Accommodation West Pty Ltd v Aikman - [2017] WASC 157

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: ACCOMMODATION WEST PTY LTD -v- AIKMAN [2017] WASC 157

CORAM: KENNETH MARTIN J

HEARD: 23, 24, 25 & 28 NOVEMBER 2016

DELIVERED : 12 JUNE 2017

FILE NO/S: CIV 2063 of 2015

BETWEEN: ACCOMMODATION WEST PTY LTD
First Plaintiff
PAUL RAYMOND KING
Second Plaintiff
PETER BRIAN RAKICH
Third Plaintiff
AND
SUSAN RUTH AIKMAN
Defendant

Catchwords:

Defamation - Six publications - Plaintiff identification - One corporate plaintiff - Excluded corporation - Strata manager - Entitlement to sue in defamation - Limited extent of publications - Innuendo meanings - True innuendo in alternative as to plaintiff identification - Defamatory character of alleged imputations

Qualified privilege defences at common law and under statute - Community of interest in recipients of publications - Reasonableness of communications by defendant to strata lot owners of managed resort premises - Assertions as to defendant's malice at time of publications - Mere ill will by itself not to be equated to malice sufficient to deny qualified privilege

Legislation:

Defamation Act 2005 (WA), s 9(2)(b), s 9(4), s 30(1)(c), s 30(2), s 34
Corporations Act 2001 (Cth), s 48(2), s 50

Result:

Action dismissed

Category: B

Representation:

Counsel:

First Plaintiff                :     Mr C S Williams
Second Plaintiff            :     Mr C S Williams
Third Plaintiff               :     Mr C S Williams
Defendant:     Mr R Potter & Mr B Goldsmith

Solicitors:

First Plaintiff                :     Solomon Brothers
Second Plaintiff            :     Solomon Brothers
Third Plaintiff               :     Solomon Brothers
Defendant:     Goldsmith Lawyers

Case(s) referred to in judgment(s):

Atkas v Westpac Banking Corporation [2010] HCA 25; (2010) 241 CLR 79
Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366
Bennette v Cohen [2009] NSWCA 60
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 366
Burstein v Times Newspapers Ltd [2001] 1 WLR 579
Coxon v Wilson [2016] WASCA 48
Cush v Dillon [2011] HCA 30; (2011) 243 CLR 298
Fierravanti-Wells v Nationwide News Pty Ltd [2010] NSWSC 648
Gross v Weston [2007] NSWCA 1; (2007) 69 NSWLR 279
Guise v Kouvelis [1947] HCA 13; (1947) 74 CLR 102
Harbour Radio v Trad [2012] HCA 44; (2012) 247 CLR 31
Harding v Essey [2005] WASCA 30; (2005) 30 WAR 1
Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33
Horrocks v Lowe [1975] AC 135; [1974] 1 All ER 662
Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117
Lewis v Daily Telegraph [1964] AC 234
Loveday v Sun Newspapers Ltd [1938] HCA 53; (1938) 59 CLR 503
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449
Papaconstuntinos v Holmes à Court [2012] HCA 53; (2012) 249 CLR 534
Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1

Table of Contents

Introduction
Mrs Aikman's six publications complained of as defamatory
Overview of the six publications complained of from a defamation perspective
Principal parties and participants
Seashells Mandurah: The interconnecting management structures
AW Co's position

AW Co as an excluded corporation

Mr King's position
Mr Rakich's position
Mrs Aikman's position
Other trial evidence relied upon by the plaintiffs: Messrs Thomas and Newbold
Practical consequences of Mrs Aikman's alleged malice
Sources of evidence at trial: Documentary evidence
Key issues
What was not in issue at the trial
Principles of law: Common law and statutory qualified privilege as a defence to defamation

Common law qualified privilege
Statutory qualified privilege

Principles of law: Malice
The publications complained of: Three emails with a small range of circulation

The first and fifth publications complained of
The second email publication complained of
The first, second and fifth publications: Limited damages

The first publication: Mrs Aikman's email of 28 July 2014 to Mrs Orohoe (Schedule A)

Preliminary observations
Evaluation of the imputations in the first publication
Concluding determinations on the first publication

The second publication: Mrs Aikman’s email of 17 October 2014 at 9.26 am to Mr Di Prinzio copied to Mrs Lazarus (Schedule B)

Preliminary observations
Evaluation of imputations in the second publication
Concluding determinations on the second publication

The fourth publication: The Coombs Report attachment sent by Mrs Aikman (Schedule D)

General observations
Coombs Report: Preliminary observations
Evaluations of imputations in the fourth publication

The third publication: Mrs Aikman’s email of 2 April 2015 at 2.29 pm sent to 20 people (Schedule C)

Preliminary observations
Evaluation of imputations in the third publication
Concluding determinations for the third publication

The fifth publication: Mrs Aikman's email of 17 April 2015 to Mr Hans Beyer copied to Mr Rakich, Mrs Orohoe and Mrs Ivankovich (Schedule E)

Preliminary observations
Evaluations of imputations in the fifth publication
Concluding determinations on the fifth publication

The sixth publication: 2015 AGM of the 'Owners of Strata Plan 48817, 16 Dolphin Drive, Mandurah' (Schedule F)

Preliminary observations
Evaluation of imputation in the sixth publication

Summary as regards the six publications now evaluated
Qualified privilege and malice: Relevant observations to this case
Introductory observations upon malice allegations against Mrs Aikman as regards five of the six publications
The plaintiffs' reply pleading: Underlying facts and circumstances concerning the defendant's alleged malice in this action
Mrs Aikman's cross-examination: Privilege and malice related issues

Conclusions

KENNETH MARTIN J:

Introduction

This defamation action is brought by three plaintiffs against the defendant, Mrs Susan Aikman, in respect of six allegedly defamatory publications which Mrs Aikman admits making, but denies were defamatory.
Mrs Aikman was a strata lot owner at a Mandurah seaside location strata resort known as Seashells Mandurah.
One of the plaintiffs who claims it was defamed is the corporation, Accommodation West Pty Ltd (AW Co). That is unusual these days. AW Co contends it may nevertheless sue in defamation as it is an 'excluded corporation' pursuant to s 9(2)(b) of the Defamation Act 2005 (WA).
The other plaintiffs who claim that they were defamed by Mrs Aikman are natural persons. Mr Paul King, the second plaintiff, is the sole director and controlling decision‑maker for AW Co. Mr Peter Brian Rakich, the third plaintiff, is said to be the sole employee of AW Co.
Each of the three plaintiffs claim they were defamed and suffered reputational injury by the published contents of Mrs Aikman's six communications. Four of these impugned communications were emails by Mrs Aikman sent only to a limited number of recipients. One publication complained about is a forensic accountant's report. It was sent as an attachment to one of the emails.
The last of the six publications arises from the words spoken by Mrs Aikman on 4 June 2015 at the annual general meeting (AGM) of the strata company associated with Seashells Mandurah.
The recipients (ie, readers or hearers) of Mrs Aikman's communications were, in the main, a handful of other Seashells Mandurah strata lot owners. In broad terms, they could be described as strata lot owners who at the time were, like Mrs Aikman, dissatisfied, as owner/lot purchaser investors at Seashells Mandurah, over how certain management issues at the Seashells Mandurah resort were done or not done by the plaintiffs.
The second and third plaintiffs were also strata lot owners at Seashells Mandurah (or co‑owners with their spouses or through associated family corporations).
A relatively small group of dissatisfied lot owners at Seashells Mandurah came to be broadly aligned with Mrs Aikman over some common concerns as strata lot owners. Unsurprisingly, they communicated with each other by email or in person over these Seashells Mandurah management concerns.
The present action raises an underlying policy issue as to the exercise of free speech in Australia - in particular, the freedom of strata lot owners to candidly express their genuinely held views and render robust criticisms, albeit as a minority, about the quality and performance of their strata management regime.

Mrs Aikman's six publications complained of as defamatory

For convenience, I attach as discrete schedules to these reasons each of the six publications at issue that are alleged to carry defamatory matter concerning each of the plaintiffs.
These publications were all uncontroversially tendered at trial as agreed documents - found within a large three-volume trial bundle (TB) of agreed exhibits.
The TB was tendered as exhibit 2. It comprises exhibits 2.1 through to 2.236. (References to an exhibit within the TB in these reasons will be to the exhibit number, tab number, and lastly to the TB's chronological page number.)
Schedules A through F respectively to these reasons are therefore as follows:
(a)First publication complained of: Mrs Aikman's email of 28 July 2014 to Mrs Lynn Orohoe (exhibit 2.179, TB page 860);
(b)Second publication complained of: Mrs Aikman's email of 17 October 2014 sent to Mr Jules Di Prinzio (and copied to Mrs Leanne Lazarus) (exhibit 2.189, TB page 920);
(c)Third publication complained of: Mrs Aikman's email of 2 April 2015 to 'Dear Owners' attaching an accountant's report, which is the next scheduled document mentioned (exhibit 2.195, TB pages 956 - 967);
(d)Fourth publication complained of: forensic accountant's report prepared by Ms Danae Coombs of Paramount Wealth Accountants (Coombs Report) under Ms Coombs' covering letter of 24 March 2015 to Mrs Orohoe, Mr James Orohoe and Mrs Sheila Ivankovich (exhibit 2.194, TB pages 940 ‑ 955);
(e)Fifth publication complained of: Mrs Aikman's email of 17 April 2015, subject: Re: Owners' Correspondence, sent to Mr Hans Beyer (copied to Mr Rakich, Mrs Orohoe and Mrs Ivankovich) (exhibit 2.196 (part), TB pages 959 - 961); and
(f)Sixth publication complained of: the transcript of words it is accepted that Mrs Aikman spoke at the 10th AGM of the Seashells Mandurah strata company. The meeting was held at Floreat Library on Thursday, 4 June 2015 (the 2015 AGM). (As I will explain, there are three subcomponents to Schedule F.)
I should point out that, as pleaded by the plaintiffs, not all words of the publications described above are complained of as being defamatory. Rather, as pleaded under the last iteration of the plaintiffs' statement of claim (FASOC), only certain words within the five emailed publications are selected and identified by the plaintiffs as being defamatory. To that end, see:
(a)FASOC pars 11.1 to 11.3 for the email of 28 July 2014;
(b)FASOC pars 15.1 to 15.6 for the email of 17 October 2014;
(c)FASOC pars 19.1 to 19.13 for the email of 2 April 2015;
(d)FASOC pars 23.1 to 23.50 for the Coombs Report; and
(e)FASOC pars 27.1 to 27.13 for the email of 17 April 2015.
As a matter of convenience and context, I will highlight (by using bold typeface) the pleaded words in the FASOC that are specifically complained of from each written publication by each plaintiff in the schedules to these reasons. They can then be read and assessed there in an overall context, within each individual schedule.
As regards Mrs Aikman's spoken words at the 2015 AGM, being the sixth publication complained of, I have collected first (as Schedule F1) the content of par 31.1 of the FASOC concerning that alleged defamatory publication.
I then collect as Schedule F2 pages taken from a prepared transcript of that AGM. This was exhibit 2.209 (see TB pages 1012, and 1053 - 1066). Mrs Aikman's words alleged as being defamatory are highlighted in bold from TB page 1062 - noting an erroneous reference there to a 'Ms Hagman' that should be corrected to refer to Mrs Aikman. That correction was accepted at trial.
Thirdly, I have assembled as Schedule F3 the extracts from the prepared minutes of that AGM, see exhibits 2.208, TB pages 1000 - 1002 and 1007 - 1009.

