Ollis v Jenman
[2008] NSWSC 67
•15 February 2008
CITATION: Ollis v Jenman & Anor [2008] NSWSC 67 HEARING DATE(S): 3, 4 5 & 11 September 2007, 11 & 13 December 2007
JUDGMENT DATE :
15 February 2008JUDGMENT OF: Smart AJ DECISION: Verdict for plaintiff for $20,000 CATCHWORDS: Defamation - Justification of some imputations - Contextual imputations - plaintiff has poor reputation - additional smears going beyond financial dishonesty not justified - no case for aggravated damages - limited publication on website - emphasis placed on publication in States and Territories beyond New South Wales as well as in New South Wales LEGISLATION CITED: Defamation Act 1974 CATEGORY: Principal judgment CASES CITED: Carson v John Fairfax & XSons Ltd (1992-1993) 178 CLR 44
Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386
Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36
TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 683
Waterhouse v Hickie [1995] Aust Torts Reports 62, 493-4
Westpac v Ollis & Ors 2007 NSWSC 956PARTIES: Victor Warren Ollis v Neil Alfred Jenman and The Neil Jenman Group Pty Limited FILE NUMBER(S): SC 20391/06 COUNSEL: (P) C J Dibb
(D) K P Smark SC & S T ChrysanthouSOLICITORS: (P) -
(D) Champion Legal
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST
SMART AJ
Friday, 15 February 2008
20391/06:
Pty Limited
JUDGMENT
1. Victor Warren Ollis sues Neil Alfred Jenman and The Neil Jenman Group Pty Limited for damages for defamation arising out of an item published by the defendants on a web site on the Internet in June 2004.
2. At the trial pursuant to s 7A of the Defamation Act 1974 the jury found that the matter complained of conveyed imputations to the following effect:
(a) The plaintiff has served three prison sentences for property and company related crimes.
(b) The plaintiff is likely to rip off everyone he comes in contact with.
(c) The plaintiff has habitually failed to pass on rent payments to landlords of the properties he manages.
(d) The plaintiff forces some of his tenants to live in atrocious conditions.
(e) The plaintiff often does not pay tradespeople for the work they do for him.
(f) The plaintiff is likely to defraud investors and business associates of their savings,
(g) The plaintiff arranges for criminals to visit his critics at their homes to intimidate them.
(h) The plaintiff took $7900 from a woman by fraud.
(i) The plaintiff kept a $7900 deposit when he should have returned it.
(j) The plaintiff is a crook.
3. By their Further Amended Defence the defendants, as to seven of the ten imputations as to publication in New South Wales, have pleaded that they were substantially true and related to a matter of public interest. Those imputations not justified were (d), (g) and (h). Comparable defences in respect of publications outside New South Wales were pleaded. At the hearing counsel for the defendants accepted that no evidence had been led in justification of imputations (d), (e), (g) and (h). It was, however contended that imputations (a) and (j) had been proven to be true and that in these circumstances imputation (h) occasioned no damage (or no further damage) to the plaintiff.
4. In respect of publication in New South Wales the defendants relied on the defence of contextual truth under s 16 of the Defamation Act contending that by reason of the substantial truth of the justified imputations, and each of them, none of the imputations found to have been borne by the matter complained of and in respect of which a defence is not otherwise available, further injures the reputation of the plaintiff.
5. The defendants did not press the defence of qualified privilege in any jurisdiction including at common law and pursuant to s 22 of the Defamation Act 1974 (NSW).
Justification of Imputations
6. Imputation (a) – The plaintiff has served three prison sentences for property and company related crimes.
7. Section 55(2) of the Defamation Act relevantly provides:
- "… Where there is a question of the truth of an imputation concerning any person, and the commission by that person of a criminal offence is relevant to that question, proof of the conviction by a court of that person for the offence is
- (a) if the conviction is by a court of an Australian State … conclusive evidence that he committed the offence."
8. On 17 August 1979 the plaintiff was sentenced by the Sydney District Court for conspiring to cheat and defraud to 4½ years hard labour from that date. On a further conspiracy charge he was sentenced to 1½ years hard labour to be served concurrently. A non-parole period of 15 months was set.
9. On 16 April 1985 the Southport District Court convicted the plaintiff of 23 charges of misappropriation of property in 1982, 19 charges of inducing delivery by a wilful false promise in 1982 and one charge of attempt to induce delivery by wilful false promise in 1982. The plaintiff received sentences totalling 12 years and served 7½ years in prison. His appeal against conviction was dismissed by the Supreme Court in Brisbane.
10. On 20 September 1993 the Brisbane Magistrate's Court convicted the plaintiff of three charges of managing companies within 5 years of conviction for serious fraud without the leave of the Court. In respect of these offences one penalty was imposed, namely, imprisonment for 6 months. His appeal against conviction and sentence was dismissed by the District Court.
11. The plaintiff accepted that the defendants had proved the truth of imputation (a) but pointed out that the offences occurred and were dealt with a long time ago. It was in the public interest to publish this imputation if the plaintiff was involved in subsequent and recent or relatively recent dishonest financial conduct or misconduct. He was so involved.
Imputations (b) and (j)
12. These may be taken together.
13. Mr Ollis' prior convictions established that at least in 1979 and 1982 Mr Ollis was a crook. The question arises whether he was a crook as at the date of publication, 25 June 2004?
14. The defendants relied on the evidence relating to the Country NSW Scheme and that relating to the Westpac funds.
15. The Country NSW Scheme involved Mr Ollis trading under the name Country House and Land Sales. An advertisement in an eye-catching format and alluring terms was inserted in the Daily Telegraph.
