the District Court dated 14 June 2021. 1 In that judgment Judge Tompkins dismissed an appeal from a decision of the Tenancy Tribunal dated 21 December 2019. 2[2] The underlying proceedings concern matters that Mr Memelink has been raising for some time in proceedings before the Tenancy Tribunal, the District Court,1 Memelink v Body Corporate 68792 [2021] NZDC 11664.2 Memelink v Body Corporate 68792 [2019] NZTT Wellington 900347 (30 January 2020).the High Court, and the Court of Appeal. In particular he makes a number of claims in relation to the procedures of Body Corporate 68792 (the Body Corporate), particularly in 2014, including that he should have been properly recognised as having been elected as the Chair of the Body Corporate at that time.The course of the hearing of the appeal[3] It is appropriate to record the steps that have given rise to my dealing with this appeal effectively on the papers.[4] The appeal was set down for hearing at 10 am on Tuesday 8 February 2022. In preparation for that hearing the parties were advised of the procedures for court hearings in light of the Covid-19 measures, including that the hearing would proceed by remote means. Mr Memelink then raised the limitations with his technology at home, and also his ill health, and he sought an adjournment. This was opposed by the respondent. By minute dated 4 February 2022 I declined the adjournment on the basis that Court time was a scarce resource and it was not possible to reschedule other matters to use the time at that late stage, and that Mr Memelink as a regular user of Court resources could be expected to have made arrangements to prepare for upcoming fixtures, such as by arranging counsel. I indicated, however, that as an exception to the Court's practices Mr Memelink or his counsel could appear in person (and that counsel for the respondents could do so as well) provided that certain Covid- 19 protective measures outlined in my minute were taken.[5] By email dated 7 February Mr Memelink indicated he was too unwell to present his submissions at the hearing, and he asked that Mr Bassett-Burr appear on his behalf to do so. I responded to that request by indicating that I did not understand Mr Bassett-Burr to be a practising solicitor and that he did not have leave to present submissions on Mr Memelink's behalf, and that if Mr Memelink was not well enough to present oral submissions I would deal with the appeal based on the written submissions which he had filed. Mr Bassett-Burr responded that Mr Memelink was definitely too ill to attend and that he would send through all material to make sure that the Court had all written material for me to deal with the appeal on the papers.[6] The scheduled remote hearing was nevertheless called. Mr O'Connor was able to appear for the respondent. I indicated that I proposed to deal with the appeal on the papers. I nevertheless asked him to respond one matter, which was an issue raised in Mr Memelink's first set of written submissions — namely that either Justice Clarke or Associate Judge Smith had indicated that the issue concerning Mr Memelink's position as Chair of the Body Corporate was something that was more properly addressed by the Tenancy Tribunal and not the High Court proceedings Mr Memelink had advanced. Mr O'Connor indicated that that occurred before he had been instructed, but he understood that there was a decision of Smith AJ to this effect, effectively confirming Mr Memelink's submission. I asked him to make enquiries and to provide a copy of the decision to me but he was not able to locate it subsequently.[7] I am satisfied that there is no injustice in my dealing with the appeal on the papers in the above circumstances. I accept that Mr Memelink may have been too unwell to meaningfully participate. But there are other considerations to take into account, including the position of the respondent and the body corporate members. Proceedings between Mr Memelink and the Body Corporate that have existed for some time. As I will explain in greater detail below Mr Memelink's High Court proceedings against the same parties have been struck out for want of prosecution, including because of the prejudice delay has caused to the defendants. I am also satisfied from the written submissions filed by Mr Memelink that all the issues he wishes to raise have been properly explained in those submissions.[8] I will proceed to deal with the appeal on that basis.The appeal[9] As a consequence of s 171 of the Unit Titles Act 2010 the Tenancy Tribunal has jurisdiction to hear and determine all disputes arising between Body Corporate parties specified in s 171(2). Under ss 172 and 173 the District Court and High Court have jurisdiction if the dispute involves more than $50,000 or $350,000 respectively. As a consequence of s 176 of the Unit Titles Act, pt 3 of the Residential Tenancies Act 1986 (the Act) applies to the hearing and determination of such a dispute by the Tribunal.[10] Under s 117 of the Act there is an appeal from decisions of the Tribunal to the District Court. Under s 119 there is an appeal from the District Court to the High Court on the basis that the decision of the District Court is erroneous in point of law.