Deliu v Hong - [2013] NZHC 736

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-006349 [2013] NZHC 736

BETWEEN FRANCISC CATALIN DELIU Plaintiff

ANDBOON GUNN HONG Defendant

Hearing: 5 & 6 October 2012 (Heard at Auckland)

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

Judgment: 12 April 2013

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

[as to plaintiff ’s application for a strike out order or further particulars]

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] Mr Deliu sues Mr Hong in tort for things said and done in mid-2010. Mr Deliu is a barrister. Mr Hong is a conveyancing solicitor. Since mid-2010 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.

[2] In a judgment also delivered today, I have dismissed an application by Mr

Hong as defendant to strike out Mr Deliu’s statement of claim.2

[3] In this judgment, I determine an application by Mr Deliu for an order striking

out Mr Hong’s defence or, alternatively, requiring Mr Hong to re-plead.

The statement of claim and the statement of defence

[4] What I will refer to as the statement of claim and the statement of defence are each in their second amended versions.

[5] Mr Deliu’s second amended statement of claim runs to 27 pages of pleadings with an additional 16 pages of particulars attached. In the claim, Mr Deliu sues Mr

1 Deliu v Hong [2012] NZHC 158.
2 Deliu v Hong [2013] NZHC 735.

Hong in tort on four causes of action, namely abuse of process, malicious prosecution, intentional infliction of emotional distress and…

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 736
Case: [2013] NZHC 736
Decision Date: 12 April 2013

CaseChat Overview and Summary

Francis Catalin Deliu sues Boon Gunn Hong in tort for things said and done in mid-2010. Deliu, a barrister, and Hong, a conveyancing solicitor, have been engaged in extensive litigation since mid-2010. The litigation began when two junior barristers in Deliu's chambers were retained as counsel in proceedings issued against Hong. Hong responded by asserting that the proceedings were without merit and threatening to take various steps if they did not withdraw the action against him. Deliu, as the senior member of the chambers, took it upon himself to respond to Hong and to lay a complaint with the New Zealand Law Society (Law Society) about the contents of Hong's letter. Hong later laid a complaint with the Law Society about Deliu. Over the following months, Deliu and 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. Deliu sues Hong in tort on four causes of action, namely abuse of process, malicious prosecution, intentional infliction of emotional distress and defamation or malicious falsehood. Hong pleads to the paragraphs in the statement of claim individually, separately and in order. In the last paragraph of the statement of defence, Hong pleads four alternative defences (all in relation to the defamation/malicious falsehood claim). Deliu makes an application for an order striking out Hong's defence or, alternatively, requiring Hong to re-plead. Deliu identifies particular paragraphs in the defence as examples of defective pleading. The court finds that Hong's pleading is not a "total write-off" referred to by Tipping J in Marshall Futures but rather in the category his Honour described as "one which is deficient but is capable of effective repair". The court orders Hong to file and serve a further amended statement of defence dealing with some defects in the current pleading.

Orders