" INVESTORS
10% BARGAINS
Decent
Cash Flow8% to 10% Block of units
return in major 2x2 $120,000
country towns 4x2 $240,000
only 400kms 6x2 $350,000
from Sydney 7x2 $440,000OVER 60 HOUSE $50,000 to $75,000
RETURNS 8% to 10%
ASSURED OF 25 YEAR RENTALYou'll find our investment coach tour are a must for the
Investor. Our tour of available properties runs every
two weeks. You will have access to special packages
along with our long term rental agreement which
includes all repairs paid by our Company, you will have
no repairs to worry about.For an information kit and talk to ourOur next coach leaves Saturday the 1st February and
Returns Sunday the 2nd February. There is no charge
for the tour, motels or main meals.
Friendly staffCall Now or all weekend!
Country House and Land Sales
02 4323 1850Mob: 0415 527 063, 0402 226 685 "
This advertisement appeared in the Daily Telegraph on Tuesday, January 28, 2003 and is an example.
16. Potential investors telephoned Country House and Land Sales. Often the merits of the Scheme were further explained and commended and they were encouraged to book on the forthcoming overnight coach tour which would visit five or more country towns, mainly in the west and south west of the State. On these trips Mr Ollis promoted the proposed investments orally and by delivering written promotional material. Promotional material was also handed to people who did not go on the coach tours. The promotional material was to the general effect of that set out in the newspaper advertisement mentioned earlier.
17. In general, Mr Ollis promised to sell properties in selected country towns to investors on the basis that such properties were likely to appreciate in value and did so on the basis that he would lease the properties back from the investors at an attractive rental (equivalent to 8 per cent to 10 per cent of the purchase price) for a lengthy period (5 years to 10 years). Mr Ollis was to ensure that the properties were kept in good repair and to pay for all repairs.
18. Frequently Mr Ollis purchased the properties which he on-sold to investors for appreciably less than he sold those properties to them and Mr Ollis' purchases were completed either shortly before or on the day on which completion of the on-sale took place.
19. These country coach tours extended from at least early February 2003 to early October 2003 about every fortnight, with possibly some gaps. There were some investors who preferred not to go on these coach tours.
20. I turn now to some individual examples of the Scheme.
21. Mr Parker and his fiancée (now his wife) saw Mr Ollis' advertisement very early in 2003. They booked into one of his bus tours which took place in February 2003. After they contacted Mr Ollis, Mr Parker and his wife received some promotional material through the mail and further promotional material on the bus trip,
22. They left Parramatta about 7am. They travelled south for some distance and then proceeded inland. They came back through Dubbo and Orange. Mr Ollis spoke with them a good deal about investing and emphasised that country property was a great investment. On the bus tour he explained that he would on-sell the properties to them and lease them back for a period of ten to twenty years. Mr Parker said they regarded the lease back as the part of the scheme that made the deal worthwhile. The rent payable was equivalent to 8 to 10 per cent of the purchase price of the property or properties purchased.
23. Mr Parker and his fiancée purchased Units 1-5, 21 Ebelina Crescent, Parkes for $525,000. Mr Ollis completed the purchase of the property from Mr and Mrs Woodward for $460,000 on the same day as he completed the sale of the property to Mr Parker and his fiancée.
24. On completion of the purchase Mr Ollis leased the five units from Mr Parker and his fiancée for 10 years from 31 May 2003 at the yearly rent of $42,000, payable four weeks in advance on the first day of every month. There was a formula based on the CPI Index for calculating rental increases.
25. It was not long before Mr Ollis fell into arrears wit his rental payments. Mr Parker said that in April, May and June 2004 he and his wife were on the telephone almost every week asking where the rent was. Those at Country House and Land Sales kept stating it was in the mail. Various excuses for the delays were given. Many of the payments were late. As at 30 June 2004 $7000 was outstanding.
26. Mr and Mrs Parker served a Notice of Termination of the lease on Mr Ollis with the service date being 24 November 2004. On 13 December 2004 Mr and Mrs Parker filed an application with the Consumer, Trader and Tenancy Tribunal seeking an order terminating the tenancy agreement and an order that the tenant pay $7105 for rent arrears for May 2004 and June 2004.
27. On 28 February 2005 the Tribunal gave them judgment for about $7000. Mr Ollis offered to pay $500 per month but the Tribunal held that that was insufficient and he was ordered to pay $1000 per month. By the end of 2005 the full amount was paid.
28. Mr Parker said that during 2004 he became aware of Mr Ollis reputation as a shady character and that you should not deal with him.
29. In cross-examination Mr Parker agreed that he purchased another property from Mr Ollis namely, vacant land at 7-9 Park Street, Wellington. That was not leased to Mr Ollis. Ultimately this point did not lead anywhere.
30. Mr Parker agreed that as from the end of June 2004 he resumed control of the property at Ebelina Crescent, Parkes and dealt direct with the real estate agent, Ray White, which received the amounts paid by the tenants of Units 1-5. This ensured that Mr and Mrs Parker were paid these moneys. The formalities followed later.
31. Mr Miroslav Antonijevic saw an advertisement in a newspaper and rang the telephone number. Mr Ollis telephoned him back. Mr Antonijevic was told by Mr Ollis that he was selling houses and flats in the country and that the investors would receive a 10 per cent return on the money they invested in their purchases. Mr Ollis said that he would sell Mr Antonijevic the property , that he would lease it back and look after everything and that all Mr Antonijevic had to worry about was the Council rates and the insurance. Mr Ollis emphasised that the insurance had to be kept up to date at all times.
