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Deliu v Hong

Deliu v Hong

Case [2013] NZHC 735 12 April 2013

Abuse of Process

Defamation

Intentional Infliction of Emotional Distress

Malicious Prosecution

Statutory Interpretation

Tortious Interference

Tort Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-006349 [2013] NZHC 735

BETWEEN FRANCISC CATALIN DELIU Plaintiff

ANDBOON GUNN HONG Defendant

Hearing: 4 and 5 October 2012
(with further written submissions 22 February 2013, 15 March 2013,
27 March 2013 and 4 April 2013) (Heard at Auckland)

Appearances: F C Deliu (Plaintiff/Respondent) in person
A D Banbrook for Defendant/Applicant

Judgment: 12 April 2013

JUDGMENT OF ASSOCIATE JUDGE OSBORNE [as to defendant’s application to strike out claim]

This judgment was delivered by Associate Judge Osborne on 12 April 2013 at 3.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

DELIU V HONG HC AK CIV-2010-404-006349 [12 April 2013]

Introduction

[1] This is a defendant’s application for an order striking out the plaintiff’s

statement of claim.

[2] Mr Deliu practises as a barrister. Mr Hong practises as a conveyancing solicitor.

[3] Mr Deliu sues Mr Hong in tort for things said and done in mid-2010. Since then a substantial body of litigation has grown out of the issues between them. The background is captured at the start of the judgment of Winkelmann J in a judicial review proceeding, Deliu v Hong1 which records:

[1] In May 2010 two junior barristers in Mr Deliu’s chambers, were retained as counsel in proceedings issued against a conveyancing solicitor, Mr Hong. Mr Hong responded to service of those proceedings upon him by sending a letter to the two barristers asserting that the proceedings were without merit, and threatening he would take various steps if they did not withdraw the action against him. Mr Deliu regards himself as the senior member of the chambers, and so took it upon himself to respond to Mr Hong, and to lay a complaint with the New Zealand Law Society (the Law Society) about the contents of Mr Hong’s letter. Sometime later, Mr Hong laid a complaint with the Law Society about Mr Deliu.

[2] There ensued a period of months during which Mr Deliu and Mr Hong exchanged insults and threats in correspondence with each other, often copying the Law Society into their correspondence and seeking to enlarge the scope of their respective complaints. The Law Society continued to receive the correspondence and, on occasion, forward it to the other party to other party for comment.

[4] The Schedule to this judgment contains references to some of the items of Mr Hong’s correspondence and particular content which Mr Deliu says were defamatory. The Schedule (including with typographical errors) is as attached to the first judgment issued in this proceeding – by Venning J on an injunction application
in October 2010.2

[5] Three other proceedings are relevant to this proceeding:

1 Deliu v Hong [2012] NZHC 158.
2 Deliu v Hong HC Auckland CIV-2010-404-006349, 27 October 2010 (Venning J).

1. The clients’ District Court proceeding – the 2010 proceeding referred to by Winkelmann J, in which clients of Amicus Lawyers Limited (“Amicus”) sued Mr Hong and others for negligence on a property purchased.3

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 Deliu v Hong

Details

AGLC: Deliu v Hong [2013] NZHC 735
Case: [2013] NZHC 735
Decision Date: 12 April 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Associate Judge Osborne dismissed the defendant's application to strike out the plaintiff's statement of claim in Deliu v Hong. The plaintiff, a barrister, sued the defendant, a solicitor, for torts related to correspondence exchanged between the parties. The court rejected the defendant's arguments that the plaintiff's claims were frivolous, vexatious, or an abuse of process, and that the claims were not arguable. The court found that the plaintiff had a reasonable hope of success and that the proceeding was not a waste of court resources. The court also rejected the defendant's arguments that the plaintiff's claims were privileged or protected by other defenses. The court ordered that the defendant's application to strike out the plaintiff's statement of claim be dismissed, and that costs be reserved pending further submissions from the parties.

Orders