Haus of Flash Ltd v Tamaki
[2025] NZHC 3276
•30 October 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-1555
[2025] NZHC 3276
BETWEEN HAUS OF FLASH LIMITED
First Plaintiff
SUNITA NALINE TORRANCE
Second PlaintiffDANIEL RONALD HUGH LOCKETT
Third PlaintiffAND
BRIAN RAYMOND TAMAKI
First DefendantEDEN LEE O’CONNOR, DAVID
LAWRENCE HOHEPA KAHU, JENNIFER LOUISE MARSHALL and TALAMASENE
LEASAMAIVAO, as trustees of DESTINY CHURCH NEW ZEALAND TRUST
Second DefendantsLEIGHTON PACKER
Third Defendant continued …
Hearing: 8 September 2025 Appearances:
C F Griggs for Plaintiffs
S L McGolgan for First and Second Defendants
U A Kuddus for Third, Fourth and Seventh Defendants N Johnson for Fifth Defendant
No appearance for Sixth Defendant
Judgment:
30 October 2025
JUDGMENT OF ASSOCIATE JUDGE LESTER
This judgment was delivered by me on 30 October 2025 at 3.00 pm
pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
HAUS OF FLASH LIMITED v TAMAKI [2025] NZHC 3276 [30 October 2025]
AND JEWEL NGAHUKA
Fourth Defendant
AND DEREK WIGNALL
Fifth Defendant
AND HOHEPA HAEATA
Sixth Defendant
AND TERANGIMARIE NGAHUKA
Seventh Defendant
[1] Did Mr Brian Tamaki, leader of the Destiny Church New Zealand Trust (Destiny Church), with a pastor of the Destiny Church in Gisborne, a pastor of the Iwi Tapu Destiny Church in Hawkes Bay, and with members of the Destiny Church, conspire to damage, if not destroy the business of Haus of Flash Limited (Haus)? Did they defame the second plaintiff, Ms Torrance, the director and owner of Haus, and the third plaintiff, Mr Lockett, a contractor to Haus? Those are the issues in the 19 causes of action in this proceeding.
[2] Haus is a company that trades (or at least, traded) as an events and entertainment organiser. Ms Torrance is a female entertainer whose stage name is “CoCo Flash”. Mr Lockett is a male entertainer with the stage name of “Erika Flash” and was an independent contractor to Haus. Ms Torrance and Mr Lockett, in their statement of claim, describe themselves as drag performers, so I use the same term.
[3] Up until April 2024, Haus says it produced shows, including cabarets, it provided entertainment at weddings, corporate functions, festivals and fundraisers. It alleges that Ms Torrance and Mr Lockett were its key drag performers.
[4] One of the events Haus ran was called “Rainbow Storytime” which involved the drag characters of Ms Torrance and Mr Lockett, reading age-appropriate stories for children aged 7 years and under, and other sessions for those aged 8 to 15 years.
[5] While Haus did produce adult-themed performances for some of its customers, it says none of the material presented in Rainbow Storytime had sexual adult themes. The Rainbow Storytime events were often conducted in libraries.
[6] Haus offered another event called the “Living Library”. The target age group for Living Library were young people and adults 16 years and over. It was primarily a discussion forum, and included story readings and other performances. The discussion forum provided participants with a supportive environment to ask questions of the plaintiffs which might include questions relating to LGBTQIA+ issues.
[7] Haus conducted nationwide tours of its Rainbow Storytime and Living Library events in 2020 and 2022, providing those events in libraries and other venues.
[8] The allegations in this proceeding concern events Haus says it contracted to undertake in the Rotorua Library on 21 March 2024, the Gisborne Library on 26 March 2024, and the Hastings Library on 27 March 2024.
[9] At its most general, the plaintiffs allege that Mr Tamaki instructed the pastors and members of the Destiny Church to shut down the events.
[10] That allegation underpins the first three causes of action in the statement of claim which plead economic torts orientated around interference with business relations. These three causes of action are bought by Haus against all defendants. The remaining causes of action (four to 19) are brought by all plaintiffs in defamation save that the 10th, 11th and 13th causes of action are brought only by the third plaintiff. The defamatory statements are said to be made by Mr Tamaki either in media releases or in sermons he delivered, or by each of the third to seventh defendants in Facebook posts on various dates.
