It is fair to say that email is one of the banes of modern life. However, a recent NSW District Court defamation case highlights the potential dangers lurking in communications (especially emails) between strata managers, owners corporations and residents.
Let’s take a look…
The defamation is in the email
In Raynor v Murray [2019] NSWDC 189, Mr Raynor, the chair of a strata committee for a building in Manly, successfully sued fellow resident Ms Murray for her defamatory emails about him. In a situation where a seemingly minor matter of common property maintenance and repair boiled over, Ms Murray was ordered by the District Court to pay damages to Mr Raynor.
So what happened?
As per section 121 of the Strata Schemes Management Act 2015, an owners corporation is required to repair and maintain letterboxes for its strata building.
Ms Murray did not lock her letter box. Concerned about mail theft, Mr Raynor requested via email that Ms Murray lock her letterbox.
Ms Murray did not do so, and subsequent correspondence culminated in Ms Murray sending an email to Mr Raynor and others stating: "... your consistent attempt to shame me publicly is cowardly. It is also offensive, harassing and menacing through the use of technology to threaten me. Please stop!"
While it is easy to understand both sides of the argument, it is safe to say Ms Murray likely didn't expect to be sued for expressing her frustrations.
However, the District Court disagreed and found that Ms Murray's email wrongly suggested that Mr Raynor unreasonably harassed and humiliated her. Failing to prove otherwise, Ms Murray was ordered to pay $120,000 in damages to Mr Raynor.
Dealing with unreasonable communications
There are no express statutory provisions in the Strata Schemes Management Act 2015 dealing with how strata managers, owners corporations or residents communicate with each other or how an owners corporation can regulate or prohibit unreasonable communications.
However, there are reported adjudicators’ decisions in Queensland under the Queensland strata legislation indicating that a by-law prohibiting unreasonable communications is valid and an owners corporation can adopt (even in the absence of a by-law on the topic) practices to regulate and prohibit unreasonable communications.
Such a by-law would be valid under the Strata Schemes Management Act 2015 and – as in the jurisdiction issue – the NSW Civil and Administrative Tribunal (NCAT) should consider emulating Queensland’s model.
In Tank Tower [2015] QBCCMCmr 322, a Queensland adjudicator made orders restricting a lot owner’s communications with an owners corporation based on a by-law stating: "Owners and occupiers must communicate with the Committee in a reasonable manner and not in any way which may become an annoyance or a nuisance to any Committee member."
The adjudicator ordered the lot owner in question to limit his communications with the strata manager and committee members so that:
- He could only send correspondence via the post and not by email
- He could only send one piece of correspondence per week
- Each piece of correspondence could not be more than two pages long and could not contain more than 1000 words
- The correspondence had to be courteous and not abusive
- He could only telephone the owners corporation’s representatives if they had invited him to do so
Be cool like Fonzie!
American author and blogger, Tim Ferris, has a rule for followers posting to his website: "Remember what Fonzie was like? Cool. That’s how we’re gonna be – cool. Critical is fine, but if you’re rude, we’ll delete your stuff."
While NCAT is unlikely to quote Tim Ferris or Fonzie, the sentiment should be heeded.
Strata managers, owners corporations and residents should be cool in their communications with each other and in doing so, they can avoid being a defendant in a defamation case like Ms Murray.
To be ice-cold, strata managers can encourage owners corporations to establish by-laws that state what constitutes proper and unreasonable communication and how unfavourable communications will be handled.
Want more?
REINSW thanks Carlo Fini and JS Mueller & Co for their contribution to this article.