District Court New South Wales Medium Neutral Citation: Crespin v Channel Seven Sydney Pty Ltd [2015] NSWDC 24 Hearing dates: 30 January 2015 Decision date: 30 January 2015 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Defendants' objection to imputations 5(b), 5(l), 7(b) and 7(l) on the basis of form ("callous person") dismissed; these imputations will go to the jury. (2) Imputations 5(d) ("conned") and 5(f) ("swindled"), and similarly 7(d) and 7(f), are to be pleaded as alternatives. (3) Imputations 5(g) and 7(g) are struck out with leave to replead. (4) Imputations 5(e) and 7(e) are struck out with leave to replead. (5) Imputations 5(h) and 7(h) are struck out with leave to replead by replacing "falsely" with "hypocritically". (6) Imputations 5(i) and 7(i) will go to the jury. (7) Imputations 5(j), 5(r), 7(j) and 7(r) will go to the jury (objections withdrawn). (8) Imputations 5(k) and 7(k) will go to the jury. (9) Require the plaintiffs in the redrafted statement of claim to include full particulars of the "multiple times" promotions for Today Tonight made between 7 and 12 November 2013. (10) Any claim for "actual or special damages" must be fully particularised in the amended statement of claim. (11) Amended Statement of Claim in 21 days. (12) Each party pay their or its own costs. (13) Matter stood over to Thursday 26 February 2015 at 2:00pm. Catchwords: TORT - defamation - pleading - form and capacity of imputations - no issue of principle Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 14.28 and 28.2 Cases Cited: Ahmed v Harbour Radio Pty Ltd (No 2) [2011] NSWSC 20 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Bass v TCN Channel Nine Pty Ltd [2006] NSWCA 343 Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380 Berezovsky v Forbes [2001] EWCA Civ 1251 Coleman v John Fairfax Pty Ltd [2003] NSWSC 564 Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Dent v Macquarie Radio Network Pty Ltd [2006] NSWSC 186 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 Gibson v Nationwide News Pty Limited [2007] NSWCA 284 Habib v Radio 2UE Pty Ltd [2009] NSWCA 231 Habib v Radio 2UE Pty Ltd [2010] NSWSC 244 Habib v Radio 2UE Pty Ltd (No 4) [2012] NSWDC 12 John Fairfax Publications Pty Ltd v Blake; David Syme v Blake (2001) 53 NSWLR 541 Laundy v Bourne (Supreme Court of New South Wales, Levine J, 17 April 1998) Lighthouse Forward Planning Pty Ltd v Queensland Newspapers Pty Ltd [2014] QSC 217 Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 McGrane v Channel Seven Sydney Pty Ltd [2012] QSC 133 Miller v Associated Newspapers Ltd [2012] EWHC 3721 (QB) Polias v Ryall [2013] NSWSC 1267 Scott v Jones & Anor [2002] NSWSC 210 Singleton v Ffrench & Ors (1986) 5 NSWLR 425 Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350 Waller v Nationwide News Pty Ltd [2011] NSWSC 611 Younan v Nationwide News Pty Ltd [2013] NSWCA 335 Young v Munro (Supreme Court of New South Wales, Levine J, 12 May 1995) Category: Procedural and other rulings Parties: First Plaintiff: Liz Crespin Second Plaintiff: Rob Franklin First Defendant: Channel Seven Sydney Pty Ltd Second Defendant: Glenn Connley Representation: Counsel: Plaintiffs: Mr R Rasmussen Defendants: Mr R Jedrzejczyk Solicitors: Plaintiffs: Sanford Legal Defendants: Johnson Winter & Slattery File Number(s): 2014/321547 Judgment 1. These are reasons for the rulings I made on 30 January 2015 in a separate trial pursuant to r 28.2 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") as to the imputations pleaded, and pursuant to UCPR r 14.28 in relation to the particulars and pleadings in the statement of claim. 2. The matters complained of were published as a television programme, followed by an essentially identical publication on the Internet website. As to the Today Tonight broadcast of 12 November 2013 ("the television broadcast"), the following imputations are pleaded to have been conveyed and defamatory of the plaintiffs in paragraph 5 of the statement of claim (see Annexure A): (a) The First Plaintiff failed to honour an agreement to buy Karyn Zerkel's house (lines 1,2, 12, 18-31) (b) The First Plaintiff is a callous person (6-8, 74-75). (c) The First Plaintiff reneged on her contractual obligations to pay Karyn Zerkel $209,000 for her house by the Tamar River but continued to live in it at Karyn's expense and while Karyn fell further and further behind with her mortgages (37-55). (d) The First