[11] Three applications came on for hearing on 8 September 2025. The first was an application by the plaintiffs seeking an order that the third to seventh defendants (excluding the sixth) failed to comply with an unless order that they give general discovery1—that application, if successful, would result in those defendants’ defences being struck out.
1 Haus of Flash Ltd v Tamaki HC Auckland CIV-2024-404-1555, 20 May 2025 at [11], citing High Court Rules 2016, r 8.7.
[12] The second was an application by the third to seventh defendants (excluding the sixth defendant) for security for costs against Haus. That application originally included Ms Torrance and Mr Lockett, but as they have been granted legal aid, I record the application as regards them was withdrawn by consent with no order as to costs. That leaves the security for costs application against Haus to be considered.
[13] The third application was by the third to seventh defendants (excluding the sixth defendant), to strike out the first to third causes of action against them.
[14] The sixth defendant has taken no steps, and a formal proof hearing was held on 18 August 2025. Johnstone J reserved his decision.
[15]The following timeline is derived from the statement of claim:
Date Document 11 March 2024
Haus entered into a contract with Rotorua Lakes Council to deliver a Rainbow Storytime session at Rotorua Library. The event date was 21 March 2024.
12 March 2024
The fifth defendant made a statement on Facebook regarding the Rotorua event. It was pleaded that its meaning was that the second and third plaintiffs are perverts who abuse children and Haus is a company that facilitates perversion and child abuse.
12 March 2024
The seventh defendant made a statement on Facebook. Its pleaded meaning is that the second and third plaintiffs are perverts and predators towards children and that Haus facilitates perverted and predatory behaviour towards children.
13 March 2024
Haus entered into a contract with Hastings District Council to deliver two Rainbow Storytime sessions and one Living Library session at the Hastings Library. The event date was 27 March 2024.
14 March 2024
Mr Tamaki allegedly instructs pastors and members of Destiny Church, including defendants, to take action to shut down the Rotorua and Hastings events.
14 March 2024 Mr Tamaki is alleged to have issued a Press release in which
he describes the Hastings, Gisborne and Rotorua events as “grooming” and “targeting our innocent kids with their filth”.2
15 March 2024
The fourth defendant, in a Facebook post, referred to the third plaintiff as “Now allowed to groom our kids … Wicked perverse generation…”.
15 March 2024
The seventh defendant made a statement on Facebook which the plaintiffs plead refers to them, that they were involved in “indoctrinating, inciting, seducing our vulnerable youth with adultery behaviours!!”.
17 March 2024
The sixth defendant published a post on Facebook, referring to the plaintiffs, stating: “Sick pedo leave the children alone you weirdos”.
17 March 2024
The sixth defendant published a post on Facebook, referring to the Rotorua event saying: “We will shut this sick event down you pedos”.
17 March 2024
The sixth defendant published a post on Facebook, saying: “… don’t worry we’re coming to shut your pedo show down we have people everywhere thats why yous posted for security at your sick events because yous heard we were coming in force to expose you demon’s”.
19 March 2024
Haus entered into a contract with Gisborne District Court to deliver a Living Library session at Gisborne Library. The event date was 26 March 2024.
19 March 2024
Brian Tamaki allegedly instructs pastors and members of Destiny Church to shut down the Gisborne event.
25 March 2024
The fourth defendant comments on Hastings Library’s Facebook site, referring to “Pendophilia [sic] tendency, [sic] sexualisation tendencies & the twisting of the young minds to confuse them …”.
25 March 2024
The fourth defendant published the following statement on Facebook referring to the third plaintiff by his stage name that he has a “foul agenda to groom the young minds …”.
2 I note as at 14 March 2024, the Gisborne event had not been contracted—Haus’ contract for that event is dated 19 March 2024.
[16] The pleading also refers to a number of sermons given by Mr Tamaki on 31 March, 7 April, 28 April and 13 May 2024. On 13 May 2024, Mr Tamaki gave a sermon in which he said: “The very people that we’ve stopped doing any more activities with our children that are illegal and illicit … we’re talking about drag queens … lives here”. There is then reference to Councils paying “your money to these story-telling drag queens to sexualise our children”. In Mr Tamaki’s sermon on 28 April 2024, there is reference to drag queens getting paid by ratepayers and taxpayers.