Overview of the six publications complained of from a defamation perspective

As regards all six allegedly defamatory publications, there is no dispute in the litigation over the content of what was published by Mrs Aikman.
However, it is disputed whether the necessary levels of identification have been established for all three plaintiffs regarding each publication.
It is the basal defence of Mrs Aikman that she denies ever defaming anyone. But she says, further, that if she did defame any one of the plaintiffs, all her six communications are protected in any event against possible defamation exposures. That protection is sought from either or both common law or statutory qualified privilege. These privileges, Mrs Aikman argues, fully protect her six communications from any possible defamation exposure - given the circumstances applicable to her personal situation as a Seashells Mandurah strata lot owner on all occasions in question as regards her publications.
Each of the plaintiffs raises strong issue against Mrs Aikman's assertion as to holding a qualified privilege against defamation, howsoever derived. That clash delivers most of the factual issues in dispute in the trial. Considerations of reasonableness arise (objectively assessed) to be applied towards the circumstances of Mrs Aikman's six publications - in order to qualify for statutory qualified privilege via s 30(1)(c) and s 30(2) of the Defamation Act.
The plaintiffs also say that Mrs Aikman is to be disqualified, in any case, from enjoying any level of qualified immunity against her exposure to defamation regarding five of the six publications (at common law or by statute). (Malice is not being alleged in respect of the third publication.) They contend that even if Mrs Aikman otherwise meets the criteria to enjoy such qualified privilege(s) against defamation, her entitlement is lost in the prevailing circumstances. This is because, they say, Mrs Aikman was at all times motivated by her disqualifying levels of malice, as against all plaintiffs, as she made five of her six publications.
In practical terms for a defamation trial, the serious allegation of a defendant's malice, as is raised here by all plaintiffs, is the charge that when Mrs Aikman emailed the other Seashells Mandurah strata lot owners, or when she spoke from the floor at the 2015 AGM, that her true or dominant intention at those times was malevolent towards all plaintiffs. In other words, they say that she was intending to injure them by these publications and/or to advance her own rival commercial interests.
So it is that the plaintiffs contend, in effect, that Mrs Aikman was not just trying to literally convey what she wrote or said by her publications. Rather, they say, in effect, that Mrs Aikman's intent was to retaliate against the plaintiffs over past perceived wrongs against her and to hurt and injure each plaintiff's reputation by her communications.
Another aspect of Mrs Aikman's alleged malevolent motives, it is put, arises out of her allegedly wishing to advance the commercial interests of her own rival strata management business, Waters Edge Luxury, against AW Co. Mrs Aikman was a rival business competitor against AW Co at Mandurah, and was seeking to secure strata lot owner management patronage - as against AW Co's rival strata management business being conducted at Seashells Mandurah.
In response, Mrs Aikman strongly denies she held or was affected by any collateral or malevolent purposes as regards the plaintiffs. She refutes any intent to injure the plaintiffs when she emailed or spoke as she did on the occasions in question. Mrs Aikman says, in effect, she wrote as she did or spoke as she did only in order to convey information to the email recipients she contacted or to the 2015 AGM attendees - to tell them frankly what she thought, to make a response, or to pass on what she thought was relevant information other Seashells Mandurah strata lot owners were entitled to receive.
Given all that, it was no surprise that the cross-examination of Mrs Aikman at the trial was targeted heavily at establishing the plaintiffs' malice propositions - propositions Mrs Aikman always firmly rejected.
Two of the four emails Mrs Aikman sent were to Seashells Mandurah strata lot owners who were then sympathetically aligned with her concerns and whose Seashells Mandurah strata units Mrs Aikman managed at the time. These are the first and fifth publications, being the emails of 28 July 2014 and 17 April 2015, which Mrs Aikman had sent to Mrs Orohoe and to Mr Beyer respectively.
There is no factual dispute that Mrs Orohoe and Mr Beyer were then strata lot owners at Seashells Mandurah. At the time they essentially shared, along with Mrs Aikman, what were common and genuinely held underlying concerns about the management of the Seashells Mandurah resort as regards their properties. Rightly or wrongly, they all then held high levels of dissatisfaction - over how the overall Seashells Mandurah resort was being managed by the strata company responsible for Seashells Mandurah (and conduct by that strata company's agents, including by AW Co). These common concerns extended to how the strata company was being controlled.
A disaffected group of strata lot owners, broadly aligned with Mrs Aikman's concerns, was a lively but numerical minority of strata lot owners at Seashells Mandurah at the time. This action is largely grounded upon communications passing between that cohort and, by the sixth publication, what was said at the 2015 AGM.

Principal parties and participants

The plaintiffs led evidence from the second and third plaintiffs, Messrs King and Rakich. Mr King provided three separate witness statements. These became exhibits 3, 4 and 18 by consent. Mr Rakich provided two witness statements. These became by consent exhibits 5 and 6. Neither Mr King nor Mr Rakich entered the witness box or were cross‑examined upon their responsive witness statements. That is another somewhat unusual occurrence in a defamation trial.
More witness statement evidence was provided for the plaintiffs from independent witnesses. I received the witness statements of Mr Gareth Thomas (exhibit 7), Ms Susan Knowles (exhibit 8), Mr Bram Newbold (exhibit 9) and Ms Sue Peterson (exhibit 17). A small number of evidentiary objections were initially raised to some paragraphs within these statements. Excisions followed on that basis. However, as with the statements by Messrs King and Rakich, Mrs Aikman did not require any of the plaintiffs' witnesses to be cross-examined on their statements. They were consequently tendered and admitted to evidence as exhibits.
Mrs Aikman was the only witness for the defence. She provided four witness statements. Her primary statement of 13 October 2016 became exhibit 11. The plaintiffs objected to a number of paragraphs within Mrs Aikman's primary statement. But ultimately most of her statement came to be admitted on the basis that many paragraphs were received only on the limited basis of being directed either to show her state of knowledge at a particular time or to her state of mind at a particular time. Paragraphs admitted on this limited basis were collected in a schedule tendered at the trial, becoming exhibit 12. Consequently, Mrs Aikman's primary statement (exhibit 11) needs to be read carefully by reference to the limitations and qualifications accepted under exhibit 12.
Mrs Aikman relied upon three further supplementary witness statements. These became exhibit 13 (dated 11 November 2016), exhibit 14 (dated 18 November 2016). Her final supplementary statement (dated 28 October 2016) was made in response to Ms Knowles' statement. It became exhibit 15. That responsive witness statement addressed pars 8 - 16, 19, 20 and 24 of Ms Knowles' witness statement (exhibit 8).

Unlike for the plaintiffs' witnesses, Mrs Aikman was extensively cross‑examined for just over a day upon her four statements by counsel for the plaintiffs.
As already mentioned, it is necessary to always keep firmly in mind that the witness statement trial evidence tendered on behalf of the plaintiffs was admitted without cross‑examination. In the main, therefore, it is to be accepted as unchallenged evidence.

Seashells Mandurah: The interconnecting management structures

There are a number of Seashells Resorts operating around Western Australia, including at Scarborough, Broome, Busselton and Yallingup.
Seashells Resorts provide the general public with resort short stay style accommodation, usually close to beachfront locations and catering for holiday makers, tourists, weekenders etc. But it is the diverse underlying ownership of the multiple individual strata lots which, operating together, make up Seashells Mandurah that is important here. That is the context of the present somewhat complex business relationships.
A corporation connected to Mr King, Comet Bay Properties Pty Ltd (Comet Bay) had developed the land, created and then sold off 107 strata lots that form the location of the Seashells Mandurah apartment lots.
Mr King is the dominant personality and human hand behind Comet Bay and, indeed, the Seashells Resorts across Western Australia. However, Comet Bay was placed in receivership by its lenders in March 2009, after the effects of the global financial crisis struck in late 2008. Sales of individual Seashells Mandurah strata lots to diverse purchasers had enabled the developers to recover some of the capital outlays in building and developing the resort. As in any strata development of this kind, upon completion of the development there was a need for a dedicated corporate strata body entity which would manage the common property of the strata location and, generally, to discharge the multiple obligations arising around strata properties under the Strata Titles Act 1985 (WA) (as amended).
The dedicated strata company for Seashells Mandurah was the Owners of Strata Plan 48817. It is the strata body corporate required by s 32 of the Strata Titles Act.
Under the Strata Titles Act each strata lot owner enjoys a right to attend and vote at meetings of the strata company. There must be at least one annual meeting of lot owners, which is the AGM. There is a council of owners elected for a strata company each year. That council provides the day‑to‑day executive decision‑making function for the strata company. There is a chairperson of the council.
Some purchasers of the strata lots at Seashells Mandurah acquired their lots with the intention of residing there permanently. Others, like Mrs Aikman, resided elsewhere and had purchased, in effect, as investors. They would enjoy a share in pooled rental income returns received from visitors to Mandurah who rented and stayed in their strata lots as short stay accommodation.
In addition to a share of the rent return, strata lot owners at Seashells Mandurah could enjoy a level of personal access to their strata properties - so they could holiday at their apartment themselves by giving notice of that intended self use from time to time, as they desired.
The underlying Seashells ownership advantage then was to, in effect, try and get the best of both worlds, first by owning an investment strata property and, secondly, by being able to take a holiday personally at a seaside location when desired.
For such objectives to be achieved, there was a need for an efficient underlying management system for the Seashells Mandurah apartments as a whole, in order to run a short stay accommodation business using the pooled properties owned by a diverse array of aggregated strata lot owners. The apartments needed to be managed to be let out, then reliably cleaned and maintained, etc. Rental receipts were to be pooled, expenses paid out and net receipts fairly apportioned between the participant strata lot owners.
The system put in place at Seashells Mandurah from a management perspective was achieved by three pivotal contractual arrangements all entered in 2006 by the strata company with AW Co.
AW Co became what is called a 'strata manager', performing services for the strata company. Mr King, again, was the moving hand, as sole director of AW Co. Mr Rakich, as I mentioned, is said to be AW Co's sole employee.
Upon Comet Bay's completion of the Mandurah development, all three pivotal long‑term five-year management contracts were in place, entered in 2006 between the strata company and AW Co. An option to renew these long‑term management contracts for further terms of five years was left at the behest of AW Co (ie, not at the election of the strata company).
AW Co then moved to subcontract out all work in managing the short stay hotel-like resort operation at Seashells Mandurah. This work was contractually given to Seashells Hospitality Group Pty Ltd (SHG).
SHG, who was contractually responsible for running the Seashells Mandurah business, was another corporation associated with and, again, ultimately controlled by Mr Paul King.
Hence, it may be seen that Mr King had a 'finger in multiple corporate pies' at Mandurah. In addition, what appears to be Mr King's family company, Westco Investments Pty Ltd (Westco) owned at least one lot in the Seashells Mandurah development. Mr and Mrs Rakich also owned an apartment through their family company. Mr King was also elected to the Council of Owners for the strata company responsible for Seashells Mandurah.
A lot owner at Seashells Mandurah could choose to have AW Co arrange and manage the external letting of their unit - as part of an overall pool of Seashells Mandurah apartments made available to the general public for rent as short stay accommodation. Or they could manage their unit personally and privately let it out when they chose. That was what Mrs Aikman eventually decided to do with her apartment.
If an owner wished to have AW Co manage their strata lot for letting out to the general public as a part of the Seashells Mandurah resort, they needed to sign up to a management contract with AW Co or with SHG authorising all that. An invariable term of such a contract was that the lot owner needed to give their proxy vote for strata company meetings (upon most issues) to AW Co. Most of the 107 lot owners chose to do that. The end result was body corporate block voting control and from there, the control of the Council of Owners of the strata company via what might be seen as the AW Co or SHG aligned majority block voting interests.
Most, but not all, Seashells Mandurah lot owners were amenable to entering contractual management and letting arrangements with AW Co and SHG regarding their apartments. But some owners, like Mrs Lazarus, Mrs Orohoe, Mrs Ivankovich, Mr Beyer and others, preferred to have their apartment lots independently managed by someone other than AW Co, SHG or any entity affiliated with Mr King. Instead, they used Mrs Aikman's rival management services.
Mrs Aikman had managed her own lot at Seashells Mandurah from about 2009. She held some background in real estate management. Mrs Aikman subsequently offered her personal management services to lot owners at Seashells Mandurah, in effect, as an alternative management competitor to the services of AW Co and SHG. Some competitive tensions were almost inevitable in that Seashells Mandurah environment.
The underlying management structure that was used for Seashells Mandurah is more complex than the broad overview which I have now given. It was helpfully explained in the first four paragraphs of the Coombs Report: see pages 943 - 944, section 1.1 Background in Schedule D attached, which read:
1.1Background
Strata Plan No. 48817 (the strata company) appointed Accommodation West Pty Ltd as the strata company manager under the Strata Management Agreement (SMA) dated 17 March 2006 to manage the affairs of the strata company. The strata company also appointed Accommodation West Pty Ltd as caretaker of the property under the Caretaking Agreement signed 17 March 2006 and as the on-site manager under the On-Site Managers Agreement dated 17 March 2006.
Comet Bay Properties Pty Ltd (Comet Bay) was the original developer of the property and was the sole owner of all of the strata lots and the only member of the strata company at the time it approved the agreements with its related company Accommodation West Pty Ltd. Comet Bay was required to arrange caretaking services and on-site letting services under the Management Rights Scheme which it was promoting at the time. Approximately half of the total number of lots under SP No. 48817 participate in the letting pool, known as Seashells Resort Mandurah.
The accounting and finance functions for the Mandurah property are performed by staff at Seashells Hospitality Group Pty Ltd ('SHG'), who also attend to the accounting duties for the other Seashells Group properties. SHG is directly related to Comet Bay and Accommodation West and the financial statements for the strata company are not prepared by an external accountant nor audited.
As Accommodation West is the strata manager and the on-site letting pool operator and the caretaker, it must clearly demonstrate that, in its capacity as strata manager, its decisions and actions are not affected by conflict of interest and are never to the detriment of the strata company. Further, the lack of independence within the accounting and reporting functions requires a very high level of transparency in reporting to the unit owners.