Plaintiff swindled Karyn Zerkel (1, 2, 12, 18-31). (e) The First Plaintiff is a thief who stole Karyn Zerkel's home (1, 2, 12, 18-31). (f) The First Plaintiff conned Karyn Zerkel out of her house (1, 2, 12, 18-31). (g) The First Plaintiff is a cheat (1, 2, 12, 18-31). (h) The First Plaintiff falsely accused the Channel Seven reporter of trespassing (66- 67). (i) The First Plaintiff is a ratbag (77). (j) The First Plaintiff illegally squats and occupies a house which she does not own and refuses to pay rent (2-77). (k) The Second Plaintiff hijacked a beautiful waterside property after failing to honour an agreement to buy it (2, 4-8, 22-24, 29-30, 37-39, 41-63, 68-75, 112-113). (l) The Second Plaintiff is a callous person (6-8, 74-75). (m) The Second Plaintiff reneged on his contractual obligations to pay Karyn Zerkel $209,000 for her house by the Tamar River but continued to live in it at Karyn's expense and while Karyn fell further and further behind with her mortgages (37-55). (n) The Second Plaintiff swindled Karyn Zerkel (1, 2, 12, 18-31). (o) The Second Plaintiff is a thief who stole Karyn Zerkel's home (1, 2, 12, 18-31). (p) The Second Plaintiff conned Karyn Zerkel out of her house (1, 2, 12, 18-31). (q) The Second Plaintiff is a cheat (1, 2, 12, 18-31). (r) The Second Plaintiff illegally squats and occupies a house which he does not own and refuses to pay rent (2-77). 1. Apart from line differences, the imputations pleaded to arise from the website publication are the same (and are set out at paragraph 7 of the statement of claim). The text of both these publications is set out as a schedule to this judgment. 2. A further series of "promotion" publications (the text for which is not provided, although imputations are pleaded) is set out in paragraphs 8 – 9 of the statement of claim. These claims, which cannot be the subject of rulings today because the text of each of the matters complained of has not been set out, are dealt with in more detail below. The relevant principles 1. I note the principles relevant to the court's task in determining a capacity objection as a separate question, as well as on a strike out application under r 14.28 UCPR. 2. The principles for determining objections to capacity are explained in Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at [6], Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 and Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [135] – [136], where the court held that the determination of capacity is an issue of generosity and not of parsimony, as well as being a "matter of impression … the impression is not of what the words mean but of what a jury could sensibly think they meant" (citing Berezovsky v Forbes [2001] EWCA Civ 1251 at [16]). 3. Where the basis of the objection is one of form, the requirement is that the imputation must specify the act or condition attributed to the plaintiff by the matter complained of with sufficient clarity to enable the defendants to know the case they have to meet: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135; Younan v Nationwide News Pty Ltd [2013] NSWCA 335 at [20]. 4. The imputations the subject of challenge can be dealt with in groups, as they are asserted to arise in both the publications the subject of these rulings, and in respect to each of the two plaintiffs. Imputations 5(b), 5(l), 7(b) and 7(l) – "callous person" 1. The defendants submit that this imputation is defective in form because the use of the words "callous person" in the imputation is "insufficiently precise" (letter from Johnson Winter & Slattery dated 26 November 2014). 2. Imputations using the words "callous" or "callousness" have been pleaded in many other defamation cases without challenge (see, for example, Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380). In Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350 at [194] Beech-Jones J considered, but did not deal with, a submission that an imputation of "callous disregard" was not conveyed because the conduct in question did not rise to that standard. However, that is not the submission here. The defendants do not challenge the capacity of the plaintiffs' attitude to the homeowner's predicament (which, in the first plaintiff's case, included laughing about it) to give rise to an imputation of conduct of this kind; the complaint is that the word "callous" itself is too vague and imprecise in meaning to be used in the imputations. 