[17] The timing of Haus contracting to hold its library events, the timing of the Facebook posts set out above, along with Mr Tamaki’s reference to “the very people that we’ve stopped”, is the pleaded context in which the applications before me must be considered.
Unless order
[18] On 20 May 2025, Associate Judge Brittain issued a minute recording that the first to fifth and seventh defendants had provided no adequate explanation for failing to give standard discovery as previously ordered.3 Their discovery was due on 22 March 2025 but was on 29 April 2025 extended to 2 May 2025.4 By 20 May 2025, the discovery had not been provided and his Honour made an order that unless the defendants provided standard discovery pursuant to r 8.7 of the High Court Rules 2016 (the Rules) by 11 June 2025, their defences would be struck out.5
[19] On 11 June 2025, the third, fifth and seventh defendants filed and served lists of documents which only listed the New King James Bible as a discoverable document. The lists described the steps taken to search for documents. The seventh defendant’s list was not sworn until the following day (12 June 2025), but responsibly no issue was taken with that minor delay. The fourth defendant’s list identified only a single email and also described the steps taken to search for material.
3 At [7].
4 At [5].
5 At [11].
[20]I will return to the adequacy of the searches undertaken by these defendants.
[21] The short point is Mr Griggs, counsel for the plaintiffs, says it is incredible that none of the defendants have any discoverable documents other than the New Kin James Bible and the one email disclosed by the fourth defendant.
[22] The plaintiffs, in their initial disclosure, included Facebook extracts from the defendants Facebook pages which form the basis of the defamation causes of action. These pages were not included in the defendants’ discovery.
[23] Rule 8.16(5) of the Rules says it is not necessary to list documents that have been filed in court or correspondence that may reasonably be assumed to be in the possession of all parties. Initial disclosure is not filed in Court, so the fact the plaintiffs included the Facebook posts in their initial disclosure was strictly speaking, not grounds for that material to be excluded from discovery. The authors of McGechan on Procedure note that if r 8.16(5) was interpreted literally, the reference to correspondence would require all other documents to be listed even if in the possession of all parties.6 The authors note that even if that literal interpretation is correct, proportionality and the duty to co-operate under r 8.2 would operate to relax the requirement to stick rigidly to the Rules.
[24] Here, there was no discussion between counsel to agree to exclude documents in initial disclosure from their lists.
[25] Mr Kuddus,7 counsel for the third, fourth and seventh defendants, submitted there was no point in his clients’ discovery including documents already in the plaintiffs’ initial disclosure. In addition, Mr Kuddus explained that each of the Facebook sites maintained by his clients, were created as “individual” sites rather than business sites and as such, there was no ability for personal account holders to
6 Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR8.16.07].
7 Submissions state that Mr Kuddus was assisting counsel to the third, fourth and seventh defendants and that Mr Johnson was counsel assisting the fifth defendant. (Mr Johnson presented the submissions in respect of security for costs).
obtain what are known as analytics from Facebook which provides details as to audience demographics and other data.
[26] Mr Kuddus made the above submission in response to Mr Griggs referring to the Facebook site operated by Haus, as an example of the type of information Haus could obtain from Facebook. However, Haus’ Facebook account is a business account and thus Mr Kuddus submitted the comparison was not a valid one.
[27] Mr Kuddus’ clients have requested their metadata from Facebook. The fifth defendant has received what is said to be three gigabytes of data from Facebook which was not in a discoverable format.
[28] The practical submission is that for five defendants (including the sixth defendant against whom formal proof has been sought), to have all, within a little over 10 days, posted Facebook messages targeting the library events that Mr Tamaki a few days earlier “directed” his followers to take steps to cancel without there being discoverable communication between those defendant, Mr Tamaki or Destiny Church, is highly unlikely.
[29] While I can understand that suspicion, I cannot be satisfied there has been a deliberate breach of the unless order warranting striking out the defences on that basis.
[30] However, I am satisfied that the description of the steps taken by Mr Kuddus’ clients to describe the searches they undertook for documents, is incomplete. However, I do not consider that incompleteness warrants granting the strike out application.
