Turner v Ikeda - [2020] NZHC 149

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1457

[2020] NZHC 149

BETWEEN
JACQUELINE ANNE VERONICA TURNER

Appellant

AND

KAZUFUMI IKEDA

Respondent

Hearing: 11 February 2020

Appearances:

T Bowler for Appellant

J Leenoh for Respondent

Judgment:

13 February 2020

JUDGMENT OF LANG J

[on appeal against dismissal of application for restraining orders under the Harassment Act 1997]

This judgment was delivered by me on 13 February 2020 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

TURNER v IKEDA [2020] NZHC 149 [13 February 2020]

[1] Ms Turner and Mr Ikeda own units in an apartment complex known as the Victopia Apartments. The complex is a 14 storey tower block containing 203 residential units in central Auckland.

[2] The affairs of the complex are administered by the elected committee of a body corporate incorporated under the Unit Titles Act 2010. At all times material to this proceeding Ms Turner was the Chair of the body corporate committee.

[3] The apartment complex was found to have significant weathertightness issues. For several years the body corporate was involved in litigation against parties it believed were responsible for these. The litigation was ultimately settled, and the complex is now in the process of being repaired.

[4] The remediation process brought Mr Ikeda into conflict with Ms Turner and other members of the body corporate committee. Ms Turner considered that several communications and statements he made to her between 2015 and 2017 amounted to harassment as that term is defined by the Harassment Act 1997 (the Act). She issued a proceeding in the District Court at Auckland seeking orders under the Act restraining Mr Ikeda from engaging in such conduct in the future.

[5] In a decision delivered on 28 June 2019, Judge G M Harrison dismissed Ms Turner’s claim.1 Ms Turner appeals against that decision.

The incidents that Ms Turner relied upon as constituting harassment

[6] Ms Turner alleged that Mr Ikeda engaged in specified acts of harassment by sending her abusive and offensive communications and emails between 2015 and 2017. First, she relied on a note Mr Ikeda left in her post box in 2015 describing her as “the cancer of Victoria”. She says this was particularly hurtful because her husband had recently died of cancer.

1 Turner v Ikeda [2019] NZDC 12240.

[7] Ms Turner also contended Mr Ikeda installed a camera on the windowsill of his unit that was directed towards another unit in the complex that she owned and had rented out. She says this unnerved the tenants of the unit and they moved out.

[8] Next, Ms Turner relied on emails Mr Ikeda sent to her on 17 and 22 July 2017 and 14 August 2017.

[9] The passage on which Ms Turner relied in the email dated 17 July 2017 was in the following terms:

6. Plaintiffs and Non-plaintiffs

Jacquie Turner and BCA Ltd as the BC Manager have been refusing…

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 Turner v Ikeda

Details

AGLC: Turner v Ikeda [2020] NZHC 149
Case: [2020] NZHC 149
Decision Date: 13 February 2020

CaseChat Overview and Summary

Ms Turner and Mr Ikeda are unit owners in the Victopia Apartments in Auckland. Ms Turner was the Chair of the body corporate committee that administers the affairs of the apartment complex. In 2019, she commenced proceedings against Mr Ikeda in the District Court seeking a restraining order against him under the Harassment Act 1997 (the Act). She alleged that he had engaged in a pattern of harassment against her in the period between 2015 and 2017. Judge Harrison dismissed the proceedings. Ms Turner appeals that decision. The appeal was heard by Lang J in the High Court at Auckland. Lang J held that the appeal must be dismissed. The incidents that Ms Turner alleged constituted harassment included a note left in her post box describing her as "the cancer of Victoria", an allegation that Mr Ikeda had installed a camera on his unit directed towards hers, and several emails he had sent to her. Ms Turner also alleged that Mr Ikeda told her to "watch out" on two occasions at a meeting of unit owners in August 2017. The Act defines "harassment" as a pattern of behaviour directed against a person that includes a specified act on at least two occasions within a period of 12 months. A person engages in a "specified act" if they do any of a number of things including making contact with that person by correspondence, or acting in a way that causes that person to fear for his or her safety. An act will not constitute harassment if it is done for a lawful purpose. Ms Turner accepted that Mr Ikeda was entitled to communicate with her about matters affecting the body corporate. She submitted, however, that the manner in which he communicated with her meant that his actions no longer had a lawful purpose. Rather, they were designed to intimidate and frighten her and persuade her to resign as Chair of the committee. Lang J held that the Judge was correct to dismiss the proceedings. He concluded that none of the acts on which Ms Turner relied amounted to harassment for the purposes of the Act. The note left in her post box was made in 2015 and therefore could not constitute a specified act for the purposes of the Act. The allegation that Mr Ikeda had installed a camera on his unit directed towards hers was improbable at best. The emails were lengthy and detailed and raised numerous issues relating to the remediation process. They were not directed solely at Ms Turner. Mr Ikeda's primary purpose in sending them was to ensure the committee knew what he thought of their performance. His language was strong and colourful but it was directed to the manner in which Ms Turner and her fellow committee members had conducted the affairs of the body corporate. It did not reflect a desire to cause Ms Turner to fear for her safety, and he did not consider it would have caused a reasonable person in her position to fear for her safety. Even if Mr Ikeda had said to Ms Turner that she needed to "watch out" at the meeting of unit owners, this would form the only specified act Ms Turner was able to prove. In the absence of another specified act within a 12 month period she could not establish harassment for the purposes of the Act. The appeal was dismissed. Mr Ikeda is entitled to costs on a category 2B basis together with disbursements as fixed by the Registrar.

Orders