32. Mr Antonijevic arranged to meet Mr Ollis at a property comprising 10 flats at 1-3 (also known as 1-5) Phoenix Street, Parkes. They also met with the real estate agents there. They were able to inspect one flat. All the others were occupied. Mr Antonijevic had a general look around the flats. Mr Antonijevic enquired how the scheme worked. Mr Ollis replied using words to this effect "Well, look, you buy the property from me and lease it back for five years. I look after everything. All you have to do like I said before, is pay the rates and the insurance". Mr Ollis nominated a price of $580,000 and would not reduce it. Eventually Mr Antonijevic agreed to that price and paid Mr Ollis a deposit of $5000. Mr Ollis purchased the property for $520,000 from Mr and Mrs Skinner. Completion of both purchases took place within a short time of each other.
33. Mr and Mrs Antonijevic let the Phoenix Street flats to Mr Ollis for 5 years from 24 April 2003 at a rent of $58,000 per year with the rent payable four weeks in advance. The lease is partly blank and does not state the tenant must pay on the first day of every month. The lessee had the right to sublet the premises. The lessee agreed to keep the premises in good order and repair having regard to the condition of the premises at the start of the lease.
34. Mr Antonijevic said that Mr Ollis told him that he would receive 10 per cent annually on his investment to be paid on the first day of each month, in advance,. Mr Antonijevic said that Mr Ollis told him that the rent would be paid monthly.
35. Initially the rental was paid monthly, generally on the first day of the month, but sometimes on the 15th or 16th of the month. Mr Antonijevic was satisfied with the return he was receiving. He telephoned the office of Country House and Land Sales and was referred to Mr Ollis' partner. She referred him to Mr Brad Street whom she said was looking after their Wagga properties. On contacting Mr Street arrangements were made to inspect a property at Wagga. Mr Antonijevic met with a representative of Ray White, the real estate agent and a man called John who worked for Mr Ollis. They inspected Number 3, Nordlingen Drive, Tall Hand, Wagga which comprised six flats. That involved looking at one of the flats. Mr Antonijevic was not impressed with its condition but John assured him that all the required repairs would be done and that the condition of the flats would be "okay", that is they would be repaired to a reasonable standard. The nominated purchase price was $490,000 which was subsequently agreed. Mr Ollis bought the property for $420,000 from Mr and Mrs Andreatta. That purchase was completed about 24 October 2003.
36. Mr Antonijevic said that again it was proposed and agreed that Mr Ollis would lease back the flats The rental payable was to equal 9 per cent of the purchase price of $490,000 with CPI increases. The term of the lease back was to be 25 years and the rent was payable monthly.
37. Mr Antonijevic executed a lease in favour of Mr Ollis for 25 years from 24 October 2003 at a yearly rent of $47,000. Mr Ollis was to pay four weeks in advance. The lease provided for rent increases based on a CPI formula but not less than 3 per cent per annum.
38. The lease did not contain a clause along the lines of the oral agreement as to repairs but instead contained a clause to the effect that the lessee would at his own cost keep the premises in good order and repair having regard to the condition of the premises at the start of the lease. Clause 12 of the written lease provided that it superseded all prior agreements, verbal or written.
39. In October 2003, February 2004 and May 2004 Mr Ollis sent a Newsletter to Mr Antonijevic and other investors. They referred to the large increase in the business, delays being experienced by some investors in their advance rental payments and up to $1 million being estimated in the completed renovation costs to date, involving new carpeting, interior painting, installation of air conditioners, kitchen cupboards etc to many of the investors' properties. In the February 2004 Newsletter it was stated that it was expected that in early March 2004 the affairs of Country House and Land Sales would be back on track.
40. In the May 2004 Newsletter (Ex 8) Mr Ollis wrote that the firm had been hurting from the outcome of the 60 Minutes program and that they may be out of schedule with the payment timing on the investors' rent but they were trying to catch up. It was stated that they had 300-odd investors. They were asked to minimise their telephone calls. It was stated that investors would eventually be paid, that hardship was being experienced, that the firm's reserves were being drained, that their property maintenance crews were still being kept busy, that all properties have been undergoing refurbishment which was complete on most of the properties, and that they continued to keep up with the ongoing maintenance on the investors' property.
41. Rental payments were made by Mr Ollis in respect of the Phoenix Street, Parkes property from May 2002 to January 2004. Although sent a statement for February 2004 Mr Antonijevic did not receive any payment for February 2004.
42. Mr Antonijevic said that when he was not paid the rental moneys he telephoned Mr Ollis and said "Look I haven't been paid for two months now. What's going on? You want me to go to a solicitor – or are you going to fix it?" Mr Ollis responded, "Don't worry, … solicitors never make you any money. … You'll get paid." Mr Antonijevic said that he was not paid. Mr Antonijevic went to his solicitor a little later.
43. As to the premises at 1-5 Phoenix Street Parkes, by letter of 25 June 2004 the solicitors for Mr Antonijevic wrote to Mr Ollis that he had failed to rectify breach of the obligation to pay rental, that this breach constituted a repudiation of the lease, that he terminated the lease and that he would take possession of the premises and deal direct with the current occupiers of the premises.
44. Apparently, a similar letter was written on 25 June 2004 in respect of the flats at 3 Nordlingen Drive, Wagga (see Mr Ollis' letter of 12 July 2004). The letters suggest that as from 1 July 2004 Mr Ollis assumed that Mr Antonijevic had taken over control of both the Parkes and Wagga properties.