[31] The difficulty with the unless order in this case (and it is not a criticism of how the order was framed) is that whether a list of documents complies with the Rules is not a black and white issue unless it is proven documents have been omitted.
[32] Absent clear evidence that a defendant subject to the unless order failed to disclose documents within their power and control, suspicion these are missing documents is not enough.
[33] As I have said, I am satisfied that the searches described by the defendants in their affidavit, which are as follows, are incomplete:
a.I have perused my Facebook Account to obtain documents/posts to screen for relevance;
b.I have also requested “all personal data” from Facebook and Instagram and will be able to peruse this for documents/posts of relevance once received, and will then discover any documents of relevance;
c.I have initiated searches on my email account using keywords to obtain emails that discuss the Plaintiffs or their actions or any references to the LGBT community; and
d.collected all physical documents, including the Bible that forms the basis of my core beliefs in relation to the LGBT community.
[34]Rule 8.14 of the Rules provides:
8.14 Extent of search
(1)A party must make a reasonable search for documents within the scope of the discovery order.
(2)What amounts to a reasonable search depends on the circumstances, including the following factors:
(a)the nature and complexity of the proceeding; and
(b)the number of documents involved; and
(c)the ease and cost of retrieving a document; and
(d)the significance of any document likely to be found; and
(e)the need for discovery to be proportionate to the subject matter of the proceeding.
[35] It is clear that the searches a party must undertake are context specific. Here, as I have said, the context is of a conspiracy. Any communication between Mr Tamaki, Destiny Church, the defendants and other members of the Destiny Church or communications with other individuals relevant to the proceeding are discoverable.
[36] The parties have not described searches of Facebook Messenger or other electronic messaging services, or of their phones.
[37] Accordingly, while I am satisfied that it is not appropriate to make a strike out order, it is appropriate to make an order that takes into account the factors in r 8.14(2).
[38] Accordingly, the third to seventh defendants (excluding the sixth defendant) are to each file an affidavit covering the following matters:
(a)Identifications of all computers, phones or other means of accessing the internet that were in their position or that they had access to and used between 1 March 2024 and 14 April 2024.
(b)Whether the devices in (a) above are still in their possession and, if not:
(i)when those devices were no longer in their possession; and
(ii)why those devices are no longer in their possession.
(c)Identify all means of communications with Destiny Church, Brian Tamaki, other pastors of the Destiny Church and members of Destiny Church that they used between 1 March 2024 and 14 April 2024.
(d)Provide discovery of all their phone records for the period 1 March 2024 and 14 April 2024.
(e)Provide screenshots or copies of all communications, whether electronic or otherwise, with Destiny Church, Mr Tamaki, other church pastors or members or individuals relevant to this proceeding.
[39] Given the conspiracy allegation at the heart of the first three causes of action and given there are unlikely to be a significant number of documents involved, any material disclosed by the above searches will not be difficult to recover and will be significant to the case. The defendants’ description of their searches should have addressed all means of communication available to them.
Decision
[40] Accordingly, the application to strike-out for failing to comply with the unless order in Associate Judge Brittain’s Minute of 20 May 2025, is dismissed on the above basis. The further discovery is to be provided within 15 working days of the date of this judgment.
Costs
[41]There is no order as to costs.
Application by third to seventh defendants ((excluding the sixth defendant) to strike out the first to third causes of action
Applicable principles
[42] Counsel agreed on the principles applying to a strike out application, and I adopt the summary from Attorney-General v Prince:8
A striking-out application proceeds on the assumption that the facts pleaded in the statement of claim are true. That is so even although they are not or may not be admitted. It is well settled that before the Court may strike out proceedings the causes of action must be so clearly untenable that they cannot possibly succeed; … the jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material …
[43] It is the first part of the above passage that is fatal to the strike out application. Mr Kuddus, in a number of his submissions, referred to affidavit evidence filed in support of the strike out application to support his submission that elements of the three causes of action had not been established.
8 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267 (citations omitted).
[44] The Court of Appeal said in Attorney-General v McVeagh, that while the Court is entitled to receive affidavit evidence on a strike out application, normally it would not consider evidence inconsistent with the pleading because a strike out application is dealt with on the footing that the pleaded facts can be proved.9 The exception is where an essential factual allegation is so demonstrably contrary to indisputable fact that the matter ought not to be allowed to proceed further. The affidavit evidence in this case is not at that level.