AW Co's position

Mr King, according to his third witness statement of 28 November 2016 (exhibit 18), is the sole director of AW Co.
AW Co was once known as King & Rogers Real Estate Pty Ltd and was established in May 1986.
Mr King explains at par 12 of exhibit 3 that in 1994 he set up another corporation, Seashells Resorts (WA) Pty Ltd. That was with his then partner Ms Fiona Cox. The corporation was later renamed Seashells Hospitality Group Pty Ltd - which is referred to in Mr King's statements as SHG.
Mr King says at par 12 of exhibit 3:
Fiona and I were the only directors of SHG until Fiona ceased being a director of SHG in November 2016.
He then explains at par 13 that SHG was set up
as a vehicle through which Fiona and I could provide dedicated hospitality services in order to operate the ongoing managements of short stay accommodation.
SHG and AW Co, through the common input of Mr King, worked closely together. For instance, see par 2.2 of the FASOC which describes the provision of services by AW Co in Western Australia as a 'strata manager and manager of an on‑site short-stay accommodation letting pool for Seashells Mandurah' pursuant to three different 2006 contractual agreements. The third of those agreements is an on‑site managers' agreement of 17 March 2006 pursuant to which AW Co operates through SHG in delivering that management function.
Mr King, at par 5 of exhibit 3, says he is the managing director of SHG. But very little further information about that significant managing entity, particularly its shareholding, is otherwise provided for the purposes of this trial. Clearly, there is a close working link between the boards of management of AW Co and SHG, through the common directorship of Mr King. Beyond that, however, the degree of interrelationship as between the two corporations is left somewhat obscure for trial purposes.
In his witness statement (exhibit 18), Mr King deposes at par 2 that the corporation Westco acquired all the issued shares in AW Co from the corporation Homestead Holdings Pty Ltd. He explains that Westco acquired all the AW Co issued shares in its capacity as the trustee of a trust. The trust is the Three Amigos Family Trust. The trust deed and deed of appointment are exhibit 16.
Mr King, by his witness statement (exhibit 18), appends a document prepared by AW Co's accounting practice. It shows that AW Co's issued share capital of 20,002 ordinary shares is beneficially owned by the Three Amigos Family Trust, not by the trustee, Westco. The same document was appended to a further statement tendered by the plaintiffs late in the trial, and which did not result in any required cross-examination of the deposing witness, Ms Peterson, an accountant.
Ms Peterson's evidence confirms (exhibit 17, par 10) there have been no changes to the information concerning the shareholdings in AW Co since October 2009. This must be accepted.
The trust deed (exhibit 16) indicates that the Three Amigos Family Trust is a discretionary trust, essentially established to provide capital or income benefits to Mr King and his family.
As regards AW Co's overall financial position, no financial details were provided at all at trial in respect of AW Co's assets or liabilities. There was no current balance sheet or profit and loss statement showing the performance of AW Co as a trading corporation.
From par 2 of the FASOC (read with Mrs Aikman's pleaded defence) it appears to be admitted that the strata management services provided by AW Co in respect of Seashells Mandurah had previously been provided by AW Co to another strata plan entity known as Seashells Yallingup until 1 December 2013. Additionally, similar strata management services which had been provided by AW Co to another strata title property known as Seashells Scarborough had ceased to be provided in approximately 2000.

AW Co as an excluded corporation

AW Co contends that it may sue in defamation as it qualifies as an excluded corporation under the Defamation Act.
By s 9(2)(b) of the Defamation Act a corporation that is not a public body is an excluded corporation if it employs less than 10 persons and is not related to another corporation.
The evidence is that AW Co only had one employee, Mr Rakich. This was confirmed by Mr Rakich at par 8 of his responsive witness statement signed 16 November 2016 (exhibit 6). This fact was uncontradicated at trial. If AW Co is not 'related' to another corporation then AW Co can legitimately bring an action in defamation for injury to its business reputation.
At the commencement of the trial, there were some doubts initially raised over this threshold issue - on the basis that search material then available showed that all of AW Co's shares were owned by Westco (see exhibit 2.236, TB page 1180). On that basis, AW Co would have been a corporation that was 'related' to Westco - with Westco being its corporate parent. If AW Co's shares were beneficially owned by Westco as the initially provided search materials suggested, then AW Co could not meet the threshold set under s 9(2)(b) of the Defamation Act to be an excluded corporation, given a subsidiary/parent corporate relationship.
However, as the trial unfolded, closer examination of the search materials disclosed that Westco did not hold its shares in AW Co beneficially. So much is designated by the notation 'N' that may be seen in the search.
The evidence tendered during the trial from the plaintiffs showed Westco held its AW Co shares only as a trustee and not as the beneficial owner. It was the Three Amigos Family Trust that owned the 20,002 ordinary shares beneficially. Westco was trustee of that trust. But the trust beneficiaries were tied to Mr King and his family.
In those circumstances, s 9(4) of the Defamation Act invoking, by reference, s 50 of the Corporations Act 2001 (Cth) towards assessing whether or not a corporation is related to another, looks to be engaged to favour AW Co being an excluded corporation - and thus eligible to sue as a defamation plaintiff. Section 50 needs to be read in conjunction with s 48 of the Corporations Act. Section 48(2) excludes 'any shares held, or power exercisable, by the other body in a fiduciary capacity' which are then 'treated as not held or exercisable by it'.
Shares held on trust by a trustee meet the fiduciary capacity exclusion.
Essentially then, what was initially thought as a non‑suit problem for AW Co, on the basis of it having all its shares held by Westco, was alleviated by an outcome which saw a non-application of s 50 of the Corporations Act. Consequently, AW Co may bring this defamation action as an excluded corporation. I should observe that as a corporation plaintiff in defamation, AW Co does not have any personal feelings capable of being injured in defamation for the purposes of assessing a defamation damages award if AW Co is ultimately successful.

Mr King's position

I have already mentioned Mr King's three witness statements provided as his evidence-in-chief and that Mr King was not required to be cross‑examined upon his statements at the trial.
I note from par 3 of the FASOC that it is contended by Mr King (and is admitted by the defendant) that:
(a)Mr King is the natural person who controlled the corporation, Comet Bay. That corporation had undertaken the development of Seashells Mandurah. It is also admitted that Comet Bay was responsible for entering into the three pivotal management contracts of 17 March 2006, which are referred to in par 2.2 of the FASOC. Those three agreements set down the platform upon which AW Co came to act as a strata manager and manager of the on‑site short stay accommodation letting pool established for Seashells Mandurah. It is a strata location comprising 107 strata lots which are used for various residential, commercial or short stay tourist accommodation purposes (see par 1 of the FASOC, which is also admitted).
(b)Mr King, at material times, was a member of the Council of Owners for Seashells Mandurah (or, in other words, Mr King was a member of the council for the strata company for Strata Plan 48817 that was established under the Strata Titles Act). That statutory corporate entity is a body that is wholly separate from AW Co - although the contractual arrangements perfected in 2006 see that AW Co provides its strata management services to the strata company.
Paragraph 3.2 (which is not admitted) of the FASOC contends Mr King was at all material times 'the natural person who controls Westco Investments Pty Ltd, which is and at all material times was, the proprietor of strata lot 16 within Seashells Mandurah'. Nevertheless, I accept that to be the case as a finding of fact.
It would appear, on the basis of the plea in par 3.2, that Westco is the trustee in respect of the 20,002 issued shares in AW Co. That trustee corporation is also the proprietor of strata lot 16 at Seashells Mandurah. It is controlled by Mr King.
One of the documents tendered at trial along with exhibit 16 is a deed of appointment and removal of trustee for the Three Amigos Family Trust. This shows a deed of variation of 10 March 2009. It records that (recital D) on 10 March 2009 receivers and managers were appointed to a former trustee of the trust, Homestead Holdings Pty Ltd, and that from 10 March 2009 a new trustee had been appointed. The new trustee was Westco.
Exhibit 2.227 is an Australian Securities and Investments Commission (ASIC) current and historical search for Westco. It shows the current directors are Messrs King and Gareth Edward Thomas (who was appointed on 16 September 2015). Mr King is also the company secretary, having been appointed on 1 July 1996 (the same day he was appointed director). There are only two issued ordinary shares in this corporation. One is held by Mr King, both legally and beneficially. The other is held by a corporate entity Ventnor One Pty Ltd - albeit the ASIC document notation is that this share is not beneficially owned by that corporation.
Mr King's witness statement (exhibit 3) recalls his establishment of SHG with Ms Cox in 1994. He discusses establishing stage 1 of Seashells Scarborough (13 apartments) in 1994. Stage 2 was opened in 1996. He relates that he received advice in the late 2000s to set up separate management companies for each of the Seashells resorts which he had established at Scarborough, Broome, Mandurah and Yallingup by then (par 16). He relates that Seashells Broome was officially opened in 1998 and AW Co was appointed by Blackpool Development Company Pty Ltd as strata manager for Seashells Broome (par 22).

Mr King then relates that Seashells Yallingup was completed in November 2007. He says that difficulties with the Western Australian Planning Commission held up the issue of titles for nine months, resulting in $9 million worth of sales being delayed. Again, AW Co was appointed the strata manager, presumably by Yallingup Ridge Pty Ltd, which had acquired the former Caves House Hotel and some surrounding heritage listed gardens in 2005. Mr King relates that AW Co resigned as strata manager of Seashells Yallingup in December 2013.
Concerning Seashells Mandurah, Mr King relates that development of a property at 16 Dolphin Drive, Mandurah was commenced by Comet Bay in 2003 towards development of a complex that later became known as Seashells Mandurah.
Seashells Mandurah was established under an ASIC Management Rights Scheme which required the three pivotal contractual management agreements of 17 March 2006, to which I have referred.
AW Co was appointed by the strata company as the strata manager, on‑site manager, and caretaker. Mr King explains that SHG granted a conditional licence to Seashells Mandurah Pty Ltd to use the name 'Seashells' and 'Seashells Resort Mandurah' and to use registered trademarks which were the property of SHG for marketing and sale of lots and for the operation of the 'Resort'.
There were three stages in the development of Seashells Mandurah. At par 34 of exhibit 3 Mr King says:
Stage 1 was completed in about December 2005 and upon opening, Accommodation West held each of the Strata Management Agreement, the Caretaking Agreement and the On-Site Managers Agreement.
SHG was subsequently appointed in December 2005 as the on‑site manager. Mr King says SHG subsequently appointed Seashells Resort Mandurah Pty Ltd as the on‑site manager in approximately 2007.
Whilst stages one and three of the planned development were completed, stage two, involving a development of a further 108 apartments, has not commenced (par 33). Stage three was completed in November 2007. The global financial crisis of late 2008, Mr King says, resulted in the project financier, St George Bank, appointing receivers to Comet Bay and to Yallingup Ridge Pty Ltd in March 2009 (but, significantly, not to AW Co or to SHG).
Yet another corporation with which Mr King was associated, namely Project Marketing Australasia Pty Ltd, was established in 1989 (exhibit 3, par 7). It appears to have been involved with the Seashells Mandurah project at around June 2009 (par 45). Mr King says that the land which had been approved for stage two of the development at Seashells Mandurah came to be purchased by Doric Construction Pty Ltd from the receivers in March 2010 (par 47).
Mr King relates that from June 2003 the defendant, Mrs Aikman, had been employed as a property manager for AW Co. He personally had little direct contact with her during her employment. Mrs Aikman was then known under the name Susan Wagner, and in that name she purchased a strata lot at Seashells Mandurah under a sales contract of 5 September 2003. Mr King states that Mrs Aikman left AW Co's employment three to four months after the commencing of her employment.
Mr King relates his involvement in February 2008, concerning a letter which he wrote to owners of strata lots in Seashells Mandurah about Mrs Aikman's alleged contact with owners - over a requested convening of an owners' meeting (see exhibit 2.107, TB page 468).
Mr King next relates some of his interactions with Mrs Aikman through correspondence concerning what he says was her objectionable use of the trading name 'Shells By The Sea'. He recounts how Mrs Aikman had set up a competing strata management business in May 2011. That event led to SHG engaging lawyers as a result of a misuse of that business name by Mrs Aikman. SHG subsequently initiated Magistrates Court proceedings in October 2013 against her. Mr King says he attended the civil trial in March 2014, at which he says that SHG was ultimately successful (par 61).
Mr King next describes how he became aware of, and objected to, Mrs Aikman storing linen and cleaning products in a garage at lot 3 at Seashells Mandurah at around January 2013. He attended a mediation at SAT over that issue.
Mr King next recalls his attendance at what he refers to as the Seashells Mandurah's AGMs of 30 May 2011 (par 62), 4 June 2014 (par 66) and 4 June 2015 (par 67). More precisely, Mr King would appear to be referring to the AGM meetings of the strata body corporate in respect of the Strata Plan 48817, rather than at any meeting of the corporation Seashells Mandurah Pty Ltd (the corporation referred to in par 31) or of AW Co. Mr King personally confirms the correctness, according with his recollection, of each of those AGM minutes.
Finally, Mr King (at par 68) speaks of his involvement in events arising during September 2013, as regards his evaluating a potential offer for SHG to purchase Mrs Aikman's apartment at Seashells Mandurah and also to purchase her strata management business, Waters Edge Luxury. Mr King would appear to have been overseas through a period of September 2013. He says he was dealing with this matter from some distance away. At all events, despite a great deal of passing correspondence back and forth between SHG's solicitors, Summers Legal, and Mrs Aikman's solicitors at the time, Baldivis Law and Mediation, no final and binding agreement to acquire her unit or her business at Mandurah was ever reached.
Mr King's responsive witness statement (exhibit 4, dated 17 November 2016) provides details about his wider community involvements with organisations such as Floreat Rotaract and the Royal Perth Yacht Club since 1980. A significant component of this statement covers many industry related awards given to SHG and its receipt of national and state awards - none of which concerns AW Co and so is not particularly relevant.
Apart from relating (at par 67) his attendance at and confirmation of the minutes for the 2015 AGM, Mr King's witness statement does not seek to address any of the six allegedly defamatory publications that are the subject of these proceedings.
Mr King's statements do not assert any level of hurt, distress or repercussions associated with Mrs Aikman's allegedly defamatory publications from a personal perspective or, indeed, from the perspective of AW Co.

