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August 09 Edition Cover

Owners Corporation Law - June 2019

29 May 2019

OC chair wins $120k defamation payout

A court in Sydney has awarded damages of $120,000 to the elderly chairperson of a Manly apartment block, after a female tenant sent an email to him and the other owners in which she asked him to stop emailing her about locking her mailbox.

The court heard the chairperson had sent a number of emails to the tenant noting that her mailbox in the building had been left open and requesting that she keep it locked.

This included an email on May 24, 2017, in which he said: “As your mailbox has again been open for the last few days it is obvious I have not been able to convince you of the seriousness of this issue.”

The court heard there had been reports of gangs stealing mail in the area. Mailboxes in the building were broken into twice, starting in April 2017.

The chairperson believed the culprits may have been able to cut a “master key” by examining the lock on the tenant’s unlocked mailbox.

In her email on May 25, the tenant said: “Your assertion/s that a single unlocked mailbox has allowed a criminal milieu to stalk the ... [apartment complex], and spend the time necessary to copy barrels/locks in order to then construct a master key is farfetched (sic).”

She described the chairperson as having a “fixation on this issue” and suggested that, in light of his “email hobby”, he might consider getting sensitive documents such as banking statements sent via email rather than in the post.

Lawyers for the chairperson said the email defamed him by implying he was a “small-minded busybody who wastes the time of fellow residents on petty items” concerning the building, and that he “unreasonably harassed” and “acted menacingly towards” the tenant by “consistently threatening her by email”.

They also alleged the email from the tenant suggested the chairperson was a “malicious person who sent threatening emails to the defendant and copied in other residents” to publicly humiliate her.

The judge found those meanings were conveyed and the tenant had failed to establish a defence to any of them. This included defences of truth and honest opinion.

“It would be fair to say that every sentence of the defendant’s email in reply struck a blow at the plaintiff, and was intended to ridicule and humiliate him in every way,” the judge said.

She found that the tenant’s evidence was “coloured by exaggerated language, groundless suspicions and hostility”.

As a lawyer who practices in owners’ corporation matters, I am not shocked by this decision, even though the facts of the matter may seem trivial.

Defamation law is complicated and convoluted, however it is best practice that one should avoid ever having to get mixed up in a defamation case.

Owners and committees in Melbourne should reflect on this judgement. I have seen many emails over the years that have been sent by owners to committee members and vice versa that are far worse in language and imputation.

It will only be a matter of time before a similar judgment is made in Victoria.

My advice: best to go to bed and see how you feel in the morning before sending that email to the committee at 9.30pm at night. Calmer heads and more carefully chosen words seem to prevail in these circumstances ...

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