3. The nature of the imprecision of "callous" was unexplained. I was not provided with a dictionary definition or any other information, such as philological or linguistic analysis or theory, to support the submission of imprecision. 4. An imputation of being callous must be viewed in the context of the matter complained of. In the present case, the publication refers to the course of conduct of both the plaintiffs, and their asserted disregard for the distress of the homeowner (see in particular lines 88 – 113). I am satisfied that the use of the word "callous" in that context is not defective in form. 5. One of the submissions made by the defendants was that they were uncertain what the case to meet on this imputation would be, particularly in relation to the second plaintiff. This final portion of the matter complained of refers to the conduct of both plaintiffs, and while the second plaintiff is not shown laughing, unlike the first defendant, I am satisfied that there is sufficient for such an imputation to go to the jury, although the capacity issue for the second plaintiff is "borderline" (Coleman v John Fairfax Pty Ltd [2003] NSWSC 564 at [9] per Levine J). 6. The word "callous" is thus neither ambiguous nor uncertain in meaning, and the imputation in question is capable of being conveyed in relation to both plaintiffs. These imputations will go to the jury. Imputations 5(d), 5 (n), 7(d) and 7(n); Imputations 5 (e), 5 (o), 7(e) and 7(o); Imputations 5(f), 5(p), 7(f) and 7(p); Imputations 5(g), 5(q), 7(g) and 7(q) 1. These imputations use a variety of terms ("swindled", "thief", "conned", "cheat"), in imputations of act and condition, in relation to each of the plaintiffs. These words appear to have been drawn at random from a thesaurus for the purpose of ascribing every kind of act of dishonesty attributable to the plaintiffs' conduct. The problem is whether they differ in substance and, if so, whether the presence or absence of a particular element means that one or more should be pleaded as fallbacks to the others. 2. Both parties, despite noting the warnings of the Court of Appeal in Singleton v Ffrench & Ors (1986) 5 NSWLR 425 concerning the taking of an excessively legalistic approach, addressed me as to the elements of the relevant elements in the criminal offences of swindling, theft, cheating and being a conman. The plaintiffs submitted that the difference between the imputations of "swindled" and "con" is that one is asserted to contain a mental element that the other lacks. Thus, "swindle" (for example, a business swindle) does not require the additional element of abuse of confidence and personal trickery that is imparted by the word "con" (which word is derived from "confidence", according to the extract from the Macquarie Dictionary handed up by the defendants' counsel). The defendants submitted that none of these imputations were conveyed and that if they were, they did not differ in substance. 3. The first problem is that the ordinary reasonable reader may not be alive to such fine legal nuances between these words. The second problem is that, if "swindle" and "con" do have the different meanings submitted by the plaintiffs, they cannot both arise, as the presence or absence of the element of confidence means that one or the other must capture the sting. 4. I am satisfied, on the low bar applicable to capacity arguments, that imputations of "swindle" and "con" arise, but I accept the defendants' submission that they cannot both arise if one involves a mental element of what Mr Rasmussen called a "breach of confidence" and the other does not. The imputations containing these meanings should therefore be pleaded as alternatives or as a fallback to each other. 5. The imputations of condition (as opposed to acts) may similarly need to be pleaded as alternatives. In their present form, the imputations of being a "cheat" and a "thief" do not reflect these, and the use of these other terms will add to the confusion at trial. 6. I have struck out these imputations with leave to replead to enable these imputations to be reformulated. If the repleaded imputations are of being a swindler and a conman (or conwoman), in order to fit in with the acts pleaded, they should similarly be pleaded in the alternative. Imputations 5(h) and 7(h) – "falsely" 1. During argument the plaintiffs were granted leave to amend to plead "hypocritically" in place of "falsely". 