[11] The decision of the Tenancy Tribunal in the present case dismissed Mr Memelink's claims in relation to the procedures followed by the Body Corporate in 2014, particularly a claim he was properly elected as Chair but was not treated as such. In dismissing the claim (and subsequently in declining to re-hear the claim)3 the Tribunal relied on a number of interrelated factors. On appeal to the District Court the District Court held: 4In addition, and this is the overriding and determinative consideration, the matters now pursued by Mr Memelink both before the Tribunal in relation to the decision on appeal and before this court are moot. The most convenient summary of the reasons for that conclusion is contained in the Tribunal's decision itself at paragraph 16 of the decision, in the eighth bullet point; which I gratefully adopt:Even if Mr Memelink is correct that the voting procedure was flawed (and I make no finding on that), events have overtaken his application. He is bankrupt. His bankruptcy has not been annulled. The Body Corporate is insolvent. Links Trustees Limited has been placed in liquidation. In effect there is no functioning Body Corporate for the Tribunal to make any direction to. The Body Corporate is in the hands of the administrator by direction of the High Court. It is simply not possible to "wind back the clock", and to pretend that these later insolvency actions have not occurred, or that the High Court decisions have not been made. Put simply, Mr Memelink cannot be the Body Corporate chairman because the Body Corporate is no longer functioning. He cannot achieve what he wants to achieve by having the Tribunal issue a declaration that he was entitled to be the chairman following the meeting on 7 November 2014.Essentially Mr Memelink is seeking the declaration as a way to relitigate matters arising from what he says is financial mismanagement result in losses of around $500,000. His motivation is to breathe life into the litigation of those alleged losses. Aside from the fact that the amount of his dispute well exceeds the Tribunal's jurisdiction, the substantive claim has been considered and rejected by the High Court. It is artificial to seek a declaration from the Tribunal about the voting for and appointment of a chairman when the real dispute concerns a civil claim that has been litigated in the High Court. To use a medical simile Mr Memelink is trying to breathe life into a body (a corporate one) that is almost dead and well beyond resuscitation. The declaration he seeks is not one the Tribunal can make nor would it serve any purpose.3 Memelink v Body Corporate 68792, above n 2.4 Memelink v Body Corporate 68792, above n 1, at [13]–[16].I entirely agree with that approach. In his written submissions today, Mr Memelink set out what he termed "several reasons for seeking the declaration", they being that he has a "potential" claim, that the question he raises relating to the 2014 vote "arises from time to lime in various related proceedings and determining the question would avoid future argument", and that the declaration he seeks would both set a general precedent and would "by implication" enable him to challenge various resolutions made between 2014 and the administration. Lastly, Mr Memelink notes that the declaration would "bring him a degree of peace and satisfaction."Given the factual and legal events that have transpired since the Body Corporate was put into administration, none of the several reasons advanced by Mr Memelink are either of any or of sufficient substance. The declaration he seeks would be to no effect. For this court now to make that declaration would amount to an abuse of the process of the Court by Mr Memelink.Under 118 this Court has various alternative options to it on this appeal. But in my view, given the essential correctness of the decision under appeal and for the reasons set out in that decision, it is important that this aspect of Mr Memelink's multifaceted litigation relating to this Body Corporate should be brought to an end now.Key issue on appeal[12] On appeal Mr Memelink has raised a series of matters in his notice of appeal and his two sets of written submissions. In his brief written submissions in response Mr O'Connor argues that he is unable to discern a question of law that is the basis of Mr Memelink's appeal and that the appeal should be dismissed on this basis.[13] I do not accept Mr O'Connor's submission. It seems to me that Mr Memelink's written submissions raise a number of points of law that he advances on appeal. I will address each of the points he raises, but there is one in particular that seems to me to be at the heart of Mr Memelink's appeal. That is that the Tribunal did not address his arguments on their merits. Rather it has dismissed his claims on procedural grounds, including procedural grounds which he says are misconceived. He argues the District Court erred in upholding that decision.[14] This involves a question of law which is properly pursued by way of appeal to this Court — is it consistent with the Tribunal's role to reject a claim on the basis that it is moot/of no practical significance/an abuse of process? If so was that jurisdiction properly exercised in the present case? It is this essential conclusion that the District Court has upheld on appeal, and whether that is an appropriate approach is properly addressed in this Court.Assessment[15] It is true that the Tribunal did not address Mr Memelink's detailed complaints about the procedures followed by the Body Corporate in 2014, and the reasons why he should have been recognised as having been properly elected as Chair. That is apparent from the Tribunal's reasoning relied upon by the District Court I have quoted above. But that does not mean that the Tribunal did not address Mr Memelink's claims on their merits. As the Tenancy Tribunal adjudicator confirmed in the decision dismissing the application for a re-hearing he did not dismiss Mr Memelink's claim on jurisdictional grounds. Rather he considered the arguments and evidence on their merits. 5[16] Those involved in Body Corporates are able to access the Tribunal's dispute resolution procedures to ensure that they have a less expensive and streamlined system available to them rather than having such disputes resolved by the ordinary courts. The jurisdiction exists to ensure practical justice to those involved in such disputes. The manner in which it undertakes that role should be directed to that end. This is confirmed by s 85 of the Act which provides:85 Manner in which jurisdiction is to be exercised(1) Subject to the provisions of this Act and of any regulations made under this Act, the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which this Act applies.