BFW Ltd v Shi - [2022] NZHC 2136

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2371

[2022] NZHC 2136

UNDER the District Court Act 2016

IN THE MATTER

of an appeal against the decision of the District Court at Auckland in [2021] NZDC 14952

BETWEEN

BFW LTD

Appellant

AND

VICKY SHI

Respondent

Hearing: 12 July 2022

Counsel:

R K P Stewart for Appellant

R D Butler and S C I Jeffs for Respondent

Judgment:

25 August 2022

JUDGMENT OF BREWER J

This judgment was delivered by me on 25 August 2022 at 4 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Duncan Cotterill (Wellington) for Appellant Haigh Lyon (Auckland) for Respondent

BFW LTD v SHI [2022] NZHC 2136 [25 August 2022]

Introduction

[1] The appellant (BFW) unsuccessfully sued Ms Shi for defamation and injurious falsehood.

[2] After an aborted start in February 2020,1 Ms Shi obtained summary judgment against BFW in July 2021.2

[3] BFW wants to appeal the decision to grant Ms Shi summary judgment on the defamation cause of action. As prerequisites, it needs leave to extend the time for filing its notice of appeal and it needs leave to adduce affidavit evidence from Mr Bing Feng Han (BFW’s sole director and shareholder) and Ms Bai Jing (a customer of BFW).

[4] First, I grant leave to extend the time for filing the notice of appeal. The application is not opposed and Mr Han’s contention that he was not advised that the appeal period ran from the date of Judge Sharp’s oral judgment (rather than the date the written version was provided) is not contested.

[5] Second, I will receive the affidavits of Mr Han and Ms Jing on a de bene esse basis. That is to say, I will accept them on a provisional basis because of the nature of the issue in this appeal, which I will come to once I have set out the relevant background.

Background

[6] BFW sells school lunches. These can be ordered online and BFW delivers them to the schools. It trades under the name “Go Deli”. Ms Shi was a customer. One day Ms Shi found a lunch containing maggots. She mistakenly formed the view it had been supplied in that condition by “Go Deli”.3 Ms Shi posted defamatory material about “Go Deli” to a social media group. Attempts to resolve the matter were

1      On 26 February 2020, Judge M-E Sharp ordered Ms Shi to pay $5,000 to BFW for wasted costs.
2      BFW Ltd v Shi [2021] NZDC 14952 [District Court decision].
3      In fact the lunch had been partly consumed by Ms Shi’s child the previous week and left to fester in the child’s school bag over the weekend.

unsuccessful. BFW issued proceedings in the District Court for defamation and injurious falsehood.

[7] Judge Sharp granted Ms Shi summary judgment on the defamation cause of action for two reasons:4

(a)The Judge held there was no evidence that anyone connected “Go Deli”…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BFW Ltd v Shi

Details

AGLC: BFW Ltd v Shi [2022] NZHC 2136
Case: [2022] NZHC 2136
Decision Date: 25 August 2022

CaseChat Overview and Summary

In BFW Ltd v Shi, the High Court of New Zealand considered an appeal by BFW Ltd against a decision of the District Court which granted summary judgment in favour of Ms Shi on BFW’s defamation claim. The primary issue before the Court was whether leave should be granted to admit further evidence on appeal. BFW argued that the affidavits of Mr Bing Feng Han (BFW’s sole director and shareholder) and Ms Bai Jing (a customer of BFW) should be admitted to demonstrate that there was evidence available linking BFW to the “Go Deli” brand, which had not been adduced before the District Court. The Court held that the evidence was not fresh, as it was available at the time of the District Court hearing, and therefore there were no special reasons to admit it on appeal. The Court further found that even if the evidence was admitted, it would not materially affect the outcome of the case, as BFW had failed to show that it had suffered pecuniary loss of more than minor harm as a result of the defamatory post. The appeal was dismissed and Ms Shi was awarded costs.

The Court held that the principles governing the receipt of further evidence on appeal are straightforward. The Court can receive further evidence if it thinks that the interests of justice require it to do so, but it is wrong to allow an appellant to bolster their case with additional evidence that was available at the lower Court hearing, but not adduced because of the particular view of the case being taken at the time. Admitting further evidence on appeal is exceptional rather than routine. A change of heart about how a case should have been run will not suffice. The prospect of further evidence triggering a substantial relitigation before the appellate Court of the substantive case will count against admitting the further evidence. Generally, the further evidence must be fresh, credible and cogent. Evidence will not be regarded as fresh if it could, with reasonable diligence, have been produced at the trial. The interests of justice require the parties to put their best case forward at trial, in order to avoid wasting the Court’s limited time and resources. A high value is placed on finality when the parties have been afforded the opportunity and failed to take it. The standard to be met is rightly high.

In this case, the Court found that the evidence of Ms Jing was credible and cogent, but it was not fresh. BFW had been on notice of the need for evidence linking BFW with “Go Deli” since at least 1 July 2020, and had every opportunity to adduce evidence of this nature prior to the hearing taking place. While Mr Han attributes this failure to his lawyers, in essence all that has happened is that BFW did not put its best case forward at the summary judgment hearing. These are not exceptional or compelling circumstances that warrant the Court now granting leave for BFW to adduce further evidence on appeal. Nor would it be in the interests of justice to do so. Over three years have passed since Ms Shi posted the allegedly defamatory material, and BFW has produced no evidence of the amount of profit it claims to have lost as a consequence of Ms Shi’s post. The evidence of BFW’s reputation being affected (as opposed to “Go Deli”) is also relatively slim. The threshold for granting leave to adduce further evidence on appeal is high, reflecting in part the value that is placed on finality in litigation. Ms Shi has offered to settle with BFW on the basis that she will compensate it for any lost turnover and will apologise on the terms sought by BFW. Yet BFW persists in its claim. The Court agreed with the Judge that “the cost of continuing the proceedings would be disproportionate to both parties”. Even if the evidence of Ms Jing were to be admitted, it would not materially affect the outcome of the case. The Court of Appeal recently confirmed that for a meaning to be defamatory it must do “more than minor harm” to the claimant’s reputation. A body corporate has no feelings and cannot recover for loss of reputation: it can only recover for pecuniary loss. It follows that for a meaning to be defamatory of a body corporate it must have caused (or be likely to cause) pecuniary loss that is more than minor. BFW suffered a temporary reduction in turnover of $1,982, but it has produced no corresponding evidence of the profit it claims to have lost as a consequence of Ms Shi’s post. Any such losses would presumably be demonstrably less than the fall in turnover. The evidence that has been produced also illustrates that BFW’s revenue and profits actually increased in the financial year ending 2019. The Court agreed with the Judge that had BFW sustained any losses that were more than minor as a consequence of Ms Shi’s post, it would have been able to produce evidence of those losses by now. There are no special reasons for admitting Ms Jing’s evidence.

Orders