45. Mr Antonijevic said that he had still not been paid the outstanding rental moneys.
46. I interpolate that neither Mr and Mrs Parker, nor Mr and Mrs Antonijevic could object to Mr Ollis re-selling the flats to them at a substantial profit. Their point was that with such a profit there should have been no difficulty in Mr Ollis making the rental payments promised. Money spent repairing and maintaining the flats was likely to result in higher rents payable by his sub-tenants.
47. In 2003 Ms Heather Goltz was interested in acquiring a property in Wellington to which she might eventually retire. She telephoned Country House and Land Sales and spoke with a Mrs Catherine Pullen about early-mid November 2003. A few days later she came to Ms Goltz house. After some discussion Mrs Pullen advised that the property, 23 Walker Crescent was available for $79,000. She said that Mr Victor Ollis would on-sell the property to her and then lease the property back at a rental payable to her. Ms Goltz said she was given a letter stating that she would get a rental return of approximately 10 per cent per annum and that the annual return would be $7,900.
48. Country House and Land Sales in its FAX also stated, amongst other things:
"Following exchange and payment of 1-0% deposit ny Ms Heather Goltz to Mr V W Ollis, Mr Ollis has 90 days to renovate the property
All 10% deposit monies will be refunded to Ms Goltz."Following the renovation of 23 Walker Crescent Wellington Ms Goltz has the option of inspecting the property and withdrawing from the contract if not happy to proceed.
49. Ms Goltz paid the deposit of $7900 about 17 November 2003. She understood that Mr Ollis had to acquire the property before he sold it to her. Mrs Pullen recommended that Ms Goltz use Mr Melissari from Austates Conveyancers. Ms Goltz saw Mr Melissari and signed what she described as a contract in November 2003. Thereafter she heard nothing until Mrs Pullen telephoned her on Australia Day and told her that she (Goltz) should ring Mr Melissari as she (Pullen) had heard that the house was no longer available for Mr Ollis to purchase – it was going up for auction.
50. About early or mid February Mrs Pullen telephoned and enquired whether Ms Goltz had heard back from Mr Melissari. A little later Mrs Pullen telephoned again and told Ms Goltz that she should write to Mr Melissari asking for her deposit back. By letter of 16 February 2004 Ms Goltz wrote to Mr Melissari asking him to take the necessary steps to procure a refund of her deposit of $7900 without deduction. Nothing appeared to happen.
51. By letter of 24 March 2004 Ms Goltz wrote to Country House and Land Sales seeking the return of the deposit.
52. Ms Goltz consulted Champion Legal who, on 22 April 2004, wrote a letter of demand to Mr Ollis T/As Country House and Land Sales. Within a few days Ms Goltz received a letter dated 27 April 2004 from Austates Conveyancers asking her to sign a Deed of Release. That Deed stated that the agreement between Ms Goltz and Mr Ollis was terminated, that the vendor would direct the agent to return any deposit paid on Mr Ollis' behalf to the purchaser and that neither party shall make any claim against the other.
53. Unsurprisingly, Champion Legal responded by letter to Mr Ollis that Ms Goltz would provide the signed Deed of Release in exchange for a bank cheque for $7900. Mr Ollis ignored the further letters and telephone calls of Champion Legal.
54. On 28 July 2004 Ms Goltz issued proceedings out of the Local Court seeking to recover $7900.
55. By his defence Mr Ollis did not dispute that $7900 was paid to him. He relied on an option agreement of 17 November 2003 signed by Ms Goltz and Mrs C Pullen on behalf of Mr V Ollis as to 23 Walker Crescent which provided:
Rental return $7900 pa 10%Total price of proposed Contract: $79,000
Non refundable fee of 2%: $1580.00) $7900 to be paid 17/11/03
Balance of deposit 8%: $6320.00)
Purchaser's Solicitor: Mr Tony Melissari
Austates Conveyancing (sic)
56. In mid October 2004 the matter was settled on the basis of Mr Ollis paying Ms Goltz $6900 inclusive of legal costs.
57. After Mrs A McConnell-Twiss read the advertisement of 28 January 2003 inserted by Mr Ollis in the Daily Telegraph she telephoned Mr Ollis. He explained to her that he ran bus trips regularly to country towns. He invited her to come on one of these bus trips and she agreed. She asked to be placed on the mailing list and received some promotional material. She went on a bus trip about July 2003. She was given a bundle of material on the bus by a lady she understood to be Mr Ollis' wife. He was also present.
58. Mrs McConnell-Twiss said that on the bus trip Mr Ollis promoted each of the various country towns visited. He said that the properties he was selling would all appreciate in value because they were close to schools and hospitals and close to Sydney. It was easy for people to get backwards and forwards on public transport. He also said that he would be able to get tenants into the houses very early and that if he sold the houses he would like to sub-let them, then look after them and maintain them. He would pay them rent one month in advance and they would not have to worry about anything because for 10 years at least it would all be looked after for them and their properties would appreciate. Mr Ollis also said he would do all the repairs to the property, that he would make these houses look perfect so that they would be able to get very good tenants who would stay. He added that Centrelink, which paid the pensions, would pay the rent directly to him, that he would pay the rent to them and that they would not have to worry because of the way he had arranged the business. Mr Ollis emphasised his experience in property matters and his knowledge of what people wanted when they retire.
