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Leishman v Levie

Leishman v Levie

Case [2018] NZHC 721 17 April 2018

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-1875

[2018] NZHC 721

BETWEEN
CRAIG ANDREW LEISHMAN

Plaintiff

AND

ROGER HENRY LEVIE

First Defendant

HOME OWNERS AND BUYERS ASSOCIATION OF NEW ZEALAND INCORPORATED

Second Defendant

Hearing: 17 April 2018

Appearances:

J B Orpin-Dowell and S F Powrie for the Plaintiff P Rzepecky and N Lawrence for the Defendants

Judgment:

17 April 2018

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Grove Darlow & Partners (J B Orpin-Dowell/S F Powrie), Auckland, for the Plaintiff Wynn Williams (R Hern/N Lawrence), Auckland, for the Defendants
Counsel:
Philip Rzepecky, Auckland, for the Defendants

LEISHMAN v LEVIE [2018] NZHC 721 [17 April 2018]

[1] The defendants apply for an order under r 8.38 of the High Court Rules requiring the plaintiff to give verified answers to their notice of 22 September 2017 to answer interrogatories. Initially the plaintiff gave answers, but they were not verified. The plaintiff answered only some of the interrogatories. The plaintiff has now filed and served verified answers but has still not answered all the questions. The defendants no longer ask the plaintiff to answer some of the interrogatories. I am required to give rulings on seven. This is a defamation proceeding. Defamation proceedings have distinct features which bear on questions of relevance, pleadings, discovery and interrogatories.

[2] Mr Leishman is the director and principal shareholder of Boutique Body Corporate Ltd, which provides secretarial, advisory and administrative services to body corporates under the Unit Titles Act 2010. It has assisted them in dealing with building defects issues, including leaky building syndrome, and has assisted in proceedings to recover damages for remedial works for leaky buildings.

[3] The second defendant, HOBANZ, is the Home Owners and Buyers Association of New Zealand. It is an incorporated society which also provides consultancy and advisory services to bodies corporate. Amongst other things it also assists them in dealing with building defect issues including proceedings to recover damages for remedial works. Mr Levie is the chief executive officer of HOBANZ.

[4] The Bella Vista apartments are a unit title complex at Te Atatu, Auckland. Mr Leishman’s company, Boutique Body Corporate Ltd acts as the body corporate secretary for the Bella Vista apartments.

Background

[5] The background to this case lies in litigation to deal with leaky buildings, particularly litigation for unit title developments. Many apartment blocks have suffered watertightness defects, and that has led to much litigation by owners against developers, contractors and local authorities. While some cases go to trial, most of

them settle. For lawyers, leaky building litigation is specialist work. Most leaky building cases are taken by a small group of law firms. One of them is Grimshaw and Co, which has acted for many bodies corporate. There is also a small number of specialists—building surveyors, quantity surveyors and related experts—who are routinely called upon to give evidence for parties in leaky building litigation. Cove Kinloch is one such consultancy.

[6] In…

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 Leishman v Levie

Details

AGLC: Leishman v Levie [2018] NZHC 721
Case: [2018] NZHC 721
Decision Date: 17 April 2018

CaseChat Overview and Summary

Leishman v Levie [2018] NZHC 721 is a defamation case where the plaintiff, Craig Andrew Leishman, sued the defendant, Roger Henry Levie, for defamation. Leishman's company, Boutique Body Corporate Ltd, provides secretarial, advisory, and administrative services to body corporates, including dealing with building defects issues. Levie is the chief executive officer of the Home Owners and Buyers Association of New Zealand (HOBANZ), which also provides consultancy and advisory services to bodies corporate. Leishman sued Levie and HOBANZ for defamation, claiming that an email sent by Levie to three owners in the Bella Vista apartments defamed him. The defendants applied for an order requiring Leishman to give verified answers to their notice of 22 September 2017 to answer interrogatories. The plaintiff answered only some of the interrogatories. The court was required to give rulings on seven interrogatories. The court upheld Leishman's objections on the grounds of irrelevance and found that the defendants could not interrogate Leishman about matters outside the narrow truth defence which was confined to justifying the meaning in paragraph 19(c) of the statement of claim. The court also found that the defendants could not seek discovery and interrogatories to find out whether they could plead truth for meanings which they had not yet sought to justify. The plaintiff has substantially succeeded and costs follow the event. The defendants are entitled to a discount because they were justified in objecting to the format of Leishman's initial answers. Costs are category 2 in favour of the plaintiff, but with a reduction of 20 per cent on account of that aspect.

Orders