2. Objections to imputations 5(j), 5(r), 7(j) and 7(r) were withdrawn. Imputations 5(i) and 7(i) – "ratbag" 1. The word "ratbag", described in Merriam's Online Dictionary as a "chiefly Australian" word, means a "despicable person", according to dictionary definitions, including Wiktionary. Use of the word is also helpfully reviewed in the Sydney Morning Herald (Damien Murphy, "Death of the Ratbag", 23 April 2005). As these dictionary definitions and the Sydney Morning Herald note, "ratbag" is a word capable of being used in a non-pejorative and/or humorous sense, much like the similarly Australian slang word "bludger". 2. The defendants submit that the word "ratbag" is "insufficiently precise", and their submissions appear to hint that "ratbag" is impermissible as vulgar abuse as well as impermissible in form. As "ratbag" has never been the subject of challenge in an imputations ruling, I have been guided by other courts' determination of what those courts have described as "Australian slang" words such as "rort", "bludger" and "conman". 3. "Rort" is commonly used in imputations. In Gibson v Nationwide News Pty Limited [2007] NSWCA 284 the NSW Court of Appeal dismissed an appeal in relation to an imputation involving the word "rort". The issue there was not the form of the imputation, but the fact that the jury asked for a dictionary definition of the word. McClellan CJ at CL noted the "Australian slang" nature of the word at [9]. 4. The use of "bludger" in an imputation is similarly accepted as unobjectionable. An imputation that the plaintiff was a bludger was permitted to go to the jury by Levine J in Laundy v Bourne (Supreme Court of New South Wales, Levine J, 17 April 1998), and again in Scott v Jones & Anor [2002] NSWSC 210 at [24]. It is of interest to note that, in the jury trial in Habib v Radio 2UE Pty Ltd, the imputation "the plaintiff is a bludger" (which went without objection to the jury) was subsequently found by the jury to be conveyed, but not defamatory: Habib v Radio 2UE Pty Ltd [2010] NSWSC 244 at [42] and [116]; Habib v Radio 2UE Pty Ltd (No 4) [2012] NSWDC 12 at [246]. (As to the defendants' ability to meet the necessary particulars of justification for such a term, see Dent v Macquarie Radio Network Pty Ltd [2006] NSWSC 186 at [19] – [20].) I also note the helpful judgment of Levine J in Young v Munro (Supreme Court of New South Wales, Levine J, 12 May 1995), rejecting similar complaints about "conman", "scam" and "racket". "Ratbag" is similarly a word of real meaning, as well as being capable (like "bludger") of non-defamatory use, and should not therefore be regarded as a term of vulgar abuse. 5. Some decisions concerning the use of slang in imputations appear to be in conflict. For example, in Ahmed v Harbour Radio Pty Ltd (No 2) [2011] NSWSC 20, Simpson J refused to permit the plaintiff to use the slang word "grub" in an imputation. Her Honour relied upon Bass v TCN Channel Nine Pty Ltd [2006] NSWCA 343 at [5] – [6], where the word "shonky" had been permitted to go to the jury. (I note, however, that while Hunt A-JA expressed concern at the use of this word, on the basis that it had been drawn from the matter complained rather than that it was slang, the fact remains that the case went to the jury with this imputation without incident or difficulty, and that its use did not impede the findings on appeal.) 6. However, an explanation of these apparently different results may be that courts have avoided a "one size fits all" approach to slang words. Viewed in this context, the word "grub" is a pejorative slang word, of the same kind as "scumbag", a word that, although superficially similar to "ratbag", can only connote abuse. In Polias v Ryall [2013] NSWSC 1267 McCallum J refused to permit the pleading of any imputation that the plaintiff was a "scumbag", where the matter complained of was a Facebook posting ("Scumbags gonna scum"), on the basis that it was vulgar abuse (at [30] – [32]). 