Mr Rakich's position

Paragraph 4 in the FASOC is a plea admitted by Mrs Aikman's defence pleading. It contends Mr Rakich is and was at all material times:
(a)employed by AW Co to act as the strata manager for Seashells Mandurah, and was the natural person who performed the strata manager's functions. (The plea in par 2.2 of the FASOC refers to AW Co as the strata manager and manager of the on‑site short stay accommodation letting pool for Seashells Mandurah by reference to the three identified written agreements of 17 March 2006.)
Hence, I assess the plea at par 4 to essentially contend that AW acted through its sole employee, Mr Rakich, in discharging strata management functions for Seashells Mandurah.
(b)a natural person who controls TDS Investments Pty Ltd, which is, and at all material times was, a proprietor of strata lot 62 at Seashells Mandurah. The repercussion of this contention is that Mr Rakich is not just the sole employee of AW Co in performing all its functions as required, particularly as strata manager for Seashells Mandurah. Mr Rakich (with his wife) is also resident at Seashells Mandurah at lot 62, a property owned by TDS Investments Pty Ltd and controlled by Mr Rakich; and
(c)a member of the Council of Owners of Seashells Mandurah. In this respect, the plea, which is admitted, is that Mr Rakich, along with Mr King, is a member of the Council of Owners that was elected for the strata company.
Mr Rakich provided two witness statements for the purposes of the trial as his evidence-in-chief. His main witness statement of 7 October 2016 became exhibit 5. As said, Mr Rakich's shorter responsive witness statement, signed 16 November 2016 became exhibit 6. As mentioned, Mr Rakich was not required to be cross‑examined at trial upon these two statements.
In summary, Mr Rakich, by exhibit 5, explains his longstanding business relationship with Mr King, extending back some 35 years. He also says that he has known Mrs Aikman since late 2003 or early 2004. He relates that AW Co has employed him as the strata manager since 2011.
Mr Rakich was a director of Comet Bay between 2002 and 2008. Since 2002 he has been a director of Project Marketing Australasia Pty Ltd, again with Mr King.
Between September 2011 and November 2013, Mr Rakich says that he was the strata manager for Seashells Yallingup - by which I understand him to be saying that he was the natural person implementing or causing to be performed all tasks and duties that needed to be performed by AW Co across that period in the strata manager role.
Commencing at par 8, Mr Rakich explains his association with Comet Bay and then the development of Seashells Mandurah in terms that align with Mr King's statement.
Mr Rakich relates how his corporation, TDS Investments Pty Ltd, purchased strata lot 62 off the plan in or about 2003 (par 21) and how since then he has been a longstanding member of the Council of Owners of the strata company. That has been the position since the first meeting of that company in March 2006, which he attended with Mr King.
Mr Rakich remained a member of the Council of Owners until June 2015.
Mr Rakich explains his role as strata manager of AW Co for Seashells Mandurah at par 35 of exhibit 5 in rather brief and generalised terms, explaining his duties as:
(a)acting as the secretary and treasurer of the strata company;
(b)exercising and performing the powers and duties specified in the Strata Titles Act; and
(c)managing the affairs of the strata company.
The observations above would appear to be more directed at the strata body corporate, rather than at AW Co.
Commencing at par 37, Mr Rakich relates his interactions with Mrs Aikman from late 2003 or early 2004, when she had been employed as a property manager by AW Co at Seashells Scarborough.
Mr Rakich relates (par 43) how Mr Thomas became SHG's Chief Operating Officer (COO) in about 2011. Mr Thomas had looked into the issue of why some proprietors at Seashells Mandurah had opted to leave the on‑site letting pool arrangements. Mr Rakich reports becoming aware in 2007 that Mrs Aikman was then carrying on a rival strata management business, under the name 'Shells by the Sea', which managed several apartments in Seashells Mandurah.
Mr Rakich says SHG sought legal advice in relation to that unauthorised business name use, albeit he was not directly involved. He relates how Mrs Aikman's on‑site letting business name subsequently changed to Waters Edge Luxury in about 2012.
Mr Rakich recounts various other matters, including the minor claim in the Magistrates Court against Waters Edge Luxury over claimed legal costs against Mrs Aikman and his attendance at various AGMs of the strata body corporate or at the Council of Owners' meetings between 2009 and 2012.
A component of Mr Rakich's statement at pars 58 to 66 is devoted to the events surrounding Mrs Aikman's business's use of the garage of strata lot 3 at Seashells Mandurah. This use was, he said, in alleged contravention of the strata company's by-laws and the on‑site management agreement, culminating in a commencement of SAT proceedings. The proceedings are explained at some length at between pars 67 and 96 of Mr Rakich's statement. He covers events over a period of 30 July 2013 to December 2013, before orders resolving that action were made by SAT.
These SAT events precede the first of the six defamatory publications complained about in this litigation by some seven months. Their contended ultimate relevance goes to issues of qualified privilege and malice - if those issues do become relevant in due course as regards Mrs Aikman and her six publications which are complained about as being defamatory.
Between pars 105 and 122 Mr Rakich relates further events concerning another SAT matter, CC 565 of 2014. These were SAT proceedings commenced on 29 April 2014 by Mr and Mrs Orohoe and by Mrs Ivankovich in SAT against AW Co. As I have already mentioned, Mr and Mrs Orohoe and Mrs Ivankovich were owners at Seashells Mandurah. They came to be aligned with Mrs Aikman at the time over their critical assessments upon the management of Seashells Mandurah.
The events related by Mr Rakich provide background to the SAT consent orders on 27 August 2014. Those SAT orders resulted in the forensic accountant, Ms Coombs, being appointed and permitted to inspect some limited financial records of the strata company for financial years ending 2011, 2012 and 2013. (Presumably, to the extent AW Co acted as agent towards an implementation of strata management tasks on behalf of the strata company, the SAT consent order envisaged the forensic accountant's entitlement to inspect AW Co's records within that management field.)
Commencing at par 127 of exhibit 5, Mr Rakich relates his attendance at the 2015 AGM, but with him noting that the transcript of that meeting contains some diverting inaccuracies, including what is an incorrect reference to Mrs Aikman as 'Ms Hagman'.
Mr Rakich relates personally preparing a verbatim transcript of the remarks spoken by Mrs Aikman at the AGM meeting, including her discussion with Mr Ward, and which Mr Rakich deposes to as being accurate. (I note that is not in dispute at the trial.)
Between pars 131 and 138 of his witness statement, Mr Rakich relates some personal interactions with Mrs Aikman in his capacity as AW Co's strata manager across the period January 2013 to June 2015. This is essentially by reference to his communications with her in the nature of passing email correspondence.
Mr Rakich's responsive witness statement, exhibit 6, relates that he was awarded the Order of Australia for his service to cricket, business and commerce in 2005. He also relates an association with other non-business institutions.
Under pars 5 to 7 of exhibit 6 Mr Rakich provides further details concerning Mrs Aikman's acquisition of her Seashells Mandurah unit in 2003 and the 3% discount on sales commission time, as well as a stamp duty concession that he says she received at the time.
None of the above evidence is contradicted and may be accepted.
I note that, like Mr King, Mr Rakich does not relate experiencing any personal distress, inconvenience or aggravation arising, from his perspective, as a result of any of Mrs Aikman's six allegedly defamatory publications which are complained of in the litigation.

Mrs Aikman's position

I have already mentioned four witness statements (exhibits 11, 13, 14 and 15) filed on Mrs Aikman's behalf towards her strongly resisting all the defamation allegations put against her (with exhibit 11 to be read, as I have mentioned, by reference to the limitations and qualifications accepted under exhibit 12).
In exhibit 11, Mrs Aikman recalls her purchase of her apartment, number 29, at Seashells Mandurah in September 2003 as being an off the plan purchase from Comet Bay.
She next relates various other matters, including the increasing disenchantment shortly after acquiring her property over the management of her unit and then her conversations with other owners upon that topic at around 2006 and 2007.
Mrs Aikman explains her withdrawal of her apartment from the letting pool arrangements in January 2008. From then she rented her apartment out herself. She found this a better financial option for her than staying within the Seashells Mandurah aggregated letting pool arrangements.
Mrs Aikman recalls her establishment of her own property management business at Mandurah around December 2008, conducted from late 2008 until November 2015. She says she managed in this period about 25 apartments at one time (out of the 107 apartments in total at Seashells Mandurah).
Mrs Aikman then describes some further management concerns of herself and of other owners across 2009 to 2011, leading up to the questions she asked at the strata company's AGM in May 2012 - concerning the relationship between AW Co as strata manager and SHG as resort manager.
Mrs Aikman describes events from 2013 onwards, relating to even more concerns she held about the management of the Seashells Mandurah resort and the AGM she attended of May 2013, which she describes as 'acrimonious'. She mentions another concerned owner, Mrs Orohoe, and a subsequent letter of 19 May 2013 that Mrs Orohoe sent to the owners.
Mrs Aikman relates further events between the strata company's AGMs occurring on 25 May 2013 and 4 June 2014.
From par 43 of her statement she explains her involvement in the SAT proceedings. She summarises her position at 28 July 2014, the date of the first defamatory publication complained of against her by the plaintiffs, in these terms (at par 47):
A.I personally had expressed a number of concerns and complaints about the management of the property, particularly in relation to conflicts of interest and voting rights.
B.Numerous other owners had expressed concerns and complaints, particularly about the management of the property and the conflicts of interest of the plaintiffs, about incompetence on the part of the first plaintiff, about its unwillingness to disclose financial information despite being requested by owners to do so, about the caretaker's apartment, about the accounts and budget and about the absence of proxies that were supposedly held.
C.Proceedings had been commenced by two (in effect) owners in the SAT in an attempt to compel disclosure by the first plaintiff of books and records that contained information of a financial nature and that at least some of the owners wanted to know about, or to compel an audit of those books and records.
D.Numerous allegations had been made against me by or on behalf of the plaintiffs and to which I had made counter-allegations.
E.There was considerable concern on my part and on the part of some other owners that the plaintiffs were simply trying to gag any owners from expressing concerns or criticisms and from seeing the financial records of the Strata Company.
F.The third plaintiff (ie Mr Rakich) had made clear that he wanted the owners to know, and that they were entitled to know, of everything that was going on, and why.
At par 48 of her witness statement Mrs Aikman says that the owners at Seashells Mandurah who expressed most concerns, as far as she was concerned, were:
(a)herself;
(b)Mrs Lynn (and Mr James) Orohoe;
(c)Mrs Sheila Ivankovich; and
(d)Mr Hans Beyer.
So much can be accepted as a matter of fact well established by the trial evidence. It is borne out by many documents in the TB.
Mrs Aikman's witness statement then specifically addresses the first email that is complained of at pars 49 to 51, as regards its publication to Mrs Orohoe.
She then discusses the second publication complained of, being her email of 17 October 2014 sent to a Mr Di Prinzio and to Mrs Lazarus (pars 52 to 55). Mrs Aikman says she considered she had a duty to publish the information in the email because she says (par 55E) it was important for
Leanne Lazarus, as an owner, client of mine and the intending seller of the apartment, and her agent Mr Di Prinzio to be aware of such information as I was aware of.
The third and fourth publications complained of against her are discussed at between pars 56 and 64 of exhibit 11. This discussion culminates again in her assertions, in effect, as to a perception that she was under a duty to publish the Coombs Report more widely and that her recipients all had an interest in receiving the information from her. That was, she explains, because they were 'nearly all clients of mine and secondly, they were owners and, thirdly, they were entitled to know the results of the investigation undertaken by Ms Coombs' (par 61).

