Siemer v Stiassny

[2011] NZCA 106

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA826/2009
[2011] NZCA 106

BETWEEN  VINCENT ROSS SIEMER
Appellant

AND  MICHAEL PETER STIASSNY
First Respondent

AND  KORDA MENTHA FORMERLY FERRIER HODGSON
Second Respondent

Hearing:         2 November 2010

Court:             Glazebrook, Hammond and Arnold JJ

Counsel:         Appellant in person
J G Miles QC and P J L Hunt for Respondents

Judgment:      30 March 2011 at 12 pm

JUDGMENT OF THE COURT

A        The appeal is dismissed.

BThe appellant must pay costs to the respondents (jointly and severally) on a standard basis, Band B, and usual disbursements.  These disbursements are to include the actual costs of preparation and production of the case on appeal, if necessary as certified by the Registrar.

REASONS OF THE COURT

(Given by Hammond J)

Table of Contents

Para No
Introduction  [1]
Factual background  [3]
Procedural background prior to trial  [10]
The scope of this appeal: the procedural history since trial  [19]
The case and submissions on this appeal  [25]
The Judge’s approach to quantum  [30]
The correct approach to reviewing damages awards in defamation       [33]
Discussion
      The remedial scheme adopted by the High Court  [45]
      General damages - principles  [49]
      Aggravated damages- principles  [51]
      Exemplary damages - principles  [58]
      General damages – analysis  [67]
      Aggravated damages – analysis  [74]
      Exemplary damages – analysis  [75]
      Totality of the award – analysis  [78]
      Breach of contract  [89]
Conclusion  [91]

Introduction

1. In a judgment delivered on 23 December 2008, Cooper J found for the respondents that Mr Siemer had defamed them.[1]  He awarded the first respondent, Mr Stiassny, damages totalling $825,000 and the second respondent, Korda Mentha (formerly Ferrier Hodgson) damages of $75,000.  There was a further award to Korda Mentha of $20,000 for breach an agreement settling a dispute between the parties. 

   [1]      Korda Mentha v Siemer HC Auckland CIV-2005-404-1808, 23 December 2008.

2. In this appeal Mr Siemer challenges the quantum of the damages awards.  But before considering the principles upon which this Court is required to review those damages and the awards themselves, it is necessary to briefly
   re-traverse briefly the facts giving rise to the claim and to explain the scope of this appeal, which has been significantly constrained by a partially successful strike-out application to this Court.

Factual background

1. The following summary of the factual background relies substantially on the judgment of Cooper J.  As will be explained further below, the facts are unchallenged because of the way the appeal has come forward.

2. The paths of the parties to this proceeding first crossed when Mr Stiassny was appointed as the receiver of Paragon Oil Systems Ltd (Paragon), a company in which Mr Siemer was a shareholder and Managing Director.  The receivership was in the nature of a “caretaker administration” to keep the business on foot while an impasse between disputing shareholders, including Mr Siemer, was addressed.  Proceedings in the High Court as to that dispute were resolved in Mr Siemer’s favour.[2]  The receivership was terminated.  Solvency was not…