7. Although no submission that "ratbag" is vulgar abuse was put to me (or, for that matter, to Simpson J in Ahmed v Harbour Radio Pty Ltd (No 2) when considering "grub"), I am satisfied that this is a word which has, with the passage of time, come into such wide public usage as to have general acceptance and even (as some dictionaries, and the Sydney Morning Herald, both note) to be capable of use in a non-pejorative way. 8. Everything depends upon the context in which the word is used; whether "ratbag" could amount to vulgar abuse, or is defamatory, would depend upon the rest of the publication, as was the case in Habib v Radio 2UE Pty Ltd. Unlike Polias v Ryall, where the context was the highly informal language of social media, the matters complained of in these proceedings relate the story of a media investigative report. Content (namely the content of the matter complained of) explains and shapes form (namely the word used in the imputation). 9. The defendants next submit that the use of a word from the matter complained of, while permissible in some circumstances, does not encapsulate the sting of the libel (see the cases discussed in Waller v Nationwide News Pty Ltd [2011] NSWSC 611). 10. The use, in an imputation, of a word from the matter complained of may be permitted in appropriate cases: Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213; John Fairfax Publications Pty Ltd v Blake; David Syme v Blake (2001) 53 NSWLR 541 at [52] – [54]. The question is whether the use of a word from the publication is appropriate to encapsulate the sting of the libel. Should the plaintiffs be obliged to reformulate the word "ratbag" in order to identify the condition pleaded, or is this an example of an imputation that "X is disgusting" (Drummoyne Municipal Council v Australian Broadcasting Corporation at 137)? 11. In this particular context, the defamatory sting of "ratbag" is clear. The import of the word, in the context of each of the matters complained of, is that persons who have behaved in this way are despicable. As the context is clear, the plaintiffs ought not to be obliged to provide what Simpson J in Ahmed v Harbour Radio Pty Ltd (No 2) at [23] called a "translation" of the word into proper English. Additionally, the term "ratbag" is widely understood in the general community, whereas the word "grub", used in Ahmed v Harbour Radio Pty Ltd (No 2), would not have had a similarly widely understood meaning. 12. Does "ratbag" differ in substance from an imputation of being "callous"? Although this challenge was not raised by the defendants, I am of the view that there is sufficient difference in meaning for both imputations to go to the jury, and note similar findings in Habib v Radio 2UE Sydney Pty Ltd [2010] NSWDC 244 at [116], where imputations of "leech" and "bludger", despite their similarity, were allowed to go to the jury. Having regard to the Court of Appeal's warning that imputations should be permitted on a generous, rather than a parsimonious, basis, I shall permit the plaintiffs to plead both imputations. 13. Additionally, the defendants submit that only the first plaintiff is referred to as a "ratbag", and she is called "a bit of a ratbag", rather than a "ratbag", and the allegation is restricted to the first plaintiff. 14. However, lines 88 – 113 contain further claims about the plaintiffs' conduct towards Ms Zerkel, which make it clear that Ms Zerkel is actually worse off than the victim of the other house purchase "scam" outlined in the matters complained of. That portion of the matter complained of, which follows the story about other persons clearly identified as ratbags, clearly suggests that the conduct of both plaintiffs has led to a worse result. Reasonable minds may differ as to whether that relates to both plaintiffs, and whether this means that one or both of them is a ratbag or only "a bit of a ratbag". 15. These imputations will accordingly go to the jury in relation to each of the plaintiffs. Imputations 5(k) and 7(k) 1. The name of the segment and the opening words both specifically use the word "hijack". The meaning is clear. Notwithstanding the undesirability of a plaintiff merely repeating the words of the matter complained of, this is a clear example of a sting that the plaintiffs ought not to be obliged to parse and analyse in order to identify a less colourful or more accurate term. It is clear from the context that the word is a metaphor, used for its alliterative effect, and not a literal accusation of hijacking. 2. I am puzzled as to why this imputation is attributed only to the second defendant, while the less dramatic imputation (a) (failing to honour an agreement) is pleaded for the first plaintiff, rather than an imputation in the form of 5(k) and 7(k) – or vice versa. The use of these variants tends to confirm that these imputations have not been drafted with care, and may warrant further attention in the redrafted statement of claim. 