59. As a result of what Mr Ollis said she had caused three properties in Wellington to be purchased. The properties 6 Dibbs Street and 14 Samuel Street had been purchased on the same day. 6 Dibbs Street was purchased in the name of P Twiss and her name for $65,000 and 14 Samuel Street was purchased in the name of her superannuation fund. The third property, 18 Glasson Street, was purchased in the name of K Twiss and her name. P Twiss and she entered into a lease with Mr Ollis as lessee of 6 Dibbs Street for 5 years from 22 August 2003 at a rental of $6500 p.a payable on the first day of every month ($541.66)
60. The purchase price of 18 Glasson Street was stated to be $69,000. K Twiss and she entered into a lease with Mr Ollis as lessee of 18 Glasson Street for 5 years from 22 August 2003 at an annual rental of $6900 payable 4 weeks in advance ($575 per month).
61. No copy lease as to 14 Samuel Street was tendered, counsel for the defendants stating that they did not seem to have one.
62. On 28 September 2005 the Consumer Trader and Tenancy Tribunal made the following orders by consent:
(a) (i) As to 6 Dibbs Street, Wellington – that Victor Ollis pay Marilyn McConnell-Twiss and P Twiss $8882.92 for rent owed to 22/09/05 by instalments of $250 per month and
(ii) Victor Ollis is to pay rent presently $541.66 per month payable on the 22nd of each month
(iii) The total amount under Orders (i) and (ii) for rent and arrears is payable by instalments of $791.66 per month first payment 22/10/2005
(b) (i) As to 18 Glasson Street, Wellington – that Victor Ollis pay Marilyn McConnell-Twiss and K Twiss $9995.14 for rent owed to 08/09/05 by instalments of $250 per month
(iii) The total amount under orders (i) and (ii) for rent and arrears is payable by instalments of $825 per month first payment 08/10/2005.(ii) Victor Ollis is to pay rent presently $575 per month payable on the 8th of each month.
63. In each case it was provided that default in payment of any instalment of arrears will cause the whole of the balance then outstanding to become immediately due and payable.
64. Mrs McConnell-Twiss said that she had received some payments under these Orders but substantial amounts remained outstanding.
65. Mrs McConnell-Twiss said that during 2004 she spoke to Mr Ollis and taxed him with not having done the promised work on the houses. She said that he told her he was going to do the work soon. It was on his list. He had a lot of work on. He also promised to pay the outstanding money.
66. She first inspected the houses in 2005, not having inspected any of the properties prior to purchase. In 2005 she telephoned Mr Ollis and said that he had not done anything to the houses, that she believed that he was in breach of their agreement and that it was obvious that he did not intend to do the work. There were a number of telephone conversations. She said that he repeated that he was going to do the work. He stated that he was using the workman who normally worked in Wellington in Parkes because there was a lot going up there and he had a lot of bills.
67. The materials show the following prices at which Mr Ollis purchased and sold these houses to the McConnell-Twiss interests:
6 Dibbs Street $65,000 $65,000Property Price Ollis purchased Price Ollis
Property sold property to McDonnell-Twiss
interests
14 Samuel Street $50,000 $68,000
18 Glasson Street $50,000 $69,000
When the three properties are taken together there is a mark-up of $37,000. That could cover the rents.
68. The promotional material handed to potential investors stresses the guaranteed income which Country House and Land Sales provided. One feature of this is a full time maintenance team who go from property to property making sure that maintenance is done on a regular basis. The condition of the property is checked. The maintenance team also renovates the property prior to the new tenant taking up residence.
69. It is apparent from the Parker, Antonijevic and McConnell-Twiss matters the promotional material and the conduct of Mr Ollis that he was obtaining substantial moneys from members of the public by way of sales of property to them and inducing purchases by members of the public by promising returns in the form of high rentals from him which he did not meet and either did not intend to meet or could not meet because of other commitments or other reasons. There were also the maintenance and repair promises.
Westpac Funds
70. The defendants relied on affidavits filed by some officers of Westpac Banking Corporation Limited and Mr J H Williams, an expert accountant in proceedings in Equity 50045/2006 between Westpac v Ollis & Others pursuant to leave granted by me. This leave was not opposed but earlier Mr Ollis had strongly opposed the defendants being allowed to rely on particulars as to the Westpac funds. On 3 September 2007 I granted the defendants leave to amend to rely on the conduct of Mr Ollis qua Westpac and the funds he obtained from them as set out in the letter of the defendants' solicitors. The matter is covered in my judgment of 11 December 2007. In the interests of saving costs I did not require the defendants to file another further amended defence.
71. Mr Ollis did not require any of the deponents whose affidavits from the Westpac proceedings were read to attend for cross-examination nor did he wish to tender any of their cross-examination from the Westpac proceedings. He did not call any evidence in reply to the Westpac material.
72. Mr Ollis opened his first account with Westpac (732591 541135 – referred to as 135) on 13 October 2000. Ms Shields, his partner became a signatory authorised to operate this account on 14 October 2003. This account has been described as his personal account.
73. Mr Ollis opened a second count (032523 180123 – referred to as 123) on 18 March 2002 in the name of Victor Ollis trading as Nyngan Oasis Motel. This was described as his business account.
74. On 19 August 2003 Mr Ollis established a facility known as an "Auto-transfer replenishment product" ("ATR") between the two accounts he held at Westpac, namely his personal account (135) and his business account (123). The effect of the ATR is that the personal account is used to replenish any overdrawn balance in the business account so that the business account balance is returned to zero. For example, the customer writes a cheque or makes a payment out of the business account, say for $5000, making the business account overdrawn by $5000. The ATR then causes the funds in the personal account to automatically replenish the business account to zero, that is to transfer the required sum from the personal account to the business account.
