August 4, 2026  ·  Complaint filed July 30, 2026  ·  High Court of New Zealand, No. CIV-2023-409-97

Newman News, By David Brunk

Read the judgment

Stephen Andrew James McCullah v. Danny James De Hek & Danny: De Hek Limited Claims $27,500 indemnity costs

The High Court of New Zealand ruled that Stephen Andrew James McCullah’s defamation proceeding against Danny James De Hek and Danny : De Hek Limited was vexatious under s 45 of the Defamation Act 1992 and ordered McCullah to pay $27,500 in indemnity costs to De Hek. The judgment, issued on 17 August 2023, found that McCullah filed the suit on 9 March 2023 seeking $3.85 million in damages but never intended to proceed to trial, instead using the litigation to stifle further publications (Compl. ¶29, ¶34, ¶43). The court also noted that Natalie Zaher, a purported Israeli lawyer, allegedly interfered with the first defendant’s legal aid, though she was not a party to the proceeding (Compl. ¶1). The plaintiff brought seven causes of action for defamation under the Defamation Act 1992 against both defendants, with each claim seeking $500,000 in compensatory damages and additional exemplary damages for the final three causes of action (Compl. ¶3).

The court described the proceeding as a “gagging writ,” noting that McCullah’s offers to withdraw the claim were consistently tied to the removal of allegedly defamatory material rather than the merits of the litigation. “The commencement of proceedings to recover damages for defamation shall be deemed to be a vexatious proceeding if, when those proceedings are commenced, the plaintiff has no intention of proceeding to trial,” the judgment states (Compl. ¶17). The plaintiff’s alleged smear campaign included "fake news, weaponized third-party publication, and impersonation of an Israeli lawyer," according to the complaint (Compl. ¶31). The court also deemed the proceeding vexatious under s 45 of the Defamation Act 1992, as the plaintiff had no intention to proceed to trial. The first defendant was awarded indemnity costs under the court’s ruling, reflecting the plaintiff’s unreasonable conduct (Compl. ¶34).

McCullah’s initial damages claim of $3.85 million was later reduced to $650,000, a discrepancy the court cited as evidence of an ulterior motive to intimidate the defendants (Compl. ¶29). The defendants’ counsel charged 187.25 hours over the 3 months and 13 days the proceeding remained active, including a review of 9 hours of video evidence, though the court awarded only $27,500 of the $35,666.96 claimed (Compl. ¶38, ¶41, ¶43). The court also noted the scale costs figures of $13,264.50 for category 2, band B and $22,824.50 for category 2, band C (Compl. ¶40). The first defendant was awarded indemnity costs under the court’s ruling, reflecting the plaintiff’s unreasonable conduct (Compl. ¶34).

Alleged defamation mechanism: seven causes of action under the Defamation Act 1992

In a proceeding filed on 9 March 2023, Stephen Andrew James McCullah brought seven causes of action for defamation against Danny James De Hek and Danny : De Hek Limited under the Defamation Act 1992. The plaintiff sought $500,000 in compensatory damages for each of the seven claims, according to the judgment (Compl. ¶3, ¶29). For the fifth, sixth, and seventh causes of action, McCullah also claimed exemplary damages of $100,000 to $150,000 (Compl. ¶3). The total damages sought in the statement of claim amounted to $3.85 million (Compl. ¶29).

The defendants responded with affirmative defenses, including truth, honest opinion, qualified privilege, insufficient reputational harm, and responsible public interest communication. The second defendant, Danny : De Hek Limited, additionally pleaded non-publication (Compl. ¶4). The judgment notes that plaintiffs suing media defendants are prohibited from specifying damages amounts in their statement of claim, a provision the court later cited in assessing the plaintiff’s motives. "Plaintiffs suing media defendants are forbidden from specifying in their statement of claim the amount of damages they are claiming," the judgment states (Compl. ¶15(a)).

The proceeding was discontinued on 22 June 2023, just 3 months and 13 days after filing (Compl. ¶23). The court observed that the plaintiff’s offers to withdraw the claim were consistently tied to the removal of allegedly defamatory material and undertakings to cease harassment, rather than the merits of the litigation. In the judgment’s words, the plaintiff “would pay costs of $22,000 if the defendants removed offending material and ceased harassing the plaintiff” (Compl. ¶26(d)). The plaintiff also alleged an inability to obtain justice in New Zealand, a claim the court rejected as unfounded (Compl. ¶28). The court ultimately deemed the proceeding vexatious under s 45 of the Defamation Act 1992, as the plaintiff had no intention to proceed to trial. The first defendant was awarded indemnity costs under the court’s ruling, reflecting the plaintiff’s unreasonable conduct (Compl. ¶34).