Paragraphs 65 to 72 of exhibit 11 significantly address a fifth matter complained of, namely, Mrs Aikman's email of 17 April 2015, sent to Mr Beyer and also copied to Mrs Orohoe and Mrs Ivankovich. At pars 69 and 70 Mrs Aikman again relates her beliefs concerning her duty to publish that information to Mr Beyer, who she describes as 'a fellow disgruntled owner'. Mrs Aikman says she believed Mr Beyer had an interest in receiving the information as a (fellow) owner of an apartment in the building, and also she says because he was particularly 'disillusioned with the management by the plaintiffs of the property'.
At pars 73 to 76 of exhibit 11 Mrs Aikman discusses the sixth (last) publication - being her spoken words at the 2015 AGM (but erroneously referred to there as the fifth matter complained of).
Mrs Aikman at par 74 accepts speaking the words that are attributed to her at that AGM - being a discussion concerning the Coombs Report which had by then been circulated to owners. Mrs Aikman renders some general observations at pars 77 and 78 of exhibit 11, part of which are as follows:
At times, I have used language, that in hindsight, I should probably not have used and which I now regret having used. However, I took the view that if I did not attempt to be forceful, then the plaintiffs would simply continue to 'ride all over me', as, in my opinion, they have done with other dissenting owners … At all times, I have simply tried to respond to allegations made by the plaintiffs and the positions in which they put me and other dissenting owners.
I point out that the observations which I have taken from Mrs Aikman's statement concerning what she said at pars 47A to 47F and par 78 were only admitted as part of her evidence on the basis of being limited to her belief, understanding or state of mind at the time (as per the schedule to exhibit 12).
By her exhibit 13 Mrs Aikman corrects a matter in her initial witness statement as regards her circulation of the Coombs Report under her 2 April 2015 email. She adds four further persons as recipients whom she initially omitted to mention. She adds this:
At the time that I sent to those four persons the email dated 2 April 2015 and the Coombs Report, I was managing the apartments for all of them.
Under Mrs Aikman's third witness statement, exhibit 14, she clarifies par 56 of her primary witness statement (exhibit 11), this time by reference to Jo and Ed McAppian and their business Cape Bouvard as also being recipients of her 2 April 2015 email.
Under Mrs Aikman's fourth witness statement (exhibit 15), she takes specific issue over certain paragraphs from Ms Knowles' witness statement - which was filed on behalf of the plaintiffs (exhibit 8). Ms Knowles was also not required for cross‑examination on her statement. Nevertheless, Mrs Aikman takes issue with pars 8 through 16, par 19, par 20 and par 24 of Ms Knowles' statement.
Events described in pars 8 through 16 of Ms Knowles' witness statement (par 9 having been excised after an objection and a further component of par 12 having also been excised after the objection taken on day one of the trial was upheld) all look to be directed at supporting the plaintiffs' contentions of malice in Mrs Aikman, thereby denying to her, if malice is proved (and if needed), the defences of common law and statutory qualified privilege against exposure to defamation and which Mrs Aikman invokes in her defence.
Ms Knowles relates a telephone call she received from Mrs Aikman after she became an owner at Seashells Mandurah around December 2007 (Ms Knowles having been an owner of an apartment at Seashells Broome for some years before that).
That conversation as related by Ms Knowles contends that Mrs Aikman said a number of derogatory things about Mr King, including that he was a crook, was developing and managing resorts without care for the owners, that he was in control of AW Co and was hiving off owner profits for himself, that the staff of AW Co were totally incompetent and finally that, essentially, if Ms Knowles wanted a return on her investment, she would get an outstanding return (guaranteed) by having her premises at Seashells Mandurah managed by Mrs Aikman's rival management business.
The conversation appears to have ended abruptly due to Ms Knowles hanging up.
Mrs Aikman's version of the same 2007 conversation is offered at pars 2 and 3 of exhibit 15. Mrs Aikman accepts that, in response to what she describes as an aggressive and accusatory tone of Ms Knowles towards her, she did make allegations against the plaintiffs 'including allegations as to their lack of honesty, lack of care, self interest and incompetence' (par 3 of exhibit 15).
To the extent that there is any clash of evidence as between Ms Knowles and Mrs Aikman about what happened in this telephone conversation, I must accept Ms Knowles' version as being more accurate, given that she was not required for cross‑examination over her version. However, the more important question is whether any of that evidence of what Mrs Aikman then said bears relevantly upon the malice issue as regards much later in time publication events. My assessment is that it does not as regards the five publications complained of, as I explain in a later section of these reasons dealing with the malice challenges directed at Mrs Aikman.
At par 4 of exhibit 15 Mrs Aikman explains why she only attended one meeting during the year she was elected to the Council of Owners of the strata company, as Ms Knowles pointed out. By my assessment, nothing much relevantly arises from any of that although, from her own words, Mrs Aikman was plainly disgruntled then with the other council members as she says she thought them to be just rubber stamping everything the plaintiffs proposed and were not acting in the 'best interests of the proprietors' (par 4).
At par 5 of exhibit 15 Mrs Aikman responds to par 20 of what Ms Knowles had said in exhibit 8, where she relates statements by Mrs Aikman at the strata company's AGM concerning Messrs King and Rakich and AW Co as to them lining their own pockets at the expense of the owners and not acting in the best interests of the owners, and as to saying that Messrs King and Rakich had conflicts of interest and were corrupt.
No such statements as related by Ms Knowles are actually sued upon in these proceedings. So Ms Knowles' statement is again to be viewed from a perspective of providing more evidence to advance a malice challenge directed at Mrs Aikman as regards five of the six publications.
By exhibit 15 Mrs Aikman accepts she has said the words as Ms Knowles contends at some stage between 2008 to 2016, save for her disputing the assertion as regards having said that Messrs King and Rackich were corrupt. Mrs Aikman says at par 5:
I have always believed, and continue to believe, that the plaintiffs are lining their own pockets at the expense of owners, that they have not acted in the best interests of owners and that they have had conflicts of interest. I deny having used the word 'corrupt' as that is not a word that I associate with the plaintiffs, despite the many other adjectives that I have used about them.
The last of the responses by Mrs Aikman in par 6 addresses par 24 in Ms Knowles' statement. This concerns a directions hearing before SAT in August 2014 and a contention that Ms Knowles overheard (in the course of that SAT hearing) Mrs Aikman making more adverse comments about Messrs King and Rakich and AW Co and their (mis)management of Seashells Mandurah. As related by Ms Knowles:
Mrs Aikman's comments were littered with obscenities. I do not believe the Tribunal member could hear those comments as those comments were, whilst incessant, made quietly.
In her response, Mrs Aikman accepts that she did say some words to her husband at the August 2014 hearing which 'denigrated the plaintiffs'. As she related matters:
The words that I used were in response to words used by [Mr Rakich] who bent down towards his briefcase and threatened me with legal action. What I said was to Jim and in response to the comments made by [Mr Rakich]. Ms Knowles has not identified the words used and which she describes as obscenities such that I am not in a position to respond as to whether or not I consider them to so be.
It is true that Ms Knowles' allegation about 'obscenities' is quite non‑specific. Again the objective of the evidence is presumably to try and lay even further foundation to show Mrs Aikman's personal state of malice at this time towards the plaintiffs, which is shortly after the first of the allegedly defamatory emails complained of (28 July 2014). The generality of the reference to 'obscenities' in Ms Knowles' statement is so vague as to be unhelpful. Again, I have no doubt that Mrs Aikman's very negative views about the plaintiffs at that time were strongly held. They had intensified over time, through numerous incidents canvassed by Mr Rakich and by herself under their witness statements. But as is well established as a principle of defamation law, ill will, by itself, does not prove malice. An evaluation as to malice needs to be holistically conducted, where necessary, by reference to what has been written or said in overall context. The allegedly defamatory publications need to be looked at and considered first, before embarking upon any assessment as to whether the words published or articulated were written or spoken for a malevolent collateral purpose. I will conduct a discrete malice evaluation separately, later in these reasons, subsequent to assessing each of the six publications at issue.

Other trial evidence relied upon by the plaintiffs: Messrs Thomas and Newbold

There were two further witness statements relied upon by the plaintiffs. These were exhibits 7 and 9, being the witness statement of Mr Thomas dated 22 November 2016 and a statement of Mr Newbold dated 13 October 2016.
Mr Thomas' statement was once again provided in circumstances where he was not required for cross‑examination by Mrs Aikman. He relates his position as the COO of SHG since 2008. He was initially Operations Manager and became COO in 2011, after he returned to the organisation.
Mr Thomas relates various matters concerning Magistrates Court proceedings taken against Mrs Aikman which were seeking $4,694 in legal costs and also in relation to Mrs Aikman's alleged illicit use of a garage at strata lot 3 for cleaning and linen storage purposes around January 2013 to facilitate her rival strata management business at Seashells Mandurah.
This evidence adds very little to the evidence already provided in respect of these events, which once again are presumably raised from a perspective of seeking to show historical ill will by Mrs Aikman, rising later to a level causing Mrs Aikman to act with a malicious intent in her publications.
At par 71 of his statement, Mr Thomas (exhibit 7) relates matters he says Mrs Aikman said to him at various times, although he does not recall precisely when the events happened, as regards Seashells Scarborough or Seashells Yallingup or, indeed, Seashells Resorts generally. He also relates comments he says Mrs Aikman made concerning Messrs King and Rakich at par 71.3 through 71.5. Again, none of those alleged verbal remarks by Mrs Aikman are the subject of separate defamation proceedings brought in their own right. Presumably, again, they are related towards showing malice.
However, this evidence of Mr Thomas is ultimately unhelpful given its lack of specificity as to when and to the surrounding circumstances in which such remarks were made.
Presumably, Mr Thomas' observations found in par 73, by reference to a document in exhibit 2.212, TB pages 1085 - 1086 directed to a lot owner at Seashells Yallingup, is an attempt to paint Mrs Aikman's conduct as illustrative of her acting in her own business interests at the time - to illegitimately further her own competitive business at AW Co's expense, again from a malice perspective. Again, I will evaluate the malevolent collateral purpose challenge in a discrete malice related section.
The witness statement of Mr Newbold (exhibit 9) describes his employment as General Manager for the Seashells Mandurah group as an employee of SHG from October 2011. Mr Newbold provides greater details about the nature of cleaning materials that were stored in a Seashells Mandurah storeroom when used by Mrs Aikman. This included some toilet paper, tissues, room amenities (soap etc) and linen.
At par 12 Mr Newbold relates his observations upon so-called regular deliveries by a linen truck and his communication of these matters to Mr Rakich in or around 2012 (par 13).
Mr Newbold left SHG in late December 2015. His inconsequential evidence adds nothing more to the substantial bodies of documentary and other evidence bearing upon malice related issues as regards Mrs Aikman.

Practical consequences of Mrs Aikman's alleged malice

The forensic consequence of the plaintiffs' malice allegations against Mrs Aikman was to substantially expand the duration and scope of enquiry of this defamation trial which, in the end, ran for four full days.
For this trial, the malice allegations directed by all plaintiffs at Mrs Aikman are tied to the following expansive features of the trial, namely:
(a)the plaintiffs' reply pleading, which raises 37 (par 2.3.3, particulars A to KK) separate factual averments as to conduct, incidents or matters against Mrs Aikman as being either, alone or in aggregate, suggestive of her collateral ill motivations towards the plaintiffs;
(b)an extensive discovery process heavily probing the allegation as to Mrs Aikman's malice. This translated, at trial, into a tendering of a three‑volume lever arch TB (exhibit 2) and then a supplementary TB, with the vast majority of the documents (given all six alleged defamatory publications were otherwise admitted) adduced to either advance or diminish the plaintiffs' arguments over Mrs Aikman's alleged malevolent intent towards the plaintiffs;
(c)a full day's cross-examination of Mrs Aikman, mostly, as I assessed it, from the perspective of attempting to show her malevolent intent towards the plaintiffs. That arose in circumstances where none of the plaintiffs' witnesses, including Messrs King and Rakich, were required to be cross‑examined. Their respective witness statements were simply tendered. Mrs Aikman was the only witness to give viva voce evidence under cross‑examination at the trial; and
(d)overall, on my assessment, a defamation trial that ought not to have exceeded two hearing days at most (given all of what was otherwise agreed or was uncontroversial) occupied four trial days.
It is apparent that the Seashells Mandurah relationships in 2014 - 2015 as between Mrs Aikman and Messrs King and Rakich had become tense, strained and difficult. But that was so on both sides of the relationship. There were, as will be seen, incidents of pettiness on both sides. The resultant levels of distrust and ill will within these relationships are not sufficient by themselves to prove malice. Mrs Aikman's ill will towards the plaintiffs may be at the start of that enquiry. But it is by no means the finish.