3. These imputations will go to the jury for each of the plaintiffs. Inadequate particulars of publication 1. In paragraphs 8 and 9 of the statement of claim, the plaintiffs assert that between 7 and 12 November 2013 the defendants published "multiple times defamatory promotions" for the plaintiffs "referred to in paragraph 4 above". This is followed by the pleading of imputations that each of the plaintiffs is a swindler, a thief and a cheat. 2. These imputations were not the subject of challenge, as the text of the promotions was not included. The additional problem of a plaintiff pleading one set of imputations from "multiple" imputations has thus not been addressed. The unsatisfactory nature of this pleading is such that the defendants currently seek only an order striking out this paragraph and its replacement with the text of these promotions, followed by imputations for each. Alternatively, if the promotions are relied upon for damages only, that must be specified. 3. The problems caused by plaintiffs who refer to additional publications in this way without identifying whether these additional publications are relied upon in relation to liability, or for damages only, are starkly illustrated by the confusion caused in Habib v Radio 2UE Pty Ltd [2009] NSWCA 231. The revised pleading must set out full particulars of these publications, including the date, content and imputations, and identify with clarity whether these publications are relied upon in relation to liability or for damages only – an issue the plaintiff failed to clarify in the s 7A jury trial before Kirby J in Habib v Radio 2UE Pty Ltd. Internet particulars 1. Although only noted in passing, and not the subject of orders, I draw the attention of the plaintiffs, when repleading the statement of claim, to the need for Internet publications to include particulars of downloading. The claim for "general actual and special damages" 1. The bringing of fanciful or unparticularised claims for special damages in defamation proceedings is viewed seriously by the court: Lighthouse Forward Planning Pty Ltd v Queensland Newspapers Pty Ltd [2014] QSC 217 at [42]–[49]. Prolonged failure to provide adequate particulars may result in the claim being dismissed: McGrane v Channel Seven Sydney Pty Ltd [2012] QSC 133; Miller v Associated Newspapers Ltd [2012] EWHC 3721 (QB). 2. Mr Rasmussen submitted that these were early days for the litigation, and the plaintiffs needed time to put these particulars together. In due course an outline of the particulars in question could be provided. 3. I do not accept this submission. The broadcast was published on 12 November 2013, and any claim for damages following such a broadcast (this being the most likely source) should be known to the plaintiffs by early 2015. The nature of any such loss is not immediately apparent from the pleading, and the defendants are entitled to know the case they are to meet. Costs 1. Although the plaintiffs were more successful than the defendant in relation to the imputations, three factors are of particular relevance as to costs. 2. The first is that the pleading of the "multiple" defamatory publications in paragraphs 8 – 9 and the failure to provide particulars of "general actual and special damages" (whatever that term may mean) fall well short of the standard of pleadings to be expected in a specialist list. The second is that the objections raised by Johnson Winter & Slattery in their correspondence contained many sensible proposals, and should have resulted in a redrafted statement of claim, particularly in relation to paragraphs 8 – 9 and the damages claim. The third is that the letter in response to Johnson Winter & Slattery, which says little more than "we disagree" in relation to the imputations, and that the particulars of damages will be supplied "prior to the trial", was of no assistance to me in the determination of the issues in dispute. 3. Taking the above into account, the appropriate order is that each party should pay their own costs. Orders 1. Defendants' objection to imputations 5(b), 5(l), 7(b) and 7(l) on the basis of form ("callous person") dismissed; these imputations will go to the jury. 2. Imputations 5(d) ("conned") and 5(f) ("swindled"), and similarly 7(d) and 7(f), are to be pleaded as alternatives. 