(2) The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.[17] Section 176 of the Unit Titles Act says that this provision, along with the other provisions in pt 3 of the Act, apply with "all necessary modifications". So the reference to the "resolution of disputes between landlords and tenants of residential premises" can be taken to be a reference to the disputes between the Body Corporate participants specified in s 171(1)–(2) of the Unit Titles Act.5 Memelink v Body Corporate 68792, above n 2, at [10].[18] Section 85 of the Act has both procedural and substantive content. It means that the Tribunal is required to exercise its jurisdiction to ensure the fair and expeditious resolution of such disputes in accordance with the general principles of law and substantial merits and justice of the case.6 In the present case it concluded that the matters raised by Mr Memelink had been overtaken by other events, and that they had been the subject of extensive litigation between the parties in the High Court which had been determined against Mr Memelink. It held that the declaration sought would not serve any purpose. The District Court summarised this as a finding that the issues raised by Mr Memelink were moot and amounted to an abuse of process.[19] Those conclusions seem to me to be correct for two essential reasons.[20] First, the Tribunal proceeded in the manner required of it in dismissing a claim on this basis because it no longer had any practical significance for the participants. It is not the role of the Tribunal to make declarations on matters that have no such significance. Rather it must address disputes between them, and it must do so in light of both the principles of law and the substantial merits and justice of the case. If upholding a claim is not consistent with the substantial merits and justice of a case, and it does not resolve a real and practical dispute between the parties, then it would not be appropriate for the Tribunal to grant the relief sought. To do so would be unfair and unjust to the other parties to the suggested dispute.[21] I also conclude that the Tribunal's decision was properly made in the present case. As both the Tribunal and the District Court have held the events that have transpired in the seven years since the 2014 meeting mean that there is no practical utility in the Tribunal now seeking to rule on that meeting. The Body Corporate is essentially insolvent and an administrator has been appointed. Mr Memelink is bankrupt. If the Tribunal were to declare that he had been properly elected Chair more than seven years ago that would not make him the Chair now. Such a declaration would have no utility. To expect the respondents to engage with re-litigating such an historic matter would be unjust, and procedurally unfair.6 See Welsh v Housing New Zealand, HC Wellington, AP35/2000, 9 March 2001 at [29]–[30].[22] Moreover Mr Memelink's contentions are part of his wider complaints which have been the subject to his High Court proceedings. I struck out those proceedings by judgment dated 20 April 2021 under r 15.2 of the High Court Rules 2016 on the basis that there had been an inordinate delay in the progress of the proceeding by Mr Memelink, the delay was inexcusable, the defendants had suffered serious prejudice as a consequence, and that it was not in the overall interests of justice to allow the case to proceed. 7 By judgment dated 2 December 2021 the Court of Appeal dismissed an appeal from that judgment.8 I note that the first paragraph of the Court of Appeal's judgment refers to Mr Memelink's contention that he had been elected the Chair of the Body Corporate at the 2014 meeting. So to the extent that Mr Memelink wished to use a decision of the Tribunal to re-open these issues that avenue has effectively been removed.[23] As the District Court has held the declaration that Mr Memelink sought could have no practical effect. I agree with the Judge's conclusion that any attempt to make such a declaration would effectively amount to an abuse of process, and that the Tribunal was right not to grant the relief Mr Memelink sought in those circumstances.[24] For these reasons I conclude that the Tribunal properly exercised its jurisdiction in dismissing the claim, and that there was no error of law in the District Court's decision upholding the Tribunal's decision.Other issues raised on appeal[25] Mr Memelink has raised other points on appeal which I accept could be classified as errors of law were they made out. It is accordingly appropriate for me to address each of those matters notwithstanding that there is a degree of repetition in doing so.[26] Mr Memelink argues that the Tribunal erred in concluding that he had no standing to appear as he was bankrupt and a discretionary beneficiary of the Link No 1 Trust. In his supplementary submissions he referred to a recent decision of this Court7 Memelink v Body Corporate 68792 [2021] NZHC 835.8 Memelink v Body Corporate 68792 [2021] NZCA 640.indicating that Mr Memelink's bankruptcy did not prevent him pursuing proceedings as a trustee.[27] As the Court of Appeal confirmed Mr Memelink's bankruptcy does not prevent him pursuing proceedings as a trustee. 9 There was accordingly no technical barrier to Mr Memelink pursuing his claim in the Tribunal. But the Tribunal's decision is not based on this factor — the Tribunal only said that he "probably" had no standing to appear for such reasons. 