75. Once the ATR Authority was completed by Mr Ollis it was loaded onto the Bank's computer system.
76. On 17 February 2004 Mr Ollis drew a cheque on his business account for $37,000. On this day the ATR caused his personal account to replenish his business account. Pursuant to the ATR, the balance in his business account was brought back to zero. His personal account did not contain sufficient funds to cover the withdrawal of $37,500 and the personal account became overdrawn by $36,536.29. On 25 March 2004 the personal account was frozen by the Bank's Collections Area so that only credits (or payments in) could be made to the account..
77. From 17 February 2004 onwards Mr Ollis drew a series of cheques on his business account which led to the personal account being overdrawn because it replenished the business account, the amount of such overdrawing exceeding $11 million by January 2006.
78. Despite Westpac freezing the personal account, on it becoming overdrawn, the faulty system which Westpac employed continued to result in the business account being replenished. This only stopped when the business account was frozen on 12 January 2006, being marked "post credits only". How this occurred is explained in the affidavits of R J Witheridge of 28 July 2006 and F Mazzone of 28 July 2006.
79. Mr Ollis disbursed the more than $11 million obtained from the business account in less than two years thus:
(a) $4,835,248 was paid by Mr Ollis to his partner, Ms Shields or for her benefit; and
(b) $2,860,006 in repayment of a loan from Mr Mark Smith; and
(This material appears from the two reports of Mr J H Williams – see in particular paragraphs 40 and 44 of his report of 28 July 2006 annexed to his affidavit of that date)(c) the balance in purchasing various properties and in sundry other ways.
80. At the time the Bank froze Mr Ollis personal account and placed it on a "post credits only" basis a letter was sent to Mr Ollis informing him of the change of status on his personal account.
81. In April, May, June, July and August 2004 Westpac wrote or otherwise contacted Mr Ollis seeking payment of the outstanding moneys. On an occasion in April 2004, one in July 2004 and one in August 2004, Mr Ollis stated that he would clear the overdraft amount within a limited period of days.
82. From the establishment of the ATR in August 2003 Mr Ollis was aware that the Bank was only prepared to do business with him on a cash basis. It had not granted him any overdraft facilities. If he overdrew on his business account there was to be an automatic replenishment from his personal account.
83. Mr Ollis must have been very surprised when the cheque he drew on the business account for $37,500 was met and even more surprised when subsequent cheques were met. These were substantial amounts. By not later than April 2004 Mr Ollis must have realised that something had gone wrong in Westpac and that Westpac was meeting cheques and paying moneys for his unintended benefit that it never meant to pay him or as he directed. Mr Ollis exploited the situation for his benefit and to the detriment of Westpac as he must have known and continued to do so until 12 January 2006.
84. I accept the defendants' submission that in the absence of any credible evidence to the contrary, the only reasonably available inference is that Mr Ollis, by some stage in 2004, was engaged in a practice of dishonestly withdrawing money from his Westpac accounts and disbursing it, in circumstances where he had every reason to think, and indeed must have realised, that Westpac did not intend him to receive such funds and where he did not intend to repay them in any event.
85. Counsel for Mr Ollis submitted that it was up to Westpac to decide whether to meet the cheques Mr Ollis drew. It was not Mr Ollis' fault that Westpac had a system which saw the cheques drawn on the business account being paid. Mr Ollis drew the cheques and Westpac paid them. They allowed the situation to continue for virtually two years. Each cheque not covered by funds in hand was tantamount to a request in that amount for an overdraft. The Bank granted these requests and did not tell Mr Ollis to stop. This was erroneous on the part of Westpac.
86. It was pointed out by his counsel that there was no evidence of Mr Ollis transferring funds overseas or otherwise seeking to dispose of assets. The money obtained stayed in Australia and mainly in New South Wales. It could readily be traced. See, for example, the orders of Einstein J in Eq 50045/2006.
87. Mr Ollis submitted that the evidence fell far short of establishing imputations (b) and (j). Counsel accepted that Mr Ollis may have played the game pretty hard but contended that he had done nothing fraudulent or dishonest and that his conduct fell far short of justifying these imputations.
88. $11 million is rather a large sum to obtain from a bank when you have no overdraft facilities and have provided no security. Nor was there any evidence that he enjoyed the reputation of a major and successful business man to whom a bank might lend such a large sum.
89. The evidence does not suggest that Mr Ollis had the ability to repay such a sum or that he intended to do so. He took what moneys he could procure and disbursed them. It does not assist him to submit that he avoided the grossest forms of dishonesty when his conduct was dishonest.
90. The evidence as to the Westpac funds justifies imputations (b) and (j). It establishes that the plaintiff was a crook from March 2004 (and possibly February 2004) to January 2006 and that he was likely to rip off everyone he comes into contact with. This justification is reinforced by the convictions and his conduct towards Mr & Mrs Parker, Mr & Mrs Antonijevic , Mrs McConnell-Twiss and Ms Goltz
91. Mr Ollis, by his counsel, undertook an analysis of the evidence of Mr Parker, Mrs McConnell-Twiss and Ms Goltz.
92. As to Mr and Mrs Parker, Mr Ollis submitted that there was a genuine dispute between them and him over the purchase of the vacant land at Wellington and the sum described as rent in advance in respect of the rented properties. I found the evidence of Mr Parker compelling. They were afforded a temporary loan while they sold a Queensland property. Mr Ollis submitted that in any event the sum of $7000 ordered to be repaid by the Consumer Trader & Tenancy Tribunal had been paid. However, it must not be overlooked that Mr and Mrs Parker, as a practical measure, agreed with "Gail" on behalf of Mr Ollis to terminate the lease of Mr Ollis as to the property in Ebelina Crescent, Parkes. Their "guaranteed" income had gone and Mr Ollis' representations and promises were virtually worthless.