3. Imputations 5(g) and 7(g) are struck out with leave to replead. 4. Imputations 5(e) and 7(e) are struck out with leave to replead. 5. Imputations 5(h) and 7(h) are struck out with leave to replead by replacing "falsely" with "hypocritically". 6. Imputations 5(i) and 7(i) will go to the jury. 7. Imputations 5(j), 5(r), 7(j) and 7(r) will go to the jury (objections withdrawn). 8. Imputations 5(k) and 7(k) will go to the jury. 9. Require the plaintiffs in the redrafted statement of claim to include full particulars of the "multiple times" promotions for Today Tonight made between 7 and 12 November 2013. 10. Any claim for "actual or special damages" must be fully particularised in the amended statement of claim. 11. Amended Statement of Claim in 21 days. 12. Each party pay their or its own costs. 13. Matter stood over to Thursday 26 February 2015 at 2:00pm. ********** Annexure A 1. Today Tonight - Channel 7 -12 November 2013 2. TITLE (FADE IN): "HOUSE HIJACK" 3. PRESENTER (KAPALOS): 4. But we begin with a couple who have hijacked a beautiful waterside property after [sic] 5. failing to honour an agreement to buy it. 6. Liz Crispin and her partner haven't paid a cent since March but Liz seems to find the [sic] 7. whole thing hilarious while the owner who was forced to sell after a horrific car [sic] 8. accident goes slowly broke. 9. Glenn Connley reports. 10. KARYN ZERKEL: 11. I had... urn...a very severe head injury...urn...I cracked open this orbit of my eye [sic] 12. and so that I am almost blind in my right eye now. 13. REPORTER (CONNLEY): 14. Karyn Zerkel's had a tough few years. 15. ZERKEL: 16. Broke my back quite severely...and at T3 and T4 17. CONNLEY: 18. First there was the car accident, run off the road by a log truck. 19. ZERKEL: 20. He came over the hill on my side of the road and that's all I remember. 21. CONNLEY: 22. Facing years of rehab she was forced to leave her idyllic Tasmanian hideaway in the [sic] 23. sleepy hamlet of Clarence Point. She put it on the market and bought a tiny [sic] 24. bungalow in Melbourne. 25. ZERKEL: 26. It's just put a constant pressure on my life... to the point where I could lose both sic] 27. houses; I could definitely lose this one. 28. CONNLEY: 29. But all that pales into insignificance compared to the moment Karyn befriended this [sic] 30. woman - Liz Crispin. 31. [sic] 32. ZERKEL: 33. We met walking on the beach and we got to know each other with....the dogs [sic] 34. together... and that sort of thing and had the odd coffee together and they asked me [sic] 35. out for dinner a couple of times. 36. CONNLEY: 37. Karyn told us that after two failed attempts to sell the house, Liz convinced Karyn to [sic] 38. sell it to her and partner Rob Franklin, and that they agreed on a price of $255,000. 39. Karyn says Liz, a wannabe lawyer, even arranged to draw up a contract of sale. 40. KARYN: 41. Over a period of 2 years they would be paying monthly into 2 accounts that I [sic] 42. have...um...and at the end of that time, pay a lump sum to finalize...the [sic] 43. agreement...the sale. 44. CONNLEY: 45. How much did they owe you and when was it due to be paid? 46. KARYN: 47. 48. They owed me $209,000 and it was due to be paid in March, when the contract [sic] 49. finalized. 50. CONNLEY: 51. But that's when things turned sour; instead of settling up, Liz and Rob stopped 52. paying. 53. For the past 8 months they have been sitting pretty, squatting by the beautiful Tamar [sic] 54. River on the aptly named Sunset Boulevard, with their dogs and sports car, living it [sic] 55. up at Karyn's expense, while Karyn falls further and further behind with both [sic] 56. mortgages. 57. CONNLEY (yells out from outside front closed gate) 58. Are you going to pay for the house Liz? 59. I'm glad you think it is funny because the actual owner is going to lose her house... 60. CONNLEY TO ZERKEL: 61. Do you fear that they'll repossess this house? 62. ZERKEL: 63. Oh absolutely...yeah...and poss...this one and that one, I mean at the moment I [sic] 64. actually don't own either of them. 65. [sic] 66. CONNLEY: 67. And how's this for irony? When we arrived to pose a few polite questions we're [sic] 68. accused of trespassing. 69. Liz calls the police. 70. CONNLEY (yells out to Liz from the roadside 71. Why are you staying in a house that ah...you don't own, you're not paying any rent? 72. CONNLEY: 73. Not surprisingly Tassie's finest had little time for Liz Crispin's showboating. 