Chiv v Dai - [2024] NZHC 2825

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1761

[2024] NZHC 2825

BETWEEN
KHIENG CHIV

Plaintiff

AND

SANDY ZHUJUN DAI

Defendant

Hearing:
19 February 2024 (with further submissions received 5, 19 and 25

March 2024)

Appearances:

A J Romanos for Plaintiff Defendant in person

Judgment:

30 September 2024

JUDGMENT OF MOORE J

This judgment was delivered by me on 30 September 2024 at 3.00 pm, Pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ……………………

Solicitors:
Maude & Millar, Wellington

CHIV v DAI [2024] NZHC 2825 [30 September 2024]

Introduction

[1] The plaintiff and the defendant were once both chartered accountants. They practised in different cities. A bakery business which had once used the defendant’s professional services decided to switch accountants and use the plaintiff’s services. The defendant did not like this. She attempted to dissuade the bakery business from doing so by sending its owners a message which was critical of the plaintiff, attacking him both professionally and personally.

[2] The plaintiff wrote to the defendant telling her that her allegations were false, defamatory and without any evidential foundation. He told her that they were made for the purpose of persuading the bakery owners to keep her services. The plaintiff invited the defendant to respond in order to avoid litigation.

[3] Instead, the defendant sent a further message to the clients in broadly similar terms. The plaintiff thus sues in defamation.

Background

[4] The plaintiff, Khieng Chiv, practises as an accountant, trading as CWK Accountants. Mr Chiv is ethnically Cambodian, although his South Auckland client base is broad, drawing from various ethnic groups. He uses Kevin as his English first name.

[5] In early to mid-2021, Mr Chiv was approached by a Cambodian couple, Mr H and his wife, Ms C. Mr H and Ms C ran a bakery business on Auckland’s North Shore (“the Bakery”). They had purchased it a year or so prior. In doing so they inherited the accountant used by the previous owners. This was the defendant, Sandy Dai. Ms Dai was a Wellington-based accountant trading as “Synergy Accounting” through her company, Synergy New Zealand (2018) Limited (“Synergy”).1

[6] Mr H and Ms C engaged Mr Chiv as they decided that they needed to change accountants. It appears that the decision to change accountants was influenced by

1 Ms Dai is the principal of Synergy New Zealand (2018) Limited. Its registered office is situated in Woodbridge, Wellington.

several factors including a degree of dissatisfaction with Ms Dai’s increasing fees, the inconvenience of having a Wellington-based accountant and the desirability of having their financial affairs attended to by a fellow Cambodian speaker. And so it was that they turned to Mr Chiv.

[7] In order to contextualise the narrative which follows it is necessary to set out something about Mr Chiv and his professional status.

[8] On 15 July 2019, Mr Chiv admitted five charges before the Disciplinary Tribunal of the New Zealand…

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 Chiv v Dai

Details

AGLC: Chiv v Dai [2024] NZHC 2825
Case: [2024] NZHC 2825
Decision Date: 30 September 2024

CaseChat Overview and Summary

Khieng Chiv, an accountant, sued Sandy Dai, another accountant, for defamation. Mr Chiv had been suspended from membership of the New Zealand Institute of Chartered Accountants (NZICA) for two years. Ms Dai sent two emails to Mr Chiv's new clients, the owners of a bakery, making false and defamatory statements about Mr Chiv. The first email implied that Mr Chiv was banned from trading as an accountant and had been found guilty of having inappropriate sexual relationships with his female clients. The second email repeated these claims and added that Mr Chiv required psychiatric treatment. Mr Chiv sued for defamation, claiming damages of $250,000. The court found that both emails contained defamatory statements that were published by Ms Dai. The court rejected Ms Dai's defences, including that the statements were true, that they were honest opinions, or that they were protected by qualified privilege. The court awarded Mr Chiv $50,000 in damages, considering the seriousness of the defamatory statements and the limited audience to whom they were published. The court also ordered Ms Dai to pay Mr Chiv's costs.

Orders