This article about Defamation in Owners Corporations has been supplied by Carlo Fini, Lewis & Charles Lawyers.
Question: The Strata Manager sent an email to all members of the Strata Committee critical of my performance as a former Chairman and advising the SC that they should block all future emails from me to the SC. Is this defamation? What can I do?
I am in NSW and would like to know what my options are regarding the Strata Manager sending an email to all members of the Strata Committee critical of my performance as a former Chairman and advising the SC that they should block all future emails from me to the SC.
This provocation has only occurred since I disagreed with his advice to the SC where he advised that the Owners Corporation should pay for the repair of lot property as the amount of money involved was minor despite a bylaw and written undertakings by the affected owner that they would be responsible.
Answer: Depending on the content of the strata manager’s email, the email could be defamatory however the strata manager may have a defence to defamation based on qualified privilege.
This question raises three issues: defamation, communications generally, and an owners corporation spending money outside its authority.
Depending on the content of the strata manager’s email, the email could be defamatory however the strata manager may have a defence to defamation based on qualified privilege. For example, if the strata manager thought you had done something wrong and that the owners corporation needed to know about it to consider taking action against you, then while that communication may be defamatory because the owners corporation has an interest in receiving it, this may be an instance where the strata manager has a defence based on qualified privilege. Depending on the circumstances, the strata manager may have other defences to defamation. And, because the strata manager is the owners corporation’s agent, then arguably the owners corporation is liable for any defamation by the strata manager. If you wished to pursue this further, then you could engage a lawyer familiar with defamation to write to the strata manager and to the owners corporation requesting a retraction and an apology. Ultimately if you can’t reach a resolution of the issue, then you could take legal action in a court for defamation and seek damages from the strata manager and the owners corporation. You would need a lawyer to advise you on whether you had good prospects of winning a defamation case, the amount of damages that could be awarded and the legal costs involved.
The Strata Schemes Management Act 2015 doesn’t require an owners corporation and its strata manager and strata committee to engage in correspondence with lot owners unless the particular type of correspondence is something that is recognised under the legislation as requiring a response, for example a qualified request from owners with at least 25% of unit entitlement for holding a general meeting. Upon receiving a qualified request, the owners corporation must proceed to holding the general meeting. Generally, it is up to the strata manager and strata committee to decide how to handle communications with lot owners and whether to respond to them, and their ability to control communications has at least been recognised in cases in Queensland under Queensland strata legislation. If you are not getting any responses from the strata manager and the strata committee to your correspondence, you can always undertake a strata search to examine the correspondence such as emails passing between the strata manager and the strata committee in response to your correspondence. Tribunal cases such as Walker v The Owners – Strata Plan No 1992  NSWCATAP 192 and Legge v Network Strata Services Pty Ltd  NSWCTTT 45 indicate that an owners corporation must produce such emails and correspondence as part of a strata search.
Finally, an owners corporation does not have an express statutory power to spend money on another person’s property such as lot property. The owners corporation can only do what is authorised under the Strata Schemes Management Act 2015. If your owners corporation has not yet paid for the lot property repair and has not engaged a contractor to do the repair, you could seek an order from the NSW Civil & Administrative Tribunal to prevent it from paying for the repair. However, if the money has already been spent, it may be hard to get it back because it is the owners corporation who would have to take action to get the money back. The strata manager’s advice to pay for the repair because it is a small amount is not a valid reason for the owners corporation doing something it is not authorised to do.
Please note: This is not intended to be legal advice. You should seek legal advice specific to your situation.
This post appears in Strata News #444.
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