Sources of evidence at trial: Documentary evidence

For a trial where the six defamatory publications complained of were all admitted, the level of documentary evidence in the case was extraordinary, spanning as it did across the course of the agreed three-volume TB comprising three lever arch files. There later emerged a supplementary TB of more documents.
As already noted, all volumes of the TB were accepted without controversy. The contents became exhibit 2. The TB indexes were tendered as well and became exhibits 1.1 and 1.2 respectively.
Beyond the four volumes of TB documents and the tendered witness statements there were some more ad hoc documents. These included, significantly, the Three Amigos Family Trust deed and the deed of appointment under that trust which became exhibit 16. That comprises the documentary evidence relied upon at the trial.
I should say something about the key issues at the trial and also isolate what was not in issue.

Key issues

The essential trial issues which emerged, in broad terms, were these:
(a)whether AW Co is an excluded corporation that is permitted to bring this suit in defamation. I have already resolved that issue in the affirmative.
(b)do the six publications carry any or all of the (multiple meanings) imputations that the plaintiffs contend arise from the natural and ordinary meaning of the words complained about in each publication, ie, as 'popular' or 'false' innuendo meanings arising;
(c)if any such meanings do arise, then do they carry a meaning that is to be assessed as a matter of law as being defamatory of one or more of the plaintiffs;
(d)as a further aspect of the exercise under (b) and (c) just mentioned, do the publications sufficiently identify one or more or all of the plaintiffs upon their natural and ordinary meaning, so as to render one or more of the plaintiffs as being the subject of a defamatory imputation;
(e)if a publication by itself is assessed as not identifying any plaintiff, can additional extrinsic facts (that the plaintiffs pleaded and particularised at trial) assist and complete the identification of one or more of the otherwise unnamed or unidentified plaintiffs, and has that extrinsic knowledge been proven as being held by one or more of the (usually limited) recipients of Mrs Aikman's six communications complained of;
(f)if 'yes' to (d) or (e) above, are Mrs Aikman's communications (subject to (g) below) legally shielded against exposure to defamation liability by a common law or statutory qualified privilege, favouring Mrs Aikman;
(g)if 'yes' to (f), was Mrs Aikman as an issue of fact actuated by a malicious intent or motive towards one or all of the plaintiffs on one or more of the five publication occasions that are the subject of the plaintiffs' complaints;
(h)assuming success for one or other of the plaintiffs to this point, what is the level of an appropriate award of compensatory damages for each plaintiff, particularly bearing in mind that s 34 of the Defamation Act requires there to be a rational relationship between any defamation damages award and the harm actually sustained by a plaintiff as a result of a defamatory publication. As will be seen, this is a significant consideration for the second and fifth publications towards AW Co and Mr Rakich. A mitigation of damages plea, sometimes referred to as the 'Burstein' principle, is also in play, if required, by reason of Mrs Aikman's pleaded defence (par 41): see Burstein v Times Newspapers Ltd [2001] 1 WLR 579, which was recently considered in this state by Coxon v Wilson [2016] WASCA 48.

What was not in issue at the trial

It is of assistance to formally record that the following matters were never live considerations in this defamation trial.
First, Mrs Aikman has not sought to defend any of the imputations raised against her on the basis of a plea of justification or of substantial truth. Nor has there been any attempt by her to raise 'Lucas-Box' or 'Polly Peck' defences towards her proving the truth of alternate and less serious imputations. The absence of such pleas narrows the scope of the defamation controversy.
Second, no defence of common law fair comment or of statutory honest opinion under s 31 of the Defamation Act was pressed at the trial. Whilst Mrs Aikman's pleaded defence did display such pleas, by the time of the trial it was made explicitly clear by the parties' written opening submissions, and confirmed by counsel for Mrs Aikman at the trial, that such defences were not being pressed. That is so notwithstanding that, upon examination, quite a number of Mrs Aikman's remarks seen in the words complained of may look to be capable of being classed as in the genre of a comment or an opinion expressed by her.

The plaintiffs' reply pleading: Underlying facts and circumstances concerning the defendant's alleged malice in this action

