Hotchin v Sheppard

Case [2012] NZHC 2527


IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-7120 [2012] NZHC 2527

BETWEEN  MARK STEPHEN HOTCHIN First Plaintiff

ANDERIC JOHN WATSON Second Plaintiff

ANDBRUCE SHEPPARD First Defendant

ANDTHE NEW ZEALAND SHAREHOLDERS ASSOCIATION INCORPORATED

Second Defendant

Hearing:         19 September 2012

Appearances: J G Miles QC and J A MacGillivray for Plaintiffs P J P Grace and N W Woods for First Defendant No appearance for Second Defendant

Judgment:      1 October 2012

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on   1 October 2012  at 4:00pm

pursuant to Rule 11.5 of the High Court Rules.

...................................

Registrar/Deputy Registrar

Solicitors:

Tompkins Wake (J A MacGillivray) , P O Box 258 Hamilton 3240, for Plaintiffs

Email:   jmacgillivray@tomwake.conz

Rice Craig (N W Woods) P O Box 72 440 Papakura, for First Defendant

Email:   rc@ricecraig.co.nz

Copy for:

J G Miles QC, P O Box 2302 Auckland 1140            Email:   miles@shortlandchambers.co.nz

Nathan Gedye, P O Box 2907 Auckland 1140           Email:   Nathan.gedye@xtra.co.nz
P J P Grace, P O Box 1144 Pukekohe 2340               Email:   p.grace@xtra.co.nz

D H McLellan, P O Box 4338 Auckland 1140           Email:   mclellan@shortlandchambers.co.nz

HOTCHIN V SHEPPARD HC AK CIV-2011-404-7120 [1 October 2012]

Background

[1]      In the present proceedings, the plaintiffs sue the first defendant for allegedly defamatory statements that he made about them, which are concerned with their involvement  in  the  collapse  of  the  finance  company,  Hanover  Finance  Ltd (Hanover), in 2008 and the widespread losses to the public that ensued from that event.

[2]      The first defendant, Mr Sheppard, is a chartered accountant.  He was at the relevant times the Chairperson of the New Zealand Shareholders’ Association (“NZSA”).  This organisation advocates for shareholders in the course of which its officers (including Mr Sheppard at the relevant time) make public comment in news media to regulatory authorities and others about matters of concern or interest regarding the operation and governance of companies.   I understand that the organisation also sees its role as exposing unfair and dubious practices that it perceives threaten the interests of shareholders in (principally) public companies.

[3]      The first defendant made a number of statements on television, radio and emails and as part of blogs which were severely critical of the plaintiffs.   It is obvious from the content of the statements the first defendant made that he had strong views on the subject of whether the proposed debt restructuring and moratorium that the plaintiffs had initiated in regard to the Hanover companies were in the best interests of the creditors of Hanover.  It was obviously his view that the debt restructuring proposal was largely to the advantage of the plaintiffs.   He particularly seemed to be incensed by the fact that any obligation to inject capital as part of a settlement with creditors was conditional only, and that the obligation to do so never became unconditional.   He referred to the plaintiffs as being involved in “malfeasances”.  As a result, the plaintiffs issued this proceeding.

[4]      The comments which  the plaintiffs sue on are said to have given…

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Hotchin v Sheppard [2012] NZHC 2527
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[2012] NZHC 2527
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CaseChat Overview and Summary

In the case of Hotchin v Sheppard, the plaintiffs, Mark Stephen Hotchin and Anderic John Watson, brought defamation proceedings against the first defendant, Bruce Sheppard, who was the Chairperson of the New Zealand Shareholders’ Association at the relevant time. The dispute centred around statements made by the first defendant, which were critical of the plaintiffs' involvement in the collapse of Hanover Finance Ltd in 2008 and the subsequent losses to the public. The plaintiffs alleged that the first defendant's statements defamed them by implying that they had dishonestly misled investors, were criminals, and had participated in GST fraud. The first defendant sought to establish that the plaintiffs had poor reputations and invoked section 30 of the Defamation Act 1992 to adduce evidence of past misconduct. The plaintiffs applied to strike out these particulars of misconduct, arguing that they were not relevant to the aspects of their reputation that the proceedings related to.

The court considered the scope and breadth of the meanings that were to be attached to the first defendant's statements, and the relevance of the proposed evidence of past misconduct on the part of the plaintiffs. The court held that the plaintiffs were bound by the meanings that they had attributed to the words pleaded in their statement of claim, and the defendant could only prepare to defend the proceeding on the basis of those meanings. The court also noted that references to reputation should be read as references to the relevant sector of the person's reputation which the proceedings bring into question. The court concluded that the insider trading allegations and the negative effect that they must have had upon the reputations of the plaintiffs would not inevitably be disregarded as irrelevant by the court when assessing the proposition that publication of the defamatory statements caused substantial diminishment of reputation. The court determined that the strike out application was to be dismissed.

The defendants made an application for an order for security for costs, which the plaintiffs accepted. The court considered the likelihood of the plaintiffs succeeding with their claim, the possibility of an order being made under section 43 of the Defamation Act, and the financial circumstances of the plaintiffs. The court concluded that an order for security for costs was justified and ordered that the plaintiffs pay security of $100,000, to be paid in two staggered instalments. The court also ordered that costs ought to lie where they fall.

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