Cleary v Kocatekin

Judgment 1The Plaintiff seeks an interlocutory injunction against the Second Defendant (Channel Seven) seeking to prevent it showing a segment in its Today Tonight program concerning the Plaintiff and the First Defendant. Background 2The Plaintiff is a builder who entered into a residential building contract with the First Defendant on 22 December 2009. Disputes arose between the parties to the contract in relation to the building work and what was due to the builder. 3Proceedings were commenced in the Consumer, Trader and Tenancy Tribunal. Those proceedings were ultimately settled by a Deed of Release entered into between the parties on 19 January 2012. The Deed by its terms was intended to be a final settlement of all matters between the parties and there were mutual releases except in relation to statutory warranties under the Home Building Act 1989. 4Two clauses in the Deed are of significance. They are as follows: 8.CONFIDENTIALITY The terms of this Deed shall not be disclosed directly or indirectly by either of the parties in whole or part, except for the purposes of enforcement or as required by law. 9.NON DISPARAGEMENT Each party agrees not to disparage or otherwise bring into disrepute or otherwise cause any injury or potential injury or damage to the good name and standing of the other, either orally or in writing. 5On 5 April 2012 the Plaintiff received a telephone call from a person from Channel Seven's Today Tonight program. The Plaintiff said that the person was Brian Seymour but other evidence suggested it might have been Darren Ally, a producer at Channel Seven. The identity of the person does not matter. 6The person from Channel Seven said that he was following up a lead for a story about a house that the Plaintiff had built for the First Defendant. He asked if the Plaintiff wanted to make a comment. The Plaintiff said he would not comment at that stage, and was told that Today Tonight would be doing a story so he should "look out for the cameras". 7The Plaintiff said that he was then at a soccer game at Coledale on 13 April 2012 when Mr Seymour approached him and introduced himself. Mr Seymour said he wanted to have a chat. A cameraman was present. The Plaintiff said that the conversation went in this way: 9. At one stage he said: I have seen a letter you wrote to the bank stating that you could build the house for $530,000 dollars. I said: That's not true. He said: How can that be, I've seen the letter. I said: It's more complicated than that. He said: Can you explain yourself. I said: I can't because I've signed a deed of release, part of that means I can't talk about what's involved. 10. He continued to push and ask from different angles. I repeatedly replied: I can't talk about it. I'd love to be able to explain myself to you but unfortunately I can't. 11. At one stage I apologised for being nervous, I'm not used to having camera shoved in my face. 12. He said: We have an independent valuation that says it shouldn't have even cost $500K to do the work that has been done. I said: I disagree with that valuation. He said: How can you get it so far wrong. I said: I can and have accounted for every cent but obviously I can't talk about these things with you. 13.Many times he said the house is barely liveable. He mentioned some defects on the house. He said: One defect is splitting on some beams that are not fit for purpose. I said: That's the first I've heard of that. My understanding is that the beams are suitable I would confirm that with my supplier. He said: There's some large splits on the beams. I repeated: That is the first I've heard of this problem. I have been at the house just a couple of weeks ago. He said: Do you realise there's some bamboo floor that's lifting. I said: I am aware of that and I have already agreed to fix it. He said: Oh really, that's good. He asked: Why did you blackmail Kate and keep her out of the house for over a year. I said: Excuse me! Blackmail is a very strong word. He said: I withdraw that statement. Why did you keep Kate out of the house for over a year. I said: Because she didn't pay her bills. He said: How much did she owe you. I said: I can't talk about that. He said: Do you realise the financial hardship you've put this family through. I said: It's not one-sided. What about the hardship to my family, I'm selling my house over this. He said: How can that be. How can something like this go so wrong. I said: Again I can't talk about this. I'm not 100% sure what I can and can't talk about. If I'm not sure I'll say nothing. 14. At one stage he said: Do you think the bank has some responsibility in all this? I said: Possibly - you would love that wouldn't you. He said: You have some support in the community, three architects and some past clients, who all vouch for the quality of your work. How could this place go so horribly wrong. I said: The house is not completed. 15. At one point he said: You signed a Cost Plus contract with Kate, is that correct. I said: Yes. He said: Do you realise that Cost Plus contracts are illegal in Queensland. I said: We don't live in Queensland. He said: Is that common for you to do Cost Plus contracts. I said: Yes, the majority of my work is done that way. He said: If I sent you an email, could you provide some more information. I said: Once I have spoken to my solicitor, if I have some information for you, I could email it through I asked: Can I have your business card. He said: I don't have one with me - I'll get one from the car. 16. While he was going to the car, the camera man asked me some questions such as: (a) Do you surf? Is real estate expensive here? (b) I replied: Yes it is expensive. 17. I don't know whether they were still recording while Bryan was at the car. 18. When Bryan returned from the car I assumed the interview was over, but he continued it for several more minutes. 19. At one stage Bryan said to the cameraman: Whatever you do, don't film any kids. 20. At one stage Bryan said: I am not trying to shaft you, I want to do a fair story about what has happened. He said: Do you realise that Alice (Kate's daughter) has a disease, and could die within the next two to 6 months. I said: I realise she's sick. It's a terrible thing. He said: I know I couldn't cope with a sick child. I said: No, it's a terrible thing. He said: Henry (Kate's son) is a good kid. I agreed. 8Subsequently the Plaintiff sent an email from Mr Seymour setting out some questions which Mr Seymour said he hoped the Plaintiff would answer by way of written response. Those questions were as follows: