This case note has been taken from the recently published second-edition of a Guide to ACT Strata Law. A physical copy of the full text can be purchased here.
The plaintiff brought proceedings for defamation for three emails published by the defendant, who at the time was the managing agent of Strata Plan 2533, a block of twelve units at 25 Cook St., Randwick, to lot owners, managers and a tenant.
The plaintiff, who had retired in 2006 after a distinguished career as a lecturer in physics, and whose mother owned a unit in this building, had long assisted in maintenance and building issues for her mother and other residents. At a meeting on 9 May 2019, the owners corporation appointed the defendant as strata manager.
At first, relations between the plaintiff and the defendant were cordial. However, the defendant made a series of errors such as paying Purple Plumbing twice, having the corporation’s books out of balance, entering into an insurance contract without consultation and putting monies into the wrong accounts. Then, in November 2019, the plaintiff discovered that a builder carrying out work was in fact an unlicensed handyman who was the husband of the managing agent for Lot 7. The defendant had never checked the builder’s licence and insurance position. The relationship between the plaintiff and defendant deteriorated and, prior to the Annual General Meeting on 11 May 2020, the defendant sent three emails to all those persons whose email addresses were in the file as owners or contact persons.
The plaintiff twice sought an apology from the defendant before proceedings were commenced, the first time on 8 July 2020 and the second on 25 September 2020. No response was received.
The defendant pleaded that each of the three emails complained of was published on an occasion of common law qualified privilege.
First Email:
On or about 29 April 2020, the defendant published an email sent to the plaintiff and all owners and managing agents of Lots in Strata Plan 2533. The imputations pleaded were as follows:
- The plaintiff was incompetent as Chair of the Owners Corporation, in that she engaged a plumbing contractor on behalf of the Owners Corporation who overcharged the corporation, lied to the strata manager about when he had refunded money paid to him by the Owners Corporation, and failed to provide the services that he had been engaged to provide.
- The plaintiff lied about moneys being refunded to the Owners Corporation.
- The plaintiff carelessly and needlessly spent the Owners Corporation’s money.
- The plaintiff wastes the resources of the Owners Corporation by engaging in unnecessary email communication with the strata manager, forcing him to expend excessive amounts of time responding to her.
Second Email:
On or about 7 May 2020 the defendant published an email sent to the plaintiff and all owners and managing agents of Lots in Strata Plan 2533. The following imputations were pleaded:
- The plaintiff was a liar in that she falsely accused Mark Gitman and MG Strata Management of engaging in unlawful acts.
- The plaintiff was a liar in that she falsely accused Mark Gitman and MG Strata Management of engaging in misleading and offensive conduct in relation to Strata Plan 2533.
- The plaintiff was the type of person who was prepared to make false, misleading and offensive accusations against the defendant and his staff committing an unlawful act with respect to the financial accounts for the Strata Plan that he is managing.
Third Email:
On or about 11 May 2020 the defendant published an email sent to the plaintiff and all owners and managing agents of Lots in Strata Plan 2533. The following imputations were pleaded:
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- The plaintiff was incompetent in that she cannot discharge her duties as a member of the Executive Committee of the Owners Corporation, including ignoring the Strata Manager’s advice most of the time and making decisions on her own.
- The plaintiff mismanaged the Owners Corporation funds by approving a building contractor who overcharged.
- The plaintiff incompetently deliberately wasted Owners Corporation funds by engaging a contractor to provide services which were unnecessary.
- The plaintiff was knowingly reckless about the expenditure of Owners Corporation funds in that she acts against the advice of the strata manager.
- The plaintiff incompetently caused loss and damage to the strata building and the owners corporation by ignoring the advice of the strata manager.
- The plaintiff was a liar, in that she made a false allegation that MG Strata and BMC Management Pty Ltd had committed a criminal offence.
- The plaintiff was the type of person who is prepared to make false, misleading and offensive accusations against the defendant and his staff committing an unlawful act with respect to the financial accounts for the Strata Plan that he is managing.
The Court held that each of the matters complained of conveyed each of the imputations pleaded, and that each of them was defamatory.
The plaintiff was entitled to judgment and to the determination of damages appropriate for each of the three publications. The Court held that the amount to be awarded should be modest and awarded, inclusive of aggravated damages, $35,000.
This case is a sober reminder to all lot owners, strata managers and relevant parties of the importance of courteous email conduct. In particular, an awareness of the parties included in emails is crucial. In this case, a number of false or exaggerated allegations were made against the plaintiff in emails circulated to the entire owners corporation. The plaintiff twice sought an apology from the defendant before proceedings were commenced. If such an apology were supplied, the costs of litigation and subsequent damages might have been avoided entirely.
This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.
Author: Christopher Kerin