Chen v Carter Hc Ak

• Jurisdiction: New Zealand
• Judge: COLLINS J
• Judgment Date: 03 May 2013
• Neutral Citation: [2013] NZHC 869
• Docket Number: CIV-2013-404-002046
• Court: High Court
• Date: 03 May 2013

BETWEEN

Under the Defamation Act 1992

In the Matter of an interlocutory application under Rules 7.23 and 7.53 of the High Court Rules

John Chung Ching Chen

Plaintiff

and

John Norman Carter

First Defendant

and

Roger Bernard Apperley

Second Defendant

and

David Lloyd Burgess

Third Defendant

and

Peter Francis

Fourth Defendant

and

John Leonard Morris

Fifth Defendant

and

Sally Leonard Synnott

Sixth Defendant

and

Crockers Body Corporate Management Limited

Seventh Defendant

and

Rochelle Williams

Eighth Defendant

[2013] NZHC 869

CIV-2013-404-002046

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Application under r7.23 High Court Rules (“HCR”) (application without notice) and r7.53 HCR (application for injunction) for an interim injunction to restrain the defendants (who were members of the management committee of the Body Corporate of the Metropolis apartment complex in Auckland and the Body Corporate) from distributing allegedly defamatory material — parties were owners of units in the Metropolis Building in Auckland — parties became involved in a dispute concerning body corporate levies and the management of the building — plaintiff wished to nominate himself through his building management company to manage the complex — defendants distributed case summaries of previous litigation involving the company and described plaintiff as “litigious and obdurate” in response to communications the plaintiff had circulated to owners alleging the Body Corporate had abused its powers and was involved in fiscal mismanagement — defendants relied on the defences of qualified privilege and truth — whether injunction should be granted

Counsel:

J G Miles QC with A J Lloyd and D M Cross for Plaintiff

A S McIntyre and M J Francis for Defendants

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 12 noon on the 3rd day of May 2013.

RESERVED JUDGMENT OF COLLINS J

Introduction

1 On 23 April 2013 I heard an application for an interim injunction in which Mr Chen sought orders prohibiting the defendants from repeating what he pleads are defamatory statements made about him.

2 Soon after the conclusion of the hearing I issued a judgment in which I very briefly said:

• (1) that an ex parte interim injunction issued by Keane J on 19 April 2013 was set aside;

• (2) that Mr Chen's application for an interim injunction was dismissed; and

• (3) that my reasons for this judgment would be delivered as soon as possible.

3 I was required to make my decision and issue a judgment on 23 April 2013 because a meeting of affected persons was scheduled to commence approximately three hours after the conclusion of the oral hearing. The parties needed to know before that meeting whether or not the existing ex parte interim injunction was to continue, be varied, or be set aside.

Context

4 Mr Chen seeks an interim injunction against the first to sixth defendants who are members of the management committee of the Body Corporate of the Metropolis apartment complex in Auckland and the seventh and eighth defendants, who are the Body Corporate secretariat and an employee of the secretariat. For convenience I will refer to all defendants as the Body Corporate committee.

5 On 19 April 2013 Mr Chen applied for an ex parte interim injunction to prevent the Body Corporate committee from further publishing a communication which comprised:

• (1) a three-page email dated 12 April 2013 from the Body Corporate committee to all owners of the Metropolis Body Corporate (the email), which I have annexed to this judgment (Annexure A);

• (2) a two-page attachment to the email containing a “summary” of cases in which Mr Chen had been involved (case summary), which I have also annexed to this judgment (Annexure B);

• (3) a three-page attachment to the email comprising part of a deed of lease;

• (4) a one-page attachment to the email being a list of seven cases from the judicial decisions on-line database;

• (5) a one-page attachment to the email being the front page of a judgment of the Court of Appeal involving Theta Management Ltd (Theta), a property management/landlord company owned and managed by Mr Chen;

• (6) a 12-page attachment to the email being a decision of the Tenancy Tribunal concerning a case relating to Theta.

6 On the evening of 19 April 2013, Keane J directed the application for an interim injunction be called in the Duty Judge List on 22 April 2013 and that Mr Chen's application for an injunction proceed on notice. In the meantime, his Honour granted Mr Chen's application for an interim injunction preventing the Body Corporate committee from distributing further copies of all of the documents described in [5] above.