10 Its ultimate conclusion was not based on this point. It was based on the lack of utility in what Mr Memelink was seeking. And it is also clear that the District Court did not rely on this conclusion — its conclusion was that the claim was moot and an abuse of process. The District Court Judge did not rely on any lack of standing by Mr Memelink to bring the proceedings. Accordingly any error by the Tribunal had no impact on the conclusions that formed the basis for its decision. This ground of appeal is not made out.[28] Mr Memelink argued that the Tribunal erred in law by finding that the principle of res judicata meant that it could not pursue the issue of voting rights given that issue had been decided by the High Court. He argued that that could not be so because the issue of voting rights had never been determined on its merits in the High Court.[29] I do not accept this argument for two reasons. First the Tribunal and the District Court did not apply res judicata. The fact that the High Court had dismissed Mr Memelink's claims was simply one of the factors leading to its finding that the proceedings had no practical utility. Secondly, the High Court has concluded that the High Court proceeding cannot be continued because of inexcusable delay. The Court of Appeal has dismissed an appeal from this decision. There was no error in the Tribunal and the District Court concluding that the narrower dispute before the Tribunal had no practical utility given that the other claims have been struck out.[30] Mr Memelink further argued that the Tribunal erred in concluding that an agreement entered during the course of the High Court proceedings to withdraw those9 Memelink v Body Corporate 68792, above n 8, at [37].10 Memelink v Body Corporate 68792, above n 2, at [16].proceedings could be construed as a general agreement as the agreement was actually more limited.[31] I do not accept this argument for similar reasons. First the High Court has not accepted this characterisation of the agreement that Mr Memelink advanced. 11 The Tribunal has reached a similar conclusion, and I agree with it. 12 In any event this was not the conclusion that the District Court Judge upheld as the reason why the appeal from the Tribunal's decision should be dismissed. Again the District Court decision was based on the independent conclusion that the proceedings had no practical utility, and were effectively an abuse of process.[32] Mr Memelink further argued that the Tribunal erred in law in finding that the matter he asked the Tribunal to address had consequences for the wider dispute that was beyond the Tribunal's jurisdiction. He argued that his complaint to the Tribunal was "intentionally framed by the applicants to be specific and narrow". He argued that this Court had directed that the matter he advanced should be determined by the Tribunal. He further argued that it was not the Tribunal's function to contemplate the possible consequences of its decision.[33] I proceed on the basis that the High Court has found or directed the matter that Mr Memelink raised was for the Tenancy Tribunal to determine (at least for the purpose of this argument). 13 But I nevertheless do not accept Mr Memelink's arguments. As I have explained, it is the role of the Tribunal to determine disputes in accordance with the substantive justice between the parties. The consequences of orders sought before the Tribunal are clearly matters that it should address. The applicant cannot avoid those implications by formulating a narrow issue, and then arguing that any consequences of the Tribunal's decision are irrelevant. That is inconsistent with the very approach the Tribunal is supposed to follow.11 Memelink v Body Corporate 68792, above n 7, at [16]–[18].12 Memelink v Body Corporate 68792, above n 2, at [16] fourth and fifth bullet points.13 There are a series of decisions by the Associate Judge that may be taken to have so decided – see, for example, Body Corporate 81012 v Memelink [2016] NZHC 1008 at [23].[34] Mr Memelink further argued that the Tribunal and District Court had erred in finding that the broader dispute between Mr Memelink and the Body Corporate had been conclusively dealt with by the High Court, arguing that that had never happened.[35] This argument mischaracterises this Court's conclusion upheld by the Court of Appeal. The Court concluded that there had been inexcusable and inordinate delay in the prosecution of the broader disputes, that this had caused prejudice to the Body Corporate, and it was not in the interests of justice to allow the proceedings to continue. Those matters were properly taken into account by the Tribunal given that the issue it was asked to address was interlinked with these broader matters. The finding that it was not in the interests of justice to allow Mr Memelink to pursue these arguments was a significant finding that was appropriately taken into account. Mr Memelink also argued that his motivations in making the application were not relevant considerations, and the Tribunal had erred in finding that they were. For similar reasons I reject this. The consequences of the decision to be made by the Tribunal are relevant considerations and properly taken into account.[36] Finally Mr Memelink argued that the Tribunal had erred in concluding that its declarations would be of no practical effect. This appears to be a reformulation argument that potential consequences were not a valid reason not to address points. I have already addressed these matters above.[37] In his supplementary written submissions Mr Memelink addresses some further matters. I do not apprehend there are potential questions of law raised in those written submissions that I have not already addressed above.Conclusion[38] For these reasons the appeal is dismissed. The respondent will likely be entitled to costs. My preliminary view is that costs should be awarded to it on a 2B basis. If costs cannot be agreed I will receive memoranda.Cooke J