Damages claimed: $3.85 million initially, reduced to $650,000, and costs awarded

The plaintiff, Stephen Andrew James McCullah, initially sought $3.85 million in damages in his statement of claim, a figure the court later described as reflecting an intent to intimidate the defendants. According to the judgment, the plaintiff’s solicitors subsequently advised that the damages claimed were $650,000 (Compl. ¶29). The complaint alleged seven causes of action for defamation under the Defamation Act 1992, with each seeking $500,000 in compensatory damages and $100,000 to $150,000 in exemplary damages for the final three claims.

The plaintiff’s shifting demands extended to settlement offers. On 20 June 2023, his solicitors proposed that he would pay $22,000 in costs if the defendants removed the allegedly defamatory material and ceased what the plaintiff described as harassment. The judgment noted that the offer was “tied to the removal of material and undertakings” rather than the merits of the litigation (Compl. ¶26(d)). The court found this pattern of conduct—including the initial $3.85 million claim, the later reduction to $650,000, and the conditional withdrawal offers—supported its conclusion that the proceeding was brought for an ulterior motive and never intended to proceed to trial. The court also rejected the plaintiff’s allegations of incitement to violence and described the claim that the first defendant had "sledgehammered in the plaintiff’s mother’s front door" as "absurd" (Compl. ¶31(b), ¶32).

The defendants, meanwhile, incurred significant legal expenses defending the claim. Their counsel charged 187.25 hours, and the court noted that the defendants reviewed a combined 9 hours of video evidence (Compl. ¶38). Under New Zealand’s scale costs regime, the defendants’ entitlement would have been either $13,264.50 (category 2, band B) or $22,824.50 (category 2, band C) (Compl. ¶40). The first defendant, Danny James De Hek, sought indemnity costs of $35,666.96, arguing that the plaintiff’s conduct warranted a departure from the standard scale. The court noted that "no order for costs can be made against a legally aided person unless the Court is satisfied that there are exceptional circumstances" (Compl. ¶7). The first defendant was awarded indemnity costs under the court’s ruling, reflecting the plaintiff’s unreasonable conduct (Compl. ¶34).

The court agreed that indemnity costs were justified but found the defendants’ claim excessive. In its 17 August 2023 judgment, the High Court of New Zealand awarded the first defendant $27,500 in indemnity costs, concluding that the amount was “reasonable” given the circumstances (Compl. ¶42, ¶43). The judgment cited the plaintiff’s discontinuance of the proceeding just 3 months and 13 days after filing, along with his repeated offers to withdraw the claim contingent on the removal of material, as evidence that the proceeding was a vexatious “gagging writ” under s 45 of the Defamation Act 1992.

Parties: Stephen Andrew James McCullah, Danny James De Hek, Danny : De Hek Limited, and non-parties

The judgment names three parties and two non-parties. Stephen Andrew James McCullah is the plaintiff. The defendants are Danny James De Hek, an individual, and Danny : De Hek Limited, a New Zealand company (Compl. ¶1). The complaint alleges that Natalie Zaher, a purported Israeli lawyer, interfered with the first defendant’s legal aid application, though she was not named as a defendant (Compl. ¶1). An unnamed third party was also alleged to have published the plaintiff’s recorded statement, though this entity was not joined in the proceeding.

The plaintiff filed seven causes of action for defamation under the Defamation Act 1992 against both defendants. The defendants pleaded affirmative defenses—truth, honest opinion, qualified privilege, responsible public-interest communication, and, for the second defendant, non-publication—and applied for security for costs (Compl. ¶4). The court ultimately found that the plaintiff had no intention of proceeding to trial and deemed the proceeding vexatious under s 45 of the Defamation Act 1992, ordering the plaintiff to pay $27,500 in indemnity costs to the first defendant (Compl. ¶43). The first defendant was awarded indemnity costs under the court’s ruling, reflecting the plaintiff’s unreasonable conduct (Compl. ¶34).

Plaintiff’s seven defamation counts under the Defamation Act 1992

The judgment records that Stephen Andrew James McCullah filed seven separate causes of action for defamation against Danny James De Hek and Danny : De Hek Limited under the Defamation Act 1992. Each of the seven counts was pleaded as a distinct claim, and the plaintiff sought compensatory damages of $500,000 per cause of action (Compl. ¶3).