[45] I will now briefly address each of the three causes of action subject to the strike out application.
First cause of action—inducing breach of contract
[46]Mr Kuddus submitted the first cause of action has the following elements:10
a.there must be a legally enforceable contract in existence;
b.the defendant must have engaged in conduct which in fact induced a breach of the contract;
c.the defendant must have intended that his or her conduct would induce the breach;
d.the defendant’s conduct inducing the breach must have caused loss or damage to the plaintiff; and
e.the defence of justification may arise.
[47]Mr Kuddus submitted the statement of claim failed to plead:
(a)a contractual relationship known to the defendants;
(b)any intention or conduct by the defendants that could amount to inducement; and
(c)any actual breach of contract caused by the defendants.
9 Attorney-General v McVeagh [1995] 1 NZLR 558 (CA) at 566.
10 OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1 at [191]–[192]. See also Diver v Loktronic Industries Ltd [2012] NZCA 131, [2012] 2 NZLR 388 at [30].
[48]Haus pleads:
The defendants knew that the cancellation of the Hastings and Rotorua Events would constitute breaches of contract by Hastings District Council and Rotorua Lakes District Council, or were reckless as to whether such cancellations would constitute such a breach.
[49] As to what the defendants knew about the existence of a contract, I note the fourth defendant in a Facebook post made the comment: “Your mum & dad are paying for this clown (rate payers money)…” (emphasis added). Clearly, the fourth defendant was aware of some transaction involved in the Hastings Library event.
[50] In another post, the fourth defendant referred to “yup rate payers…”. “$1200 for 1 day”.
[51] That Haus was running events across Rotorua, Gisborne and Hastings is consistent with there being some commercial arrangement behind those events.
[52] Mr Griggs referred to Diver v Loktronic Industries Ltd, where the Court of Appeal referred to an English authority Emerald Construction Co Ltd v Lowthian where the English Court of Appeal said:11
Even if they did not know the actual terms of the contract, but had the means of knowledge – which they deliberately disregarded – that would be enough. Like the man who turns a blind eye.
[53] Ultimately, this is a trial issue. I do not accept Mr Kuddus’ submission that on the current pleadings and evidence, the first cause of action cannot succeed as there is no evidence that the defendants had actual knowledge of the plaintiffs’ contract. The plaintiffs are entitled to the presumption noted at [42] that applies in a strike out and, as I have said, the affidavit evidence is not such as to make the pleading “demonstrably contrary to indisputable fact”.12 The fourth defendant’s Facebook posts show she had knowledge of at least one of the contracts or at least that the event involved a fee. The
11 Emerald Construction Co Ltd v Lowthian 1 WLR 691 (CA) at 700–701. The Court of Appeal in Diver v Loktronic Industries Ltd, above n 10, at [34] was noting that Lord Hoffman in OBG Ltd v Allan, above n 10, at [40] had endorsed Lord Denning’s formulation in Emerald Construction.
12 Attorney-General v McVeagh, above n 9, at 566.
extent to which that post was shared or seen by other defendants is a matter for trial and might be the subject of the further discovery I have ordered.
[54] The next element Mr Kuddus submitted is not satisfied is, intentional conduct by the defendants to induce the breach of contract.
[55] The plaintiffs plead that the defendants organised and/or participated in protests at the venues of the Rotorua, Gisborne and Hastings events and that those protests were intended to induce the respective Councils to cancel those contracts. It is pleaded the defendants knew that the cancellation of the events would constitute a breach of contract by the Councils or that the defendants were reckless as to where the cancellations would constitute such a breach.
[56]Again, the presumption applies.
[57] There is reference in the Facebook posts to wanting to shut the events down. The fact is protests did occur and were organised in some way by someone. The orders made in respect of further discovery may well cast light on that issue.
[58] The final element that Mr Kuddus says is not satisfied is that there was no breach of contract in relation to the three events. In my view, that submission misconstrues the contract between Haus and the respective Councils. Mr Kuddus relied on cl 3 of Haus’ terms and conditions which is headed “Cancellation of Hire” which begins:
If the Customer for any reason, terminates a booked hire, irrespective of whether a bond/deposit has been paid or not, then the following fees will apply: If cancelled with over 21 days of delivery and/or event date – 100% of deposit. ….
There is then a sliding scale of amounts payable by a cancelling party. The clause goes on to say that if an event is cancelled due to COVID-19 or other pandemic, refunds will not be offered but a credit would be given.
[59] Mr Kuddus characterised this clause as giving the respective Councils a right to cancel, and therefore there was no breach when the Councils called off the events.
What the clause does is set out the consequence of breach as contemplated by s 34 of the Contract and Commercial Law Act 2017. In any event, whether inducing a party to a contract to exercise a right to exit the contract or inducing a breach is not so materially different to warrant a strike out on this point.
Decision on the first cause of action
[60] It follows that I am satisfied the application to strike out the first cause of action must be dismissed.
Second cause of action—conspiracy to injure/unlawful purpose conspiracy
[61]Mr Kuddus submitted the elements for this tort are:13
a.an agreement or understanding between two or more people;
b.a concerted course of action taken pursuant to that agreement or understanding;
c.a dominant intention by the combiners to injure the plaintiff’s legitimate interests by that course of action;
d.the absence of any legitimating object or just cause/excuse for the actions; and
e.actual injury caused to the plaintiff.
[62] Mr Kuddus submitted the plaintiffs have failed to plead how an agreement or understanding arose between the parties, and that the allegation of a conspiracy is “pure speculation”. He relies on there being no further discovery available.
[63]I have already determined that further discovery is required.
[64]Paragraphs 31 to 33 of the statement of claim plead:
31.The first defendant initiated an agreement or understanding with the pastors and members of Destiny Church, including the second to seventh defendants, that action would be taken to shut down the Rotorua, Gisborne and Hastings Events.
13 Moeke v Raukawa Iwi Development Ltd [2019] NZHC 3166, (2019) 21 NZCPR 493 at [27], citing
Wagner v Gill [2013] NZHC 1304.
32.The defendants and other pastors and members of Destiny Church undertook a concerted course of action (the course of action) pursuant to the agreement or understanding mentioned above at paragraph 31.
Particulars
32.1The defendants and other pastors and members of Destiny Church conducted a campaign of disinformation and hatred via social media against the plaintiffs and the Rotorua, Gisborne and Hastings Events.
32.2The defendants and other pastors and members of Destiny Church directly or indirectly organised and/or participated in protests at the Rotorua, Gisborne and Hastings Events, at which they published disinformation and hatred against the plaintiffs and the Events.
33.The dominant intention of the defendants in undertaking the course of action was to injure the legitimate business interests of Haus of Flash in providing the Rotorua, Gisborne and Hastings Events.
[65] Mr Kuddus’ reference to a failure to plead how the agreement or understanding arose is either aimed at the issue of particulars or evidence and is not a basis to strike out given the presumption already noted.
[66] In any event, the material in the Facebook posts provides an evidentiary basis for the particulars set out above. An inference is available from the timeline of events that there was some co-ordination and/or communication between the defendants, the alternative is that it was a pure coincidence that the Facebook messages occurred after the first defendant’s press release on 14 March 2024 albeit I accept some Facebook posts were made before 14 March 2024.
[67] Mr Kuddus submits that the plaintiffs have not pleaded nor provided evidence in support of their assertion that the defendants acted in a concerted manner. I disagree that such is not pleaded, and in any event it is not for the plaintiffs to provide evidence in respect of those issues in a strike out application.
[68] Mr Kuddus submits that the plaintiffs have failed to plead or provide evidence that the defendants intended to economically harm the plaintiffs, and that the defendants were exercising their rights to express their Christian values and beliefs.
[69]The statement of claim pleads:
34.The defendants conspired to act outrageously in running the risk, which they consciously appreciated and/or intended, that the business of Haus of Flash would be seriously damaged or destroyed by the defendants’ conduct.
[70] The pleading is clear that the defendants intended to harm the economic interests of Haus.
[71] As to the claim that the defendants were exercising their rights to express their Christian values and beliefs, such is not a justification for referring to the plaintiffs as “… allowed to groom our kids at libraries” and “sexualising and grooming little johnny & sally”. In any event, this is not a strike out point.