The plaintiffs' amended reply (filed 4 October 2016) ('the Reply') under par 2.3 contends that five of the six publications complained of were 'each actuated by malice' (see par 2.3.3). The third publication complained of, namely, Mrs Aikman's covering email communication of 2 April 2015 sending out the Coombs Report, is not pleaded to have been a publication actuated by her malice. However, the Coombs Report attachment, which she circulated by that email, is said to have been a republication that was actuated by Mrs Aikman's malice (see par 2.3.3).
In the Reply there are 37 paragraphs of particulars to par 2.3.3, all of which are asserted to be particulars of Mrs Aikman's malice. On analysis, they read like an unfocussed and rambling narrative, rather than properly crystallising why it is said Mrs Aikman made the five communications by acting with an improper motive or an improper intention at those times. Only the plaintiffs' written closing submissions at trial of 28 November 2016 finally clarified what ought to have been made explicit much earlier by the Reply. Paragraph 29 of those closing submissions says:
The inference can be drawn that the dominant purpose(s) for the defendant making the impugned publications was a desire to injure the plaintiffs and/or retaliation for what the defendant perceived to be bullying and harassment of her and her business.
Paragraph 30 of the written closing submissions identifies 15 different matters which are said to be 'matters of importance'. They represent, in effect, an attempted distillation of the 37 particulars of malice contained within the Reply.
Exceptionally, but under my leave in this action, the defendant then filed a rejoinder plea ('the Rejoinder') in the action. Paragraphs 2 through 38 of the Rejoinder responded on a seriatim basis to the plaintiffs' malice particulars - found under subpars A through KK of the Reply.
Within the framework of that Rejoinder by Mrs Aikman, it can be seen that the overwhelming majority of facts as are contended for by the plaintiffs' lengthy particulars of malice were actually admitted before trial as facts by the defendant. However, she nevertheless still explicitly denies that she was ever actuated by malice on any occasion against any plaintiff.
Almost all of the documents to which reference is made by the plaintiffs' malice particulars were tendered into evidence at the trial in the three‑volume TB (exhibit 2). They were not controversial documents as to their proof or admissibility. They are essentially documents that speak for themselves.
Given the malice controversy, it is necessary for me to collect the facts together and then render my assessment concerning an end challenge which is put against the defendant that she was actuated by malice. I undertake that assessment on the basis that the onus of proof to make out that serious allegation, albeit at the civil standard, is an onus which the plaintiffs must discharge by sound evidence and respecting the Briginshaw standard: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 366 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449.
I also proceed on the basis that the plaintiffs must do more than show that Mrs Aikman bore a level of ill will towards them, was biased, or even lacked a belief in the truth of what she stated. Proving such matters can allow a basis upon which the inference of an improper purpose or an improper motive might be drawn. But the end assessment is one of fact - to be undertaken on a bespoken basis in each presenting case on each occasion at issue.
I have already mentioned Mrs Aikman was cross-examined extensively for over a day at the trial, essentially, I thought, to establish that she was actuated by malice on each of the five occasions pleaded under par 2.3 of the Reply - in her predominantly seeking to harm or injure the plaintiffs, rather than by intending only to communicate to the persons that she did on a privileged occasion (assuming occasions of qualified privilege are now taken to be established).
To facilitate the orderly collection of the facts evaluated in my assessment of the malice contentions, I set out below in seriatim fashion particulars A through to KK of the plaintiffs' Reply. Underneath each particular, I will also collect and then highlight in bold the response by Mrs Aikman's Rejoinder which, as seen, on the majority of instances, admits the facts asserted. For those occasions where the facts are not admitted or Mrs Aikman adds further qualifying pleas, then that response of Mrs Aikman can also be read.
A.In or about 2003 or 2004, the defendant was employed, for a period of several months, as a property manager by one or more companies that were controlled by Mr King, and known as the Seashells group, and was directly responsible to Mr King.
ADMITTED
B.The defendant commuted daily from her residence in Mandurah to a Seashells office in Scarborough.
ADMITTED
C.Whilst employed as a property manager, the defendant took advantage of a staff discount and purchased a strata lot in Seashells Mandurah off the plan.
NOT ADMITTED
D.After a period of 3 to 4 months, the defendant resigned from her employment as a property manager and cited concerns with her health and commuting daily to Scarborough.
ADMITTED
E.In or about October 2007, the defendant gave the required 90 day notice to remove her apartment from the on-site letting pool pleaded in paragraph 2.2 of the FASOC, and commenced carrying on the business pleaded in paragraph 5.2 of the FASOC.
NOT ADMITTED
F.The defendant knew, or ought to have known, from having purchased a strata lot in Seashells Mandurah, that the on-site manager could only be removed by a resolution passed by a majority of owners of strata lots in Seashells Mandurah.
NOT ADMITTED
G.Since commencing the business pleaded in paragraph 5.2 of the FASOC, the defendant has been involved in denigrating the management of Seashells Mandurah to owners of strata lots in Seashells Mandurah, prospective purchasers of strata lots in Seashells Mandurah and real estate agents representing prospective purchasers of strata lots in Seashells Mandurah, with a view to increasing the number of strata lots the owners of which utilise the defendant's services provided as part of the business.
ADMITTED
H.In or about mid January 2008, the defendant telephoned Sue Knowles, who had in December 2007 purchased a lot in Seashells Mandurah, and engaged Ms Knowles in a conversation. During that telephone conversation, the defendant said words to the effect that:
(i)she was managing many units in the resort due to so many illegalities that were part of the ownership, development and strata management;
(ii)Paul King was a crook;
(iii)Paul King was developing and managing resorts without any care for the owners;
(iv)Paul King was in control of Accommodation West and hiving off owner profits for himself;
(v)the staff of Accommodation West were incompetent;
(vi)if Ms Knowles wanted to protect her investment, she would guarantee an outstanding return that Accommodation West could not hope to match;
(vii)everything Paul King touched was crooked; and
(viii)in response to Ms Knowles expressing disagreement with the defendant about the statements she was making, you're not Sue Knowles are you? Of course you'd be a friend of Paul King because you're both crooks together.
NOT ADMITTED
I.Prior to the 2009 Annual General Meeting of the Strata Company for Seashells Mandurah ('AGM'), the defendant wrote to the owners of strata lots in Seashells Mandurah regarding the receivership of Comet Bay and asserted that SHG and Mr King were involved in the demise of Comet Bay.
NOT ADMITTED
J.At the 2009 AGM, the defendant questioned the ownership and lease arrangements of Lot 17, the caretaker's apartment, and the Strata Management Agreement and whether it was open for consideration by other entities.
ADMITTED
K.At the 2009 AGM, the defendant questioned whether strata funds had been used to pay for legal fees incurred by SHG, as a result of SHG's lawyers writing to her regarding the unauthorised use of the Seashells name when advertising her apartment.
ADMITTED
L.In or about 2010, the defendant wrote to all owners of strata lots in Seashells Mandurah who were part of the on-site letting pool pleaded in paragraph 2.2 of the FASOC and offered her services to manage their apartments, in lieu of SHG. The defendant offered owners the ability to enjoy the use of their own apartment for as long as they wanted if their property was managed by the defendant notwithstanding that the City of Mandurah Town Planning Scheme No. 3 restricted owner use to a maximum of 3 months per calendar year.
NOT ADMITTED
M.Since commencing the business pleaded in paragraph 5.2 of the FASOC, the defendant has, on at least two separate occasions between 2007 and 2013, sent letters to owners of strata lots in Seashells Mandurah advertising her business and offering to manage their apartment.
NOT ADMITTED
N.In or about 2008, the defendant registered the business name 'Shells by the Sea' and carried on the business pleaded in paragraph 5.2 of the FASOC under that name.
ADMITTED
O.In or about 2010, lawyers engaged by SHG sent a letter of demand to the defendant alleging infringement by the defendant of SHG's intellectual property rights. On or about 2 June 2010, following further correspondence between SHG's lawyers and the defendant, a settlement was reached, without Court proceedings being commenced. Pursuant to settlement the defendant gave a [sic] undertaking to immediately cease and desist and irrevocably and unconditionally indemnified for any and all loss, including legal fees.
ADMITTED
P.On or about 18 May 2011, the defendant sent a letter to owners in Seashells Mandurah advertising the services of the business pleaded in paragraph 5.2 of the FASOC, then carried on under the name Shells by the Sea, which letter made reference to the growth of the defendant's business and that the defendant was actively looking for more apartments to manage. The letter also referred to the defendant offering the best personal service and an honest and transparent accounting process.
ADMITTED
Q.In or about June 2011, the defendant again used Seashells imagery and branding in a brochure and on a website. Lawyers engaged by SHG again wrote to the defendant regarding he conduct. In or about July 2011, prior to Court proceedings being commenced, the defendant agreed to, and did, change the name of the business she was carrying on to 'Waters Edge Luxury'.
NOT ADMITTED
R.On 17 June 2011, the defendant sent an email to Adam Levitan of Summers Legal, the solicitors for SHG, and Gareth Thomas of SHG, which was copied to her owners, in which the defendant stated that 'some of my owners have suggested that we take group action against Seashells Hospitality Group'.
ADMITTED
S.On or about 22 June 2011, the defendant sent an email to Adam Levitan of Summers Legal, the solicitors for SHG, in which the defendant made an effort to sell strata lot 23 in Seashells Mandurah and the business pleaded in para 5.2 of the FASOC to SHG for a price of $425,000. Included as a term of that offer was the ability for SHG to elect to exclude the defendant from managing property in the future except for the defendant's own personal properties outside of the Seashells Mandurah building.
ADMITTED
T.In or about 2012, the defendant commenced using a storage unit located within Seashells Mandurah for storing linen, keys and cleaning equipment for use by her in the business pleaded in paragraph 5.2 of the FASOC. On or about 30 April 2012, a formal complaint was made to the Council of Owners of Seashells Mandurah by Lynn Orohoe, who was at that time a member of the Council of Owners.
NOT ADMITTED
U.In or about January 2013, the defendant commenced managing a residential zoned villa in Seashells Mandurah which included a garage. The defendant used the garage for the purposes of the business pleaded in paragraph 5.2 of the FASOC. Repeated requests were made by the Strata Manager to the defendant, at the direction of the Council of Owners of Seashells Mandurah, and to the proprietor of the villa, to cease all operations from the garage, which requests were not complied with. In or about July 2013, the Strata Company for Seashells Mandurah commenced proceedings against the defendant in the SAT, being matter number SAT 984/2013.
ADMITTED
V.In or about June 2013, the defendant uploaded to the website ' images the copyright in which was owned by a photographer who had been engaged by SHG to provide images for use by SHG. In addition, the website referred to 'Seashells' in bold text without identifying any address. Lawyers engaged by SHG wrote to the defendant alleging passing off, breach of copyright and breach of the undertaking signed by the defendant in June 2010. SHG subsequently commenced proceedings Seashells Hospitality Group Pty Ltd v Aikman PER/MINOR/12130/2013 in the Magistrates Court of Western Australia. On 4 March 2014, the matter proceeded to trial and judgment was given in SHG's favour. The defendant was ordered to, and did pay, SHG damages of $4,827.01.
NOT ADMITTED
W.On 2 July 2013, the defendant sent an email to Taylor Woodworth of Summers Legal, the solicitors for SHG, in relation to PER/MINOR/12130/2013 in which the defendant wrote:
(i)'Please advise your client that if they try and take me to the Supreme Court over this I will be forced to take my own action which will involve a class action';
(ii)'Your client should reconsider these bullying tactics and perhaps cast their minds back to the last Strata meeting';
(iii)'There are many people angry and very disturbed over their bullying tactics';
(iv)'I will not be bullied and I have already had people offer to help me fund a class action and work with me on this';
(v)'The ACCC have been speaking with owners of late. There is another owner going to SAT;
(vi)'I am entitled to write to the owners about these bullying tactics and further bullying will only add to the current problems';
(vii)'Can Seashells afford further bad press?';
(viii)'If your client does not want me leasing apartments in the complex well I can understand that - perhaps it's time to have a meeting'; and
(ix)'If I do not get a reply within 24 hours to dismiss your intended actions I will proceed with my own and then Seashells will be dealing with more than one angry owner'.
ADMITTED
X.On 25 July 2013, the defendant sent an email to Taylor Woodworth of Summers Legal, the solicitors for SHG, in relation to PER/MINOR/12130/2013, in which the defendant requested that Summers Legal 'advise today if this account is going to be withdrawn - if it is not I will go into print tomorrow and will take my own actions to sue Seashells for loss of business thru their varied actions against my business'.
ADMITTED
Y.In or about August 2013, in SAT matter 984/2013, the defendant wrote to the SAT and submitted that 'there is a trend to leave the onsite manager and instead just having my own apartment to manage I now have many apartments in the complex to manage. This did not start out as a business enterprise but as an assistance to other fellow owners in the resort who wanted a way out. Thru the dissatisfaction of owners and the incompetence any bullying of this management group I now have a business that requires an office, fulltime staff and a lot of dedication from myself'.
ADMITTED
Z.On 13 September 2013, by a letter from Baldivis Law and Mediation, solicitors for the defendant, to Gareth Thomas of SHG, the defendant made an offer to sell strata lot 23 in Seashells Mandurah and the business pleaded in paragraph 5.2 of the FASOC to SHG or its nominee for a price of $330,000.00 plus GST. At that time, the market value of strata lot 23 was in the order of $180,000. The terms of the offer included a term that the defendant would forthwith close down the business completely, enter into a restraint of trade to not compete with SHG and vacate the garage at Seashells Mandurah which was the subject of SAT matter 984/2013.
NOT ADMITTED
AA.In September 2013, the defendant complained to the Australian Competition and Consumer Commission ('ACCC') and the Australian Security and Investments Commission ('ASIC') about Accommodation West and SHG.
ADMITTED
BB.On 18 September 2013, in Magistrates Court matter PER/MINOR/12130/2013, the defendant sent an email to the Perth registry of the Magistrates Court and submitted that:
(i)'this is just a matter of "sour grapes" against this owner and myself as I have 18 other apartments which I privately manage in the building';
(ii)'at the moment I am defending other matters for other owns in the State Administrative Tribunal - which is ongoing. There has been some further two complaints lodged against this Company Seashells Hospitality and their sister Company Accommodation West. One with ASIC and the other with the ACCC';
(iii)'we are currently awaiting advise [sic] from both these Government Bodies and will probably be going to trial in the ensuing months as a form of class action by a group of owners of this Strata Company'; and
(iv)'the owner and I want this matter to be dismissed totally'.
ADMITTED
CC.On 18 September 2013, in SAT matter 984/2013, the defendant wrote to the SAT and submitted that:
(i)mediation should be deferred until after the ACCC and ASIC had contacted Accommodation West and SHG and provided the defendant with their findings; and
(ii)Accommodation West 'has had several problems in their other resorts as well with their Strata Management to the extent that Scarborough Resort was taken to the Supreme Court and then removed.'
ADMITTED
DD.On or about 10 September 2013, in SAT matter 984/2013, the defendant sent a facsimile to the SAT and submitted that:
(i)'Mr Rakich has been presenting himself at SAT as a professional and as an expert in his field of Strata Management. Myself and other owners have been searching but have not found any proof of any such qualifications and I now suggest that Mr Rakich MAY not be qualified to hold this position. He has no accreditation and we have been unable to find any other qualifications';
(ii)'BRIAN RAKICH - is an owner and also the Strata Manager of Accommodation West who lodged this SAT application. He is also an employee of Accommodation West and a business partner of PAUL KING who is the Managing Director of the Seashells Hospitality Group (The onsite Manager). PAUL KING is also a business partner with Brian Rakich in PROJECT MARKETING AUSTRALASIA. They are both directors. This is a conflict of interest as they both have vested financial interest in the productivity of the Onsite Manager business'.
(iii)'Conclusion - with this knowledge at hand it would seem quite clear there is a huge conflict of interest happening here between the onsite manager and the Strata Company and that would appear to be the reason that the Council of Owners did not call an EGM with invitations to all owners to agree to the action put forward and the cost involved'.
(iv)'It has also come to my attention that BRIAN RAKICH and ACCOMMODATION WEST have just this month been terminated from the Strata Management role at Seashells Yallingup as they were many years ago by the Owners of the Seashells Scarborough. I have not seen any legal documents on this but I have been told by several it was because of mismanagement and Brian Rakich's general attitude toward the owners'.
(v)'This application is all about bullying and collusion'.
ADMITTED
EE.In or about November 2013, during mediation in SAT matter 984/2013, the defendant stated to Mr King that, if he purchased from her the business pleaded in paragraph 5.2 of the FASOC and strata lot 23 in Seashells Mandurah, she would retire. Mr King told the defendant that he would only consider purchasing the business and strata lot 23 on the basis of a valuation, which proposal was rejected by the defendant.
NOT ADMITTED
FF.At the 2013 AGM, the defendant requested that all telephone internet and Foxtel provided to the apartments which were managed by SHG, should be made available to all apartments in Seashells Mandurah. At the AGM, it was noted that the building was smart wired which facility can be accessed by all owners and all residential owners make their own arrangements with telephone providers. The telephone system was installed by the on-site manager and when owners leave the on-site rental pool, the on-site manager disconnects the rented phones. The owner is then required to re-connect the phone with their own supplier. The AGM also referred the Foxtel package to the Council of Owners for further consideration and that consideration be given to providing WiFi provided that it did not exceed a cost of $10,000. Following the AGM, the Council of Owners determined that the Strata Company for Seashells Mandurah should not consider installing Foxtel for all owners; and as quotes for WiFi exceeded the cost of $10,000.00, the Council of Owners decided to not proceed further.
ADMITTED
GG.The Coombs Report expressly stated that it was not to be distributed without prior written consent of Paramount Wealth Accountants.
ADMITTED
HH.At the 2015 AGM, the defendant again requested that Mr King purchase from her the business pleaded in paragraph 5.2 of the FASOC and strata lot 23 in Seashells Mandurah.
ADMITTED
II.On or about 29 June 2015, the defendant sent an email to owners in an on-site letting pool for Seashells Yallingup advertising the business pleaded in paragraph 5.2 of the FASOC, which email made reference to the defendant currently managing 18 apartments in Seashells Mandurah.
ADMITTED
JJ.In or about May 2015, the defendant, at a clothing boutique in Mandurah engaged in conversation with a Rachel McLachlan, who said to the defendant that she was looking for an investment property in Mandurah. The defendant said to Ms McLachlan words to the effect that:
(i)the defendant was the leading holiday management company in Mandurah;
(ii)the defendant currently managed 18 apartments in Seashells Mandurah but that by Christmas she would have the lot;
(iii)the Seashells Mandurah strata was going broke;
(iv)there were numerous complaints from owners;
(v)it was poorly managed and run;
(vi)Paul King and his crew were going bankrupt;
(vii)Paul King had been bankrupt before; and
(viii)that they have the worst reputation in Mandurah, ask anybody.
NOT ADMITTED
KK.It is to be inferred from paragraphs 14(c), 18(c), 22(c), 26(c) and 30(c) of the Defence, and the particulars thereof, that the defendant believed that all persons to whom the publications pleaded in the FASOC were made had such fixed views about the plaintiffs, or each of them, that the publications would not change those views.
ADMITTED