7 When the case was called before Katz J on 22 April 2013 in the Duty Judge List she expressed concern at the breadth of the orders sought by Mr Chen 1. Katz J set the application for an injunction down for hearing before me on 23 April 2013, on the basis that it would be heard as an inter partes case. The Body Corporate committee has filed a notice of opposition and an affidavit in opposition which was sworn by the first defendant, who is an experienced lawyer and member of the Body Corporate committee. In his affidavit Mr Carter explains that he was the author of the case summary which is Annexure B to this judgment. Mr Carter also explains that the Body Corporate committee will be defending Mr Chen's defamation proceeding on the grounds that the statements he complains of are true and covered by qualified privilege.

8 When the case was called before me, Mr Miles QC, who had just been briefed to act for Mr Chen, very properly adopted a more realistic approach to the scope of any injunction. Mr Miles focused upon the following three portions of the email and case summary:

• (1) This will enable you to form a view as to whether the litigious and obdurate flavour of Mr Chen's management style is consistent with what the Metropolis community wants for its building, taking into account Mr Chen's nomination of himself for the committee.

• (2) Based on Mr Chen's history elsewhere, the issue of the proceedings can only be seen as the beginning of a divisive and litigious management style. If such a style is allowed to become entrenched, the only possible result is to turn the Metropolis into an undesirable address plagued by disputes with the end result being an overall reduction in the quality of life in the building. If this occurs, the likely negative impact on values is obvious.

• (3) Theta's management style and conduct, branded as illegal twice by a District Court Judge and then by two High Court Judges and three Judges of the Court of Appeal over a period of four years is a matter for your consideration.

9 Ultimately, Mr Miles invited me to issue an interim injunction preventing the Body Corporate committee from making any further statements that Mr Chen has a

history of being obdurate and or litigious. Mr Miles suggested that if I issued an injunction to this effect it would expire at the conclusion of the Annual General Meeting of the Body Corporate for the Metropolis scheduled for 1 May 2013. During the course of his submissions, Mr Miles also informed me that although Mr Chen was not reluctant to proceed to trial, in Mr Miles’ assessment this was not a case that was likely to proceed to a substantive hearing. This observation from Mr Miles carries significant weight, particularly because of Mr Miles’ status as one of New Zealand's most experienced defamation lawyers

Background

10 The Metropolis is a prestigious Auckland apartment complex located at 1 Courthouse Lane in central Auckland. There are 412 apartments and commercial units in the Metropolis. Mr Chen had lived in one of the apartments since 2004. He purchased one of the apartments and thereby became a member of the Body Corporate in July 2012.

11 Earlier this year Mr Chen and a group who own 65 of the units in the Body Corporate became concerned about aspects of the management of the Body Corporate. I will refer to these unit owners as the “concerned owners group”. The concerned owners group instructed Minter Ellison Rudd Watts to write to the Body Corporate committee on 14 March 2013. The concerned owners group appeared to be particularly aggrieved that the Body Corporate committee had resolved to extend the building manager's contract for a further five year term. The building manager is the third defendant in this proceeding. In its letter Minter Ellison Rudd Watts set out a number of demands of the Body Corporate committee and conveyed the concerned owners group's views in no uncertain terms. For example, the letter says:

… our clients’ position is that the [Body Corporate] committee and its members have acted without authority and that they (rather than the Body Corporate) will be personally liable for the consequences of such.

Minter Ellison Rudd Watts sought a response to its letter by 5.00 pm on 22 March 2013.

12 On 15 March 2013 the seventh defendant (the Body Corporate's secretary) wrote to Minter Ellison Rudd Watts, saying that the Body Corporate committee was meeting on 27 March 2013 and would respond as soon as practicable after that meeting. On the same day Minter Ellison Rudd Watts replied, saying the “delay” proposed by the Body Corporate's secretary was unacceptable and that legal proceedings might be issued if a substantive response was not received by 5.00 pm on 22 March 2013.

13 On 17 March 2013, the first defendant sent an email asking for confirmation that Minter Ellison Rudd Watts would meet the reasonable costs of responding to the letter sent by Minter Ellison Rudd Watts on 14 March 2013.

14 On 18 March 2013 Minter Ellison Rudd Watts wrote again to the Body Corporate committee expressing the displeasure of the concerned owners group about the responses received. In that letter Minter Ellison Rudd Watts said they were wanting to...