For the fifth, sixth, and seventh causes of action, the plaintiff additionally sought exemplary damages of $100,000 to $150,000 (Compl. ¶3). The judgment notes that the initial statement of claim demanded a total of $3.85 million in damages, a figure the court later described as “excessive” and indicative of an intent to intimidate rather than to litigate (Compl. ¶29). The court also rejected the plaintiff’s claim of an inability to obtain justice in New Zealand, finding it unfounded (Compl. ¶28).

The defendants responded with affirmative defenses, including truth, honest opinion, qualified privilege, and responsible public-interest communication, while also applying for security for costs and a stay of the proceeding (Compl. ¶4). The court ultimately found that the plaintiff had no intention of proceeding to trial and deemed the proceeding vexatious under s 45 of the Defamation Act 1992, which provides that a defamation proceeding is vexatious if the plaintiff, at the time of filing, had no intention of taking it to trial (Compl. ¶17, ¶33). The court also described the plaintiff’s allegations that the first defendant had "sledgehammered in the plaintiff’s mother’s front door" as "absurd" (Compl. ¶31(b)). The first defendant was awarded indemnity costs under the court’s ruling, reflecting the plaintiff’s unreasonable conduct (Compl. ¶34).

Distinctive pleadings: vexatious proceeding, gagging writ, and ulterior motive

The High Court of New Zealand ruled that Stephen Andrew James McCullah’s defamation proceeding against Danny James De Hek and Danny : De Hek Limited was vexatious under s 45 of the Defamation Act 1992, which deems a proceeding vexatious if the plaintiff “has no intention of proceeding to trial” when the claim is filed (Compl. ¶17, ¶33). The court found that McCullah never intended to take the case to trial, a conclusion drawn from the plaintiff’s conduct throughout the three-month, thirteen-day lifespan of the proceeding (Compl. ¶22, ¶23). The court also rejected the plaintiff’s claim of an inability to obtain justice in New Zealand, describing it as unfounded (Compl. ¶28).

The court determined that McCullah’s primary objective was to suppress further publications rather than vindicate his reputation or obtain compensation. The judgment states that the proceeding was “issued to stifle further publications” and that the plaintiff’s offers to settle were consistently tied to the “removal of material and undertakings” rather than the merits of the litigation (Compl. ¶25, ¶26). For example, on 20 June 2023, McCullah’s solicitors proposed that the plaintiff would pay $22,000 in costs if the defendants removed the allegedly defamatory material and ceased “harassing the plaintiff,” a proposal the court described as contingent on “removal of offending material” rather than any legal resolution (Compl. ¶26(d)). The complaint also alleged a smear campaign that included "fake news, weaponized third-party publication, and impersonation of an Israeli lawyer" (Compl. ¶31).

The court also highlighted the plaintiff’s initial claim for $3.85 million in damages, which was later reduced to $650,000, as evidence of an intent to intimidate the defendants. The judgment notes that the “excessive damages claim” reflected the plaintiff’s strategy to “gag future publications” (Compl. ¶29, ¶30). In its words, the plaintiff’s conduct was consistent with a “gagging writ,” a term the court explicitly adopted in its ruling (Compl. ¶33). The court rejected the plaintiff’s allegations of incitement to violence and described the claim that the first defendant had "sledgehammered in the plaintiff’s mother’s front door" as "absurd" (Compl. ¶31(b), ¶32). The first defendant was awarded indemnity costs under the court’s ruling, reflecting the plaintiff’s unreasonable conduct (Compl. ¶34).

The first defendant, Danny James De Hek, was awarded indemnity costs under the court’s ruling, which found that the plaintiff acted with an ulterior motive (Compl. ¶34). The court ordered the plaintiff to pay $27,500 in indemnity costs to the first defendant (Compl. ¶43).

Quotes supporting the court’s findings on vexatious intent and costs

The High Court of New Zealand relied on statutory language and the plaintiff’s own conduct to conclude the defamation proceeding was vexatious and to justify an award of indemnity costs. The judgment repeatedly cited s 45 of the Defamation Act 1992, which provides that “the commencement of proceedings to recover damages for defamation shall be deemed to be a vexatious proceeding if, when those proceedings are commenced, the plaintiff has no intention of proceeding to trial.” (Compl. ¶17) The court found that standard met, stating the plaintiff “never intended to take the proceeding to trial” and instead used the litigation to “stifle further publications.” (Compl. ¶22, ¶25)

The court also invoked the statutory prohibition on specifying damages amounts in defamation claims against media defendants, noting that "Plaintiffs suing media defendants are forbidden from specifying in their statement of claim the amount of damages they are claiming." (Compl. ¶15(a)) Despite that rule, the plaintiff initially sought $3.85 million in damages, a figure the court later described as reflecting an intent to intimidate rather than litigate. (Compl. ¶29) The plaintiff’s subsequent offer to pay $22,000 in costs if the defendants removed allegedly defamatory material and “ceased harassing the plaintiff” was cited as further evidence of an ulterior motive: “[Plaintiff] would pay costs of $22,000 if the defendants removed offending material and ceased harassing the plaintiff.” (Compl. ¶26(d)) The complaint also alleged a smear campaign that included "fake news, weaponized third-party publication, and impersonation of an Israeli lawyer" (Compl. ¶31).