74. CONNLEY YELLS OUT TO LIZ outside gate 75. You think it's funny? The person who you stole this from is going to lose her home 76. Liz, and you're laughing...really classy. 77. CONNLEY: 78. Liz might be a bit of a ratbag, but at least she didn't carry on like this lot…… The [sic] 79. infamous Assad family took over this Gold Coast mansion in 2009. 80. They too had an agreement to buy, but their cheque bounced - they stayed anyway. 81. (Shouting) 82. After trashing the house, smashing 2 of our cameras, and assaulting our reporter [sic] 83. they eventually moved out. 84. They'd done it before, by the way, and surprise, surprise they did it again, albeit with [sic] 85. fewer fireworks in Sydney 86. REPORTER WITH CAMERA: 87. Don't touch the camera...do not touch the camera……don't touch the camera.... 88. CONNLEY: 89. The Gold coast owner was eventually able to sell, something Karyn can only dream [sic] 90. of. 91. KARYN: 92. I've been conned completely. 93. She placed a caveat on my property, which means I can... I can't sell it to anyone at [sic] 94. this point in time...um...so I can't just tell them to get out of my house and you know 95. get somebody else in there or put it on the market. 96. ROSS (SON): 97. Yeah, she's brave. She's very determined. She's struggled. 98. CONNLEY: 99. Karyn's son Ross is deaf; he's been caring for his mum since the accident. 100. CONNLEY TO ROSS: 101. Ross, with everything Mum's been through, do you feel like this is kicking her when 102. she's down? 103. ROSS: 104. Yeah pretty much, it's... I just want to get them out of there. 105. I just want to get rid of them full stop so we can actually try and move ahead with our [sic] 106. life and sell the house and do it the way mum wants to. 107. CONNLEY: 108. If they're watching this, what would you say to them? 109. ZERKEL: 110. Get out...huh...just get out cos, I'm coming to get you! 111. KAPALOS: 112. Glen Connelly there and Karyn Zerkel's lawyer is desperately trying to negotiate a [sic] 113. settlement with Liz Crispin and Rob Franklin. We'll let you know how it all pans out. 114. FINISH ********** Annexure B Squatting nightmare on Sunset Boulevard One woman's idyllic sleepy hamlet has turned into a nightmare after a move turned sour. Karyn Zerkel has had a tough few years. First there was the car accident - run off the road by a log truck. Facing years of rehab, she was forced to leave her idyllic Tasmanian hideaway in the sleepy hamlet Of Clarence Point. She put it on the market and bought a tiny bungalow in Melbourne. More stories from Today Tonight However, that pales into insignificance compared to the moment Karyn befriended Liz Crispin. "We met walking on the beach and we got to know each other, with the dogs together and that sort of thing; had the odd coffee together and they asked me out for dinner s couple of times," Karyn said. After two failed attempts to sell the house, Liz convinced Karyn to sell it to her and partner, Rob Franklin and that they agreed a price of $255,000. "A couple of nights later they called and said how would you feel if we wanted to buy your house and so I said that would be perfect" Karen says Liz even arranged to draw up a contract of sale. "Over a period of two years they would be paying monthly into two accounts that 1 have and at the end of that time, pay a lump sum to finalise the agreement, the sale." "They owed me $209,000 and ft was due to he paid in March, when the contract finalized." But that's when things turned sour. Instead of settling up, Liz and Rob stopped paying. For the past eight months they've been sitting pretty, squatting by the beautiful Tamar River on the aptly-named Sunset Boulevard. With their dogs and sports car, they are living it up at Karyn's expense as she falls further and further behind with both mortgages. She now fears they will repossess her house. This one and that one; I mean at the moment, I actually don't own either of them," Karyn said. Karyn's son Ross is deaf and has been caring for his mum since the accident. He says he feels like the situation is kicking her when she's down. "I just want to get them out of there. I just want to get rid of them, full stop, so we can actually try and move ahead with our life and sell the house, and do it the way that mum wants to." Karyn's lawyer is desperately trying to negotiate a settlement. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 March 2015