Malik v Syed - [2024] NZCA 49

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA493/2023
[2024] NZCA 49

BETWEEN	AMIR FAZAL MALIK First Applicant TRINITY JOAN WILSON Second Applicant
AND	ZAINULABIDIN SYED Respondent

Court:	Gilbert and Thomas JJ
Counsel:	Applicants in person D A Jaques for Respondent
Judgment: (On the papers)	7 March 2024 at 9.30 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal against the judgment of Churchman J delivered on 30 August 2018 ([2018] NZHC 2278) is declined.
BThe application for an extension of time to appeal against the judgment of Isac J delivered on 30 June 2023 ([2023] NZHC 1676) is granted.

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REASONS OF THE COURT

(Given by Gilbert J)

This judgment responds to an application for an extension of time to appeal.

Background

The parties were previously engaged in business together for about six years, until 2016. After their relationship broke down, Mr Malik and his wife, Ms Wilson, published numerous defamatory statements about Mr Syed.
Mr Syed brought proceedings in defamation in the High Court and sought damages in the sum of $12 million. In those proceedings, Churchman J stated that Mr Malik and Ms Wilson had specifically admitted in their statement of defence that they had defamed Mr Syed, and that they did not plead that the publications were true.[1] In these circumstances, he granted Mr Syed’s application for judgment on liability.[2] However, the Judge declined to enter judgment on quantum. The Judge directed that full particulars of the claims against each of the defendants be provided and adjourned the question of quantum for later consideration.[3]
[1]Syed v Malik [2018] NZHC 2278 at [14]–[15].
[2]At [72].
[3]At [72]–[75].
After a delay of nearly five years, the issue of quantum was dealt with at a hearing in March 2023. On 30 June 2023, Isac J gave judgment in favour of Mr Syed in the sum of $225,000.[4] Mr Malik was found liable for the full award.[5] Ms Wilson was held jointly and severally liable with Mr Malik for $150,000.[6] This reflected her lesser role and culpability.[7]
[4]Syed v Malik [2023] NZHC 1676 at [51].
[5]At [50].
[6]At [52].
[7]At [50].
On 3 July 2023, three days after the judgment was delivered, Mr Malik contacted the registry of this Court advising that he wished to appeal and enquiring about the process for doing so. However, rather than filing an appeal at that stage, Mr Malik applied on behalf of himself and Ms Wilson for a retrial in the High Court. He says that a lawyer gave him this idea.
The matter came before Associate Judge Lester on 24 August 2023. The Judge advised Mr Malik by minute dated 25 August 2023 that the High Court had no jurisdiction to conduct a retrial or rehearing and his application was fundamentally flawed. The Judge advised that the appropriate course was to apply for an extension of time to appeal to this Court.
The present…

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 Malik v Syed

Details

AGLC: Malik v Syed [2024] NZCA 49
Case: [2024] NZCA 49
Decision Date: 7 March 2024 at 9.30 am

CaseChat Overview and Summary

This case involves an application for an extension of time to appeal against two separate judgments in defamation proceedings between Amir Fazal Malik, Trinity Joan Wilson, and Zainulabidin Syed. The first judgment, delivered by Churchman J on 30 August 2018, concerned liability for defamation. The second judgment, delivered by Isac J on 30 June 2023, concerned the quantum of damages awarded to Mr Syed. The Court of Appeal was required to determine whether extensions of time should be granted to appeal these judgments, assessing the application in accordance with the principles set out in Almond v Read.

The applicants, Mr Malik and Ms Wilson, had previously engaged in business with Mr Syed, which ended in 2016. After their relationship soured, Mr Malik and Ms Wilson published defamatory statements about Mr Syed. Mr Syed sought damages for defamation in the High Court. Churchman J granted Mr Syed's application for judgment on liability but deferred the question of quantum. After a lengthy delay, Isac J awarded Mr Syed damages of $225,000 in June 2023. Mr Malik sought to appeal both judgments, initially misapplying for a retrial in the High Court before correctly applying for an extension of time to appeal to the Court of Appeal. Mr Syed opposed the application, arguing that the applicants were not unaware of the time limits for appealing and that there was no merit in the proposed appeal.

In determining whether to grant the extension of time, the Court of Appeal considered the length of the delay, the reasons for it, the conduct of the parties, any prejudice to Mr Syed, and the significance of the issues raised by the proposed appeal. The Court found that it would not be in the interests of justice to grant an extension of time to appeal the 2018 liability judgment due to the lengthy delay and lack of a satisfactory explanation. However, the Court granted an extension of time to appeal the 2023 quantum judgment, finding that the delay was brief, explained, and unlikely to prejudice Mr Syed. The appeal from the quantum judgment could be determined on its merits.

The Court of Appeal declined the application for an extension of time to appeal the 2018 judgment of Churchman J but granted the application for an extension of time to appeal the 2023 judgment of Isac J. The decision allows Mr Malik and Ms Wilson to proceed with their appeal against the quantum of damages awarded to Mr Syed, while Mr Syed's judgment on liability stands.

Orders