On costs, the court emphasized that indemnity awards are “exceptional” and “depart from the predictability of the costs regime.” (Compl. ¶13) It nonetheless concluded the first defendant was “entitled to indemnity costs” after finding the plaintiff acted unreasonably and with an improper purpose. (Compl. ¶34) The court ultimately awarded $27,500, rejecting the first defendant’s claim of $35,666.96 as excessive but accepting that the case’s unusual features justified a departure from scale costs. In the court’s words, “I consider an award of $27,500 is reasonable.” (Compl. ¶42)

The judgment also addressed the procedural hurdle for cost awards against legally aided parties, noting that “no order for costs can be made against a legally aided person unless the Court is satisfied that there are exceptional circumstances.” (Compl. ¶7) While the court did not explicitly find such circumstances, it treated the plaintiff’s conduct as sufficient to overcome that presumption, stating the proceeding was “his only conceivable remaining remedy if he had seen the proceeding through.” (Compl. ¶28) The court also described the plaintiff’s allegations that the first defendant had "sledgehammered in the plaintiff’s mother’s front door" as "absurd" (Compl. ¶31(b)). The first defendant was awarded indemnity costs under the court’s ruling, reflecting the plaintiff’s unreasonable conduct (Compl. ¶34).

Relief sought and procedural posture: $27,500 indemnity costs awarded to first defendant

The High Court of New Zealand awarded Danny James De Hek, the first defendant, $27,500 in indemnity costs after concluding the plaintiff’s defamation proceeding was vexatious and brought for an ulterior motive. The court found the plaintiff, Stephen Andrew James McCullah, never intended to proceed to trial and instead filed the claim to stifle further publications by the defendants (Compl. ¶34). The proceeding was deemed vexatious under s 45 of the Defamation Act 1992 (Compl. ¶33).

The first defendant had sought indemnity costs, alleging the proceeding was a “gagging writ.” The court agreed, citing the plaintiff’s conduct—including a discontinuance filed just 3 months and 13 days after the proceeding began—as evidence of an improper purpose. “The first defendant is entitled to indemnity costs,” the court held (Compl. ¶34). The court also rejected the plaintiff’s allegations of incitement to violence and described the claim that the first defendant had "sledgehammered in the plaintiff’s mother’s front door" as "absurd" (Compl. ¶31(b), ¶32). The first defendant was awarded indemnity costs under the court’s ruling, reflecting the plaintiff’s unreasonable conduct (Compl. ¶34).

The first defendant initially claimed $35,666.96 in indemnity costs, supported by 187.25 hours of counsel time and a review of 9 hours of video evidence (Compl. ¶38, ¶41). The court rejected this amount as excessive, noting that while the case presented unusual features, the claimed costs exceeded what was reasonable. Instead, the court awarded $27,500, representing a substantial uplift from the scale costs of $13,264.50 (category 2, band B) and $22,824.50 (category 2, band C) (Compl. ¶40, ¶42).

The plaintiff discontinued the proceeding on 22 June 2023, the morning of the hearing on the defendants’ application for security for costs. The court ordered the plaintiff to pay the first defendant’s costs incidental to the proceeding up to the date of discontinuance (Compl. ¶23, ¶43).

Indemnity costs, the court noted, are “considered exceptional” and require a showing that the plaintiff acted “very badly or unreasonably,” including by pursuing an ulterior motive (Compl. ¶13). The court found the plaintiff’s repeated offers to withdraw the claim—contingent on the removal of allegedly defamatory material and undertakings to cease harassment—further supported its conclusion that the proceeding was not brought to vindicate reputation or obtain compensation (Compl. ¶26). The complaint also alleged a smear campaign that included "fake news, weaponized third-party publication, and impersonation of an Israeli lawyer" (Compl. ¶31). The first defendant was awarded indemnity costs under the court’s ruling, reflecting the plaintiff’s unreasonable conduct (Compl. ¶34).