[72] The sixth defendant commented on one of the plaintiffs’ Facebook posts: “No one will show up for a drag show for children ewww you pedos we will stop your drag shows …”. Then, “… we will stop this pedo show once and for all …” and they made a further reference to “your sick pedo show”.
[73] In one Facebook comment, involving the fourth and seventh defendants, there is reference to an “entrance for Pendophilia [sic] tendencies [sic] …”.
[74] A reference to the plaintiffs grooming or being “pedos” or similar, cannot be excused by claims that the defendants were exercising their rights to what they perceive to be “Christian values and beliefs”. Freedom of speech is not a defence to defamation.
[75] Mr Kuddus’ submission that the Facebook posts do not make any reference to inflicting economic harm on the plaintiffs is unrealistic given there are references to shutting the events down and references to what was being paid for those events.
Decision on the second cause of action
[76]The application to strike out the second cause of action is dismissed.
Third cause of action—unlawful means conspiracy
[77]Mr Kuddus submits the elements of the third cause of action are:14
a.the existence of a combination or agreement;
b.unlawful action (unlawful means);
c.an intention to injure the claimant; and
d.actual damage caused to the claimant.
[78]Mr Kuddus submits the statement of claim fails to plead:
(a)any agreement or combination involving the defendants;
(b)any unlawful means used by the defendants; and
(c)any intent to injure the plaintiffs.
[79] Again, Mr Kuddus relies on there being no further documents to be discovered and again, he relies on the plaintiffs failing to adduce evidence of an agreement between the defendants. This submission misconstrues the starting point for a strike out application, already referred to.
[80] Mr Kuddus submitted there can be no unlawful means because the defendants were lawfully exercising their rights under the New Zealand Bill of Rights Act 1990 (NZBORA).
[81] I do not accept that submission. Freedom of speech under NZBORA does not entitle the defendants to refer to the plaintiffs as groomers and paedophiles. No right is absolute. As Mr Griggs submits “… the interface between the law of defamation and the tort of inducing breach of contract on the one hand and NZBORA on the other is a matter for trial and is not properly raised in an application for strike out.”
14 Wagner v Gill [2014] NZCA 336, [2015] 3 NZLR 157 at [50].
[82] The Supreme Court in Couch v Attorney-General, noted that the Court should be slow to strike out a claim in any developing area of law.15
Decision on the third cause of action
[83]The application to strike out the third cause of action is dismissed.
Costs on the strike out application
[84] There is no reason why costs should not follow the event in respect of the unsuccessful strike out application. Mr Griggs may file a memorandum as to costs within five working days (not more than three pages). Any reply is to be filed within five working days (not more than five pages). If Mr Griggs is content with costs on a 2B basis plus disbursements as fixed by the Registrar, such shall be the order as to costs.
Security for costs by the third to seventh defendants (excluding the sixth defendant) against Haus
[85] The third to seventh defendants (excluding the sixth defendant) apply for security for costs against Haus.
[86] Mr Griggs accepted the threshold for an order for security, that is, there are reasonable grounds to believe Haus could not pay an adverse costs award, was satisfied.16
Merits of Haus’ claims stand against an award of security
[87] As noted, Haus is a plaintiff in each of the defamation causes of action (save the 10th, 11th and 13th causes of action) and seeks general damages of $20,000 or
$50,000. Haus is plaintiff in the first three causes of action which rely on the economic torts.
15 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
16 High Court Rules, r 5.45(b).
[88] In respect of economic torts, which Mr Griggs accepted have to be considered as alternative causes of action, special damages of $549,100 are sought in respect of the conspiracy to injure and unlawful means conspiracy.
[89]As recently remarked by this Court, general damages:17
…in defamation are directed towards the injury sustained as a result of the damage to the reputation. They are awarded to restore the plaintiff to the position he or she would have been in had the defamation not occurred.
[90] As Haus is a body corporate s 6 of the Defamation Act 1992 applies which states:
6 Proceedings for defamation brought by body corporate
Proceedings for defamation brought by a body corporate shall fail unless the body corporate alleges and proves that the publication of the matter that is the subject of the proceedings—
(a)has caused pecuniary loss; or
(b) is likely to cause pecuniary loss— to that body corporate.
[91]The learned authors of Todd on Torts provide:18
The pecuniary loss in question need not necessarily be confined to loss of income; damage to goodwill counts as well. But if this cannot be demonstrated, the company will not succeed.