93. Mr Ollis pointed out that Mr Parker gave the only live evidence as to Mr Ollis' reputation. Mr Parker said that during 2004 he and his wife became aware of that reputation, namely, that he was a shady character and you should not deal with him. Counsel pointed out that there was no evidence as to when in 2004 Mr and Mrs Parker became aware of this.
94. Counsel for Mr Ollis submitted that it was very unlikely that 300 people would have dealt with Mr Ollis if he had a shady reputation and that Mr Parker would not have dealt with Mr Ollis if Mr Parker had been so aware. A reputation is built up over a period of time. Some persons may not become aware of the reputation which a particular person has built up until after they are well advanced in their dealings with that person. An incident may lead to them making enquiries. Because some persons are not aware of the particular person's general reputation it does not follow that that person does not have a poor general reputation.
95. In my opinion the point made by counsel for Mr Ollis was not sound.
96. Mr Ollis was critical of the evidence of Mrs McConnell-Twiss. She claimed still to be owed money yet her evidence lacked the necessary precision. The orders made by the Consumer Trader & Tenancy Tribunal were made by consent and the sums owing were in their context substantiated. Mrs McConnell-Twiss' evidence as to the poor state of repair and maintenance in respect of the houses was not disputed. The rate of repayment of the arrears was very modest.
97. The defendants did not seek to justify the imputation that Mr Ollis took $7900 from a woman (Ms Goltz) by fraud. Ms Goltz was made aware that Mr Ollis had to acquire the property before he could sell the property to her. Mr Ollis did hold an option justifying the deduction of $1580 from the deposit of $7900. However, although the transaction had fallen through by at least mi-February 2004, Mr Ollis, despite a request to refund the deposit, did not refund the balance of the deposit which he knew was owing nor did he supply Ms Goltz with a copy of the option and direct her attention to its terms. A Local Court summons was filed by Ms Goltz and in early September 2004 a defence was filed as to $1580 by Mr Ollis. Then in mid October 2004 Mr Ollis made a settlement offer and the matter was settled shortly before it was listed in Court. The big advantage of the settlement of $6900 inclusive of costs was that Ms Goltz received a bank cheque in that amount. Mr Olis had obtained the use of Ms Goltz' money for eight to eleven months at virtually no cost.
98. As to Mr Antonijevic, the rent on the flats in Phoenix Street, Parkes was paid substantially satisfactorily for a relatively short period and that led Mr Antonijevic to purchase the flats at 3 Nordlingen Drive, Wagga. Not long after that payments were not made as promised.
99. As from 1 July 2004 Mr Antonijevic assumed control of the properties, relying on Mr Ollis' failure to rectify the breach of the obligation to pay the rent in respect of each property.
100. It is unexplained why Mr Ollis did not pay the rents he had promised when he had made a substantial profit on the purchase of the properties and he was obtaining substantial sums from his drawings on his business account with Westpac.
101. Mr Ollis submitted that the three instances as to which the defendants had led evidence, namely, Parker, Antonijevic and McConnell-Twiss were insufficient to support the sweeping general allegations which the defendants had made. These included not only imputations (b), (f) and (j) but also imputation (c).
102. While each part of the evidence must be carefully analysed it is important to look at the overall effect of the evidence.
103. Mr Ollis submitted as to imputation (c) there was no evidence that he had habitually failed to pass on rent payments to landlords of the properties. Mr Ollis submitted that it had not been suggested in the evidence that he did not pass on the rents he had received from his sub-tenants. The complaint was that he had not made the rental payments which he had promised. As he was not making the rental payments Messrs Parker and Antonijevic (and their respective wives) took over collecting the rents from the tenants to avoid a situation where the rents were collected from the sub-tenants by the local agent and not passed on to the landlords Parker and Antonijevic. Mrs McConnell-Twiss had to take proceedings against Mr Ollis in respect of non-payment of rent. In its context, imputation (c) means that Mr Ollis had not made the rent payments to the landlords of the properties he managed. If imputation (c) has a wider meaning, it appears that when Mr Ollis fell into arrears with his rental payments he did not pass on the rental payments received from the sub-tenants in part payment of his (Ollis') obligations.
104. As earlier mentioned, no evidence was led in justification of imputations (d) and (e).
105. As to imputation (f), namely, that the plaintiff is likely to defraud investors and business associates of their savings, the plaintiff submitted that his convictions for dishonesty were old and that there was no evidence of current investors being defrauded. The convictions occurred many years ago but the evidence established that Mr Ollis had not changed his dishonest ways. I disagree with the submission that there was no evidence of current investors being defrauded.
106. Mr Ollis was inducing purchasers to buy properties from him by making rosy representations as to their likely increase in value and more particularly as to the returns they would receive on the properties they purchased from him in the lease-back rentals he was prepared to pay for a lengthy period. It was the lengthy lease-back (5 years, 10 years) at a high rental which made the purchase of the properties attractive to investors at the prices specified by Mr Ollis. Mr Ollis was offering high rates of return on real estate investments. It must have been obvious to him that these rates of return could not be sustained unless he utilized substantial funds from other sources than the rents paid by the sub-tenants. He promised to take care of repairs and maintenance on the properties he leased back.