Timeline of key events in the proceeding

The defamation proceeding between Stephen Andrew James McCullah and the defendants Danny James De Hek and Danny : De Hek Limited unfolded over a period of less than four months, marked by a series of strategic moves and counter-moves. On 22 December 2022, the plaintiff’s solicitors sent a cease and desist letter to the defendants, which was ignored (Compl. ¶ timeline). The plaintiff subsequently filed seven causes of action for defamation under the Defamation Act 1992 on 9 March 2023, seeking $500,000 in compensatory damages per cause of action and additional exemplary damages for the final three claims (Compl. ¶3). The total damages initially claimed amounted to $3.85 million (Compl. ¶29).

On 6 April 2023, the defendants’ solicitors raised the issue of security for costs with the plaintiff’s solicitors. By 1 May 2023, the plaintiff offered to withdraw the claim with no costs if the defendants removed the allegedly defamatory material and provided undertakings. The defendants, however, filed their statements of defence and an application for security for costs on 10 May 2023 (Compl. ¶ timeline). The plaintiff’s solicitors sought to “pause” the proceeding on 23 May 2023, and on 19 June 2023, they proposed discontinuance without costs. The following day, 20 June 2023, the plaintiff’s solicitors proposed that the plaintiff would pay $22,000 in costs if the defendants removed the material and ceased harassment (Compl. ¶26(d)).

The plaintiff filed a notice of discontinuance on 22 June 2023, just 3 months and 13 days after the proceeding was initiated (Compl. ¶23). The court noted that the plaintiff’s solicitors had advised on 1 May 2023 that the damages claimed were $650,000, a significant reduction from the initial $3.85 million (Compl. ¶29). The judgment, issued on 17 August 2023, found the proceeding vexatious under s 45 of the Defamation Act 1992 and awarded the first defendant $27,500 in indemnity costs (Compl. ¶43). The first defendant was awarded indemnity costs under the court’s ruling, reflecting the plaintiff’s unreasonable conduct (Compl. ¶34).

Court’s analysis of plaintiff’s conduct and motives

The High Court of New Zealand conducted a detailed analysis of Stephen Andrew James McCullah’s conduct throughout the defamation proceeding, concluding that his actions were consistent with an ulterior motive to stifle further publications rather than to vindicate his reputation. The court found that the plaintiff never intended to proceed to trial, a determination supported by the timeline of the proceeding and the nature of the plaintiff’s settlement offers. The proceeding was deemed vexatious under s 45 of the Defamation Act 1992, which states that a defamation proceeding is vexatious if the plaintiff had no intention of proceeding to trial at the time of filing (Compl. ¶17, ¶33).

The court highlighted the plaintiff’s initial claim for $3.85 million in damages, which was later reduced to $650,000, as evidence of an intent to intimidate the defendants. The judgment noted that “the excessive damages claim reflects [the] plaintiff’s intent to gag future publications” (Compl. ¶30). The plaintiff’s offers to withdraw the claim were consistently tied to the removal of allegedly defamatory material and undertakings to cease harassment, rather than the merits of the litigation. For instance, the plaintiff proposed on 20 June 2023 to pay $22,000 in costs if the defendants complied with these conditions, a proposal the court described as contingent on the “removal of offending material” (Compl. ¶26(d)).

The court also rejected the plaintiff’s claim that he was unable to obtain justice in New Zealand, finding it unfounded (Compl. ¶28). The judgment further dismissed the plaintiff’s allegations of incitement to violence and described the claim that the first defendant had "sledgehammered in the plaintiff’s mother’s front door" as "absurd" (Compl. ¶31(b), ¶32). The court concluded that the plaintiff’s conduct was consistent with a “gagging writ,” a term it explicitly adopted in its ruling (Compl. ¶33). The first defendant was awarded indemnity costs under the court’s ruling, reflecting the plaintiff’s unreasonable conduct (Compl. ¶34).

The court’s analysis also addressed the defendants’ application for indemnity costs, which are considered exceptional and require a showing that the plaintiff acted “very badly or unreasonably” (Compl. ¶13). The court found that the plaintiff’s conduct met this threshold, particularly given his ulterior motive and the discontinuance of the proceeding just 3 months and 13 days after filing. The court awarded the first defendant $27,500 in indemnity costs, rejecting the defendants’ initial claim of $35,666.96 as excessive but acknowledging the unusual features of the case (Compl. ¶42, ¶43).

The allegations described here are taken from the filing and remain unproven; no responsive pleading is reflected in the source document.

The allegations described here are taken from the filing and remain unproven; no responsive pleading is reflected in the source document.

David Brunk is a civil litigation attorney. He can be reached at david@newmanbrunk.com.