Underlying High Court ruling prevents trustee from starting, continuing certain proceedings
The New Zealand Supreme Court has denied a trustee’s application for leave to appeal that appeared to challenge a High Court judge’s extended restraint order under s 166(2) of the Senior Courts Act 2016 in a body corporate’s favour.
The applicant/appellant was a trustee of a family trust, which owned over half of the units in a Wellington commercial body corporate development.
Beginning around 2005, the trust and the applicant have had a dispute, primarily about levies set by the body corporate, with the body corporate or its administrator.
Since then, the trust has been in receivership. Meanwhile, the applicant has been bankrupt since an adjudication in 2018.
In a 21 December 2023 extended order under s 166(2), Justice Grice of the High Court restrained the applicant from commencing or continuing any proceedings regarding the body corporate’s conduct or affairs for three years.
The judge found that the applicant had brought proceedings without merit.
On 23 January 2024, the applicant appealed. His notice of appeal was deemed abandoned for failure to timely file a case on appeal.
On 28 January 2025, the applicant applied for an extension of time to seek a hearing date and to file his appeal case under r 43(2) of the Court of Appeal (Civil) Rules 2005. On 11 April 2025 and 19 May 2025, the applicant applied to present fresh evidence.
On 18 March 2026, in Memelink v Body Corporate 68792 [2026] NZCA 72, the Court of Appeal denied the applications for the applicant to extend the time to pursue a hearing date, to file a case on appeal, and to submit fresh evidence.
The applicant applied to recall the appeal court’s 18 March 2026 decision. He referred to a successful injunction application that had restrained him from interfering with the body corporate’s insurance arrangements.
On 3 June 2026, in Memelink v Body Corporate 68792 [2026] NZCA 223, the Court of Appeal rejected the recall application for lack of merit.
The appeal court determined that the applicant, who could have raised the issue in his recall application when he brought his extension application, fell short of establishing a “very special reason” that justice would require the recall.
The appeal court explained that the s 166 order relied on two proceedings – not including the injunction proceeding – that the High Court judge said totally lacked merit.
Before the Supreme Court, the applicant applied for leave to appeal against the Court of Appeal’s 18 March 2026 judgment.
On 28 August 2026, in Memelink v Body Corporate 68792 [2026] NZSC 118, the Supreme Court declined the leave application for failure to meet the relevant criteria.
The Supreme Court saw no issue of general or public importance, no substantial miscarriage of justice, no exceptional circumstances warranting leave, and no need to hear the proposed appeal in the interests of justice.
The Supreme Court ruled that the leave application challenged Justice Grice’s extended restraint order, rather than the substance of the appeal court’s refusal to extend time.
“Whether regarded as an attempted leapfrog application from the High Court, or an application from the Court of Appeal’s refusal to extend time, the criteria for leave to appeal are not met,” stated the Supreme Court’s reasons.
According to the Supreme Court, the challenge to Justice Grice’s judgment relied on an irredeemably flawed proposition regarding the use and status of the injunction proceeding, which was not one of the two underlying meritless proceedings.
The Supreme Court ordered the applicant to pay the body corporate costs of $2,500.
Here are some recent decisions relating to restructuring and insolvency.
Regardless of the misconduct and unsatisfactory conduct findings against his former solicitor, the Supreme Court of New Zealand made a 17 August 2026 decision denying a man’s second recall application arising from the High Court’s bankruptcy order against him in August 2018.
The High Court of New Zealand issued a 24 July 2026 order placing a parent company and five of its key subsidiaries into liquidation upon finding that the Rangiora-based group was insolvent and running an unsustainable business model.
In proceedings originating from the High Court’s assessment of a lawyer’s legal services on a quantum meruit basis, the Court of Appeal of New Zealand made a 3 July 2026 decision denying the client’s interlocutory application that sought various orders, directions, and additional evidence.
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