Mrs Aikman's cross-examination: Privilege and malice related issues

Mrs Aikman was intensively and extensively cross-examined at the trial upon her witness statements. As I have already said, this was, on my assessment, largely an attempt to show that Mrs Aikman was actuated by malice as regards five of the six publications complained of and thereby defeating any defence of qualified privilege which would have otherwise protected her from a defamation exposure.
The plaintiffs bear the onus of proving that Mrs Aikman was actuated by malice on the civil standard at the times she made the five publications.
At the end of the trial Mrs Aikman's evidence and her overall credibility was strongly criticised by the plaintiffs' counsel in his closing submissions. I do not repeat all of those many criticisms.
It was generally put on behalf of the plaintiffs that Mrs Aikman was a highly unsatisfactory witness whose evidence should not be accepted in any respect. The criticisms included that Mrs Aikman gave long, rambling and unresponsive answers to questions put to her, that she gave answers that gratuitously volunteered non-responsive extra information, and that her answers were often inconsistent. This was all said to be designed to advance her position (at least to her mind).
It was said that Mrs Aikman in the past had made baseless threats to report the plaintiffs to statutory authorities including to ASIC or to the Australian Competition and Consumer Commission. It was submitted that Mrs Aikman's responses to questions were, generally speaking, shaky and that she had exhibited overt hostility against the plaintiffs, thereby betraying a deep seated resentment against them which had been nurtured over the years.
The day-long cross-examination of Mrs Aikman traversed over a history of numerous past incidents, transactions or clashes as between her and the plaintiffs or plaintiff-related entities (such as SHG). Much of that happened years prior to the five publications in issue as regards evaluating malice allegations.
A traversal of numerous incidents and the multiple (mostly admitted) documents surrounding them, being generally documents either emanating from Mrs Aikman, or sent to her by the plaintiffs or by plaintiff‑related entities and their agents, or by lawyers acting on the part of the plaintiffs at the time. They were canvassed at considerable length during the cross‑examination of Mrs Aikman. Materials relating to Magistrates Court proceedings taken against Mrs Aikman over costs or proceedings before SAT were particularly trawled over. The many documents and incidents traversed with Mrs Aikman in cross‑examination included all the incidents which are the subject of the particulars of malice found in the plaintiffs' Reply to which I have referred - the great majority of which were admitted under Mrs Aikman's Rejoinder, as has been seen.
The scale of this traversal of ancient history across three lever arch volumes of TB documentation (all submitted into evidence uncontroversially), was overwhelming in magnitude. It extended chronologically back to shortly after the commencement of Mrs Aikman's purchase of her unit at Seashells Mandurah as an investment in 2003. As discussed earlier, this apartment was not her primary residence. Mrs Aikman resided somewhere else in the general Mandurah locality. But she would, from time to time, stay at her Seashells Mandurah unit when it was not otherwise rented out to third party short stay visitors.
I do not recount all past incidents canvassed in the cross‑examination process of Mrs Aikman. They included significantly:
(a)Mrs Aikman's commencement of a rival management business at Seashells Mandurah (then later at other locations) under the trading name of 'Shells by the Sea' - that trading name being swiftly objected to by the plaintiffs or the Seashells Mandurah operators, in effect, on the basis that the name chosen by Mrs Aikman was too close to that of 'Seashells', thereby carrying consequences as to Mrs Aikman's commission of the tort of passing off or of statutory misleading and deceptive conduct by using that misleading trading name for her business;
(b)Mrs Aikman's alleged misuse of Seashells' intellectual property in her business's advertising brochures used in promoting her short stay accommodation management business, including the unauthorised use of copyright protected photographs sent to her by another owner to use, but which were actually the licensed intellectual property of Seashells Mandurah (as regards a photograph of the Seashells Mandurah building, or its surrounds and its facilities). There was also a complaint made over Mrs Aikman's use of the name 'Seashells Mandurah' in her promotional brochure, used to identify the geographical location of the available short stay premises in her advertising material to direct potential customers to that location;
(c)a use by Mrs Aikman's rival management business of some garage premises at Seashells Mandurah (under the consent of the lot owner whose garage and property was then being managed by Mrs Aikman's business) for storing cleaning materials - in circumstances where it was said that her use of the garage to store cleaning materials was a breach either of local by-laws or of strata by-laws, resulting in threatened SAT action over that; and
(d)alleged violations of SAT's procedures or SAT's confidentiality orders through Mrs Aikman's communications to third persons by telling them what had happened at SAT in relation to the applications involving either the plaintiffs or the owners of Seashells Mandurah - to third persons who at the time shared Mrs Aikman's position of some dissatisfaction over the overall management of the Seashells Mandurah resort.
Given the serious character and implications for this action of the assertions of malicious intent put against Mrs Aikman raised by the plaintiffs, I have given especially close attention to her cross-examination, both at the time and subsequently by reviewing the transcript of her evidence. But having seen and heard Mrs Aikman cross‑examined at great length, I have not at the end been satisfied as to a position of concluding on the balance of probabilities that she was actuated by a malevolent intent on any of the five occasions at issue (for all publications except the third - where malice is not alleged). I have approached malice in the sense of evaluating whether her dominant motive on each of the five occasions was either advancing her own rival business interests, or of wilfully attempting to inflict retaliatory harm upon one or other of the plaintiffs by sending any of the five communications in respect of which this charge of a dominant improper motive is alleged against her.
I have approached and have reassessed all of Mrs Aikman's evidence at the trial with caution. I certainly do not accept everything she has said at trial unreservedly. But, at the end, my assessment of Mrs Aikman's evidence as a witness, across the course of what was for her an obviously gruelling process, was that it was overall satisfactory enough upon the core issue of her intentions as regards the five relevant publications.
Whilst Mrs Aikman was not a perfect witness, my general assessment is that she did not provide knowingly false responses to questions put to her in cross‑examination. By my assessment, she attempted, across a long period of questioning where she obviously became tired and found herself provoked on occasions by the nature of the questions asked, to answer questions to the best of her ability.
I formed an impression from her evidence that events over a number of years prior to the publications complained about had accumulated and led to her holding multiple grievances against the Seashells Mandurah management. She may have been wrong about some things but I was quite satisfied that she was genuine about all these matters. Moreover, on my assessment, she was on the receiving end over time of some unnecessary pettiness from the conduct of Mr Rakich towards her and her supporters.
Overall, I consider that Mrs Aikman had not become so bitter or twisted that she had lost all reasonable perspective, or simply loathed the plaintiffs on some irrational or malevolent basis.
It may be accepted that, in general, Mrs Aikman thought very poorly of Messrs King and Rakich especially by 2014 to 2015. That was based on an unhappy catalogue of prior commercial experiences assembled over some years.
It is neither feasible nor appropriate to conduct mini-trials upon the ultimate merits or demerits of the too many past disputes or clashes which erupted over time involving Mrs Aikman and Seashells Mandurah's management or its related corporations. It is enough for me to generally assess, as I look across the three lever arch files of documents assembled around the Seashells Mandurah events, that in some of these disputes Mrs Aikman was not the only strata lot owner then dissatisfied with Seashells Mandurah's management. There was a minority cohort of strata lot owners who held a not unreasonable perspective that was then aligned with Mrs Aikman's dissatisfactions over policies, practices and positions taken by the plaintiffs as regards the running and the management of Seashells Mandurah for its then over 100 different strata lot owners.
Viewing a number of these incidents by reference to the contemporaneous documentation which was generated at the time (and through which I was helpfully taken by defence counsel, Mr Potter, in opening), my assessment is that Mrs Aikman was not the 'villain' that she was portrayed to be by the plaintiffs. To the contrary, my overall impression, admittedly at some distance now from these past events, is that at times the tone of the communications Mrs Aikman received, either by Mr Rakich, or plaintiff related entities and agents, or from their appointed legal representatives was heavy‑handed and came uncomfortably close to being overbearing in nature, seeking, in effect, to crush an opposing minority of irritating dissenters. This may be seen in several communications that passed from Mr Rakich, preceding the fifth publication of Mrs Aikman to Mr Beyer. This was Mr Rakich's rather nasty communication - in respect of which Mrs Aikman made, in effect, by reply what I assess as her sarcastic observation concerning her not getting a copy of what Mr Rakich had sent to all other owners.
By my assessment, what Mr Rakich wrote earlier about strata lot owners, such as Mrs Orohoe and Mr Beyer, who were then aligned in their positions of dissatisfaction with Mrs Aikman, was unacceptably insulting in tone. It is no real surprise then that Mrs Aikman reacted to it as she did. But she copied in Mr Rakich to her response, putting, in effect, her reply 'cards on the table' to him. I have already mentioned that a subcomponent of the law applicable to qualified privilege is the situation of a proportionate reply by a person to an attack against them. Other exchanges to the same ilk could easily be collected. However, that collection exercise is disproportionate to the overall rather petty and trifling nature of a number of these defamation claims by the plaintiffs and is unwarranted.
I have no doubt Mrs Aikman held Messrs King and Rakich in poor regard at the time she made her five communications complained about as being malicious. But that alone does not establish malice in terms of showing that they were sent by her for some improper collateral purpose such as advancing her own rival business interests or for the dominant purpose of spitefully 'tipping a bucket' on them to damage their reputations.
When suggestions of her malice were put directly to Mrs Aikman during cross‑examination, she always rejected that proposition. I would accept her denial evidence in that respect. My assessment is that when Mrs Aikman spoke or wrote as she did in the five communications at issue, she was speaking or writing spontaneously and for a proper purpose of communicating her genuinely held and not unreasonable views to the usually very limited number of recipients, or the owners who had assembled in person at the strata company's AGM, where she was, of course, perfectly entitled to express her views. I find no underlying improper or sinister purpose in any of her five communications at issue on my assessment. As I have indicated, some of the communications received from the plaintiffs or their legal advisers or related entities put to Mrs Aikman had been very strongly worded and rendered strong criticisms about her.
It is also clear from the trial documents that Seashells Mandurah's management over time formed an adverse view of Mrs Aikman and of those dissentients who supported her in her rival management business. My assessment is that some persons in Mr Rakich's sphere of influence at Seashells Mandurah unduly went out of their way to make things as difficult for Mrs Aikman as possible. To that end, see particularly what I assess as the high levels of pettiness exhibited over Mrs Aikman storing some cleaning materials in a garage at Seashells Mandurah. By my assessment, this provides considerable insights into the combative approach Mr Rakich adopted against her over time.
Overall, I do not assess the position concerning Mrs Aikman over time to establish a picture of a spiteful or bitter woman determined to inflict damage to the plaintiffs' reputations at convenient opportunities as they arose. Rather, Mrs Aikman, by my assessment, presented as a strong-minded woman who, when challenged, would stand up for herself - making her even more of an irritant to Mr Rakich who, in the end, sought to crush her as an individual by the present oppressively collected (and expensive to fight) defamation charges.
Mrs Aikman was not a perfect or faultless participant in her interactions over the years with Seashells Mandurah's management. But that is rarely seen in life. The fact a determined woman was prepared to stand up for herself in the face of provocations directed at her over many years looks to have irked Mr Rakich and some of his surrounding management team at Seashells Mandurah. This underlies, in my view, a number of the communications which passed between the parties over the years. There is little to be proud of from the plaintiffs' perspective over such past petty incidents. But I certainly do not find or infer malice as against Mrs Aikman in respect of the five publications now canvassed.

Conclusions

Irrespective of the ultimate rights and wrongs over a clash of perspectives concerning conflicts of interest and management related issues at Seashells Mandurah, Mrs Aikman was legitimately aggrieved, as were others, about the management of the strata company by AW Co through its employee, Mr Rakich. She and those aligned with her were entitled to freely speak about and discuss their concerns and, indeed, to circulate the Coombs Report which gave at least some level of provisional support for those concerns. The malice challenge against Mrs Aikman in respect of her circulation (republication) of the Coombs Report on 2 April 2015 fails.
Consequently, all the plaintiffs' claims against Mrs Aikman fail. Their action is dismissed with costs following that event in Mrs Aikman's favour.
I will hear from the parties as to further orders, including as to Mrs Aikman's costs.

SCHEDULE A

SCHEDULE B

From: Susan Aikman [mailto:[email protected]]
Sent: Friday, 17 October 2014 6:16 PM

To: Jules Di Prinzio

Cc: Leanne Lazarus

Subject: FW: Letters to Owners & 2014 AGM Minutes

Importance: High
Minutes attached Jules

From: Susan Aikman [mailto:[email protected]]
Sent: Friday, 17 October 2014 9:26AM

To: 'jules@,ealestatedpg.com'

Cc: 'Leanne lazarus'

Subject: FW: Letters to Owners & 2014 AGM Minutes

Hi Jules

These are the last minutes.

Please note – they are not great to show a perspective investor

I spent most of last year in the State Administrative Tribunal with an owner of mine fighting certain

issues.

At the moment there are also several other owners involved in a SAT matter and the SAT awarded the owner's rights to have a forensic accountant go thru Accom Wests Strata financials for Mandurah

Accom West have been sacked as Strata Managers for Seashells Scarborough years ago and recently

Seashells in Yallingup. I believe there are now issues with Seashells Yallingup onsite management.

Seashells Mandurah have refused to give any copies of the Strata accounts which we needed and after twelve months at SAT the SAT people overruled Brian Rakich and Paul King pleas.

It will be a few weeks before we get the outcome from the Forensic accountant.

I realise you have been an associate with Paul King and he would have a different story.

However, Leanne Lazarus was at the last meeting and would be happy to discuss any of these issues with you I am sure.

Regards

Susan

From: Brian Rakich [rnailto:[email protected]]
Sent: Thursday, 31July 2014 2:42 PM

Subject: Re: Letters to Owners & 2014 AGM Minutes

SCHEDULE C

SCHEDULE D

SCHEDULE E

SCHEDULE F1

SCHEDULE F2

SCHEDULE F3