[92] It is not necessary for Haus to quantify its economic loss, as its loss can be established by inference and based on likely effects only.19
[93] Mr Griggs explained that the relatively modest figure sought by Haus against the third to seventh defendants in the defamation causes of action was a practical recognition of the position of those defendants (all but one of the defendants being legally aided, and the sixth defendant not taking any steps in the proceeding).
17 Zhu v Chen [2025] NZHC 729 at [58].
18 Stephen Todd (ed) Todd on Torts (9th ed, Thomson Reuters, Wellington, 2023) at [15.4.3].
19 Television New Zealand Ltd v Talley’s Group Ltd [2024] NZCA 502 at [36].
[94] The pleading as a whole is clear that the statements complained of have damaged Haus’ ability to trade and accordingly, it is claiming pecuniary loss. Any issue with how that loss is pleaded in the defamation causes of action can be addressed by amendment, but there is no doubt Haus is claiming that its business was damaged by the pleaded alleged statements.
[95] The fourth to seventh defendants, in their Facebook posts,20 made claims to the effect that the sole director and shareholder of Haus and one of its key contractors are perverts or paedophiles and/or groomers, or that the events run by Haus promote grooming or “sexualisation” of children or teach children about perversion. Those posts found a reasonable basis for the defamation causes of action.
[96] The strength of the defamation causes of action, in my view, stand squarely against an award of security for costs against Haus. That, in a practical sense, is reinforced by it being reasonably arguable that the reason Haus is impecunious, are the actions of the defendants the subject of this claim.
[97]In Highgate on Broadway Ltd v Devine, Kόs J said:21
Where it is reasonably probable that the defendant’s actions the subject of a cause of action caused the plaintiff’s impecuniosity, that is a strong consideration against awarding security. The Court will already have formed a view as to whether the cause of action has potential merit. The question then is whether it is reasonably probable that it caused the plaintiff’s financial embarrassment. A question of linkage, rather than any further examination of the merits.
[98] Where, as set out above, some of the defendants were seeking to shut down Haus’ business, I am satisfied it is reasonably probable the fact Haus is not trading and that its key contractor (the third plaintiff) has left the country, is due to the actions of the defendants.
20 And third defendant who recorded a video and “caused it to be published to FB”, according to the statement of claim.
21 Highgate on Broadway Ltd v Devine [2012] NZHC 2288, [2013] NZAR 1017 at [23(a)] (footnotes omitted).
[99] Further, this is a case where if security were ordered against Haus, it would not be able to continue with its proceeding. In those circumstances, Kόs J said:22
Access to justice is an essential human right. The cost of exercising that right is the payment of costs in the event of failure. The right of a successful defendant to costs in that event is arguably subordinate to the plaintiff’s right to be heard. Strong social policy considerations favour the use of Courts as an accessible forum for the resolution of disputes and grievances of almost all kinds. Only where a clear impression can be formed that the plaintiff’s claim is altogether without merit – so that in the alternative it would be amenable to being struck out – would it be right for security to be ordered where to do so would bring the plaintiff’s claim to dead halt. In cases where the claim is being seriously misconducted (with undue complexity or expense), security orders short of effective termination of the claim may be appropriate. As the Court of Appeal said in McLachlan, “access to the Courts for a genuine plaintiff is not lightly to be denied”.
[100] My preliminary view of the merits of Haus’ causes of action, at least in defamation, and with it being reasonable to conclude its impecuniosity is due to the actions of the defendants, are together powerful considerations against an order for security.
Decision
[101] Accordingly, while the threshold for the ordering of security is satisfied, I conclude that none of the discretionary factors that go to whether security should in fact be ordered, favour the ordering of security against Haus.23 I decline the application.
Costs
[102] Mr Griggs confirmed that if the application for security were declined, there would be no application for costs.
Associate Judge Lester
22 At [23(b)] (footnotes omitted).
23 A S McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 (CA).
Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt (for plaintiffs)
Phoenix Law Limited, Wellington (for third, fourth, fifth and seventh defendants)
Copy to counsel:
C Griggs, Barrister, Wellington (for laintiffs)
S McGolgan, Barrister, Auckland (for first and second defendants)
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