107. The conduct of Mr Ollis just mentioned has to be taken in conjunction with his conduct to Westpac and knowingly taking about $11 million to which he was not entitled. In my opinion imputation (f) is justified. Alternatively, if I am wrong in this opinion, the contextual imputations have the effect that he has no reputation for financial honesty but the reverse; he has the reputation of a crook.
108. As mentioned, there is no evidence in justification of imputations (g) or (h).
109. As to imputation (i) namely that the plaintiff kept a $7900 deposit when he should have returned it, the plaintiff contended that there was a dispute as to the amount to be refunded. The plaintiff neither responded to the early correspondence from Ms Goltz nor explained his claim or partial defence. Mr Ollis did not refund the moneys he admittedly owed but kept the money for many months before he refunded it. This imputation is substantially true. He should have returned most of the deposit and not kept it. A dispute about a small amount of the deposit did not justify retention of the whole deposit.
110. As to imputation (g) the plaintiff submitted that while there was evidence that he had been a crook in the past, there was no evidence that he was a crook about the time of the publication. His conduct as to Westpac during 2004 was that of a crook as was his conduct towards investors during 2003 and 2004.
111. I return to the four imputations which were not justified, namely:
(d) The plaintiff forces some of his tenants to live in atrocious conditions
(e) The plaintiff does not pay tradespeople for the work they do for him
(h) The plaintiff took $7900 from a woman by fraud.(g) The plaintiff arranges for criminals to visit his critics at their homes to intimidate them
112. In the light of the conduct proved against Mr Ollis I do not regard imputation (h) as damaging or further damaging his reputation and I regard imputation (e) as not inflicting other than inconsequential damage. Imputation (d) is serious. Imputation (g) is a nasty smear and adds a different and serious dimension to the allegations against Mr Ollis. This imputation goes further than being a financial crook. In substance it is asserting that he causes standover men to visit his critics at their homes. That is unlawful and wrongful conduct of a high order.
113. On the last day of the hearing -
(2) the defendants accepted that the matter complained of was downloaded and read by the people mentioned in para 5(d) of the Statement of Claim which reads:(1) the defendants advised that they were not seeking to rely on the Goulburn Heritage Lodge matter particularised in the letter of 30 August 2007 from their solicitor.
(i) Anne Hunter … Grafton, NSW"(d) The matter complained of was published in all States and Territories in Australia by persons who downloaded and read it including:
(ii) Patricia Scott … Oxenford, Queensland
(iii) Phyllis Martin … Burleigh Waters, Queensland
(iv) Virginia Gill … Terrigal, NSW"
(3) the defendants advised that the four publications mentioned may be treated as perfecting the cause of action in defamation but subject to the defences raised
[This is subject to an exception – The defendants have deleted from their website this statement "And one more thing. Be careful what you say about him. You're likely to get a visitor at your home or some threats in the mail Word is that Ollis made some pals during those years in prison." (lines 44-46)](4) the material in the matter complained of is still present on the website maintained by the defendants.
114. In their answers to interrogatories the defendants estimated that about 4080 people accessed the matter complained of on the defendants website. There is no evidence whether these people or any of them read the whole or part of the material on the website, retained any of it or printed out a copy of it.
115. Both parties accepted that the maximum number of people who could have read the matter complained of on the website was 4080. How many did read it is not known. The item would not have to be read in detail to capture its flavour. The material would not fit on to a computer screen. It would have to be scrolled up. I doubt if viewers or readers would access the website in question without a particular interest in the subject matter. It is not an item which would attract a lot of idle curiosity. While there can be no precision my best assessment is that probably about half the viewers would have appreciated that the defendants were stating that Mr Ollis was a financial crook who used "standover men".
116. On 27 February 1995 the Deputy Premier of Queensland made a Ministerial Statement in the Queensland Parliament trenchantly criticising Mr Ollis. The Minister referred to his conviction in 1985 for defrauding elderly people stating that the charges related to the misappropriation of moneys and the making of false promises. The Deputy Premier stated, amongst other things, that he wanted to warn landlords about the activities of Mr Ollis. The Deputy Premier referred to one instance where Mr Ollis and Gail Lye were ordered to pay $13,523 for rental arrears and electricity costs. The Deputy Premier stated that landlords should seek urgent legal advice and that some landlords had complained about bounced cheques. Three years later, namely in September 1998 the plaintiff was made bankrupt.
117. Mr Ollis convictions for fraud and related matters and his subsequent conduct were matters of public interest. He had a long history of dubious conduct and he was again seeking, in 2002 to 2006, to engage in financial transactions with the public and procure money from them with seemingly attractive propositions. To the extent that the allegations concerning Mr Ollis' character and misconduct were true they were published in the public interest and thus satisfy the requirement in New South Wales.
118. In Queensland and the Australian Capital Territory the requirement that, in addition to truth, the publication be for the public benefit has also been satisfied.
119. I have earlier held, or would hold, that imputations (a), (b), (c), (f), (i) and (j) are matters of substantial truth (NSW). In Queensland and the Australian Capital Territory the matter complained of has, except that covered in imputations (d), (e), (g) and (h) (and I am using the short form) been shown to be substantially true. The defendants, to the extent to which the matter complained of is only partially true, rely upon that partially true material in mitigation of damage.
120. In New South Wales the defendants relied upon s 16 of the Defamation Act 1974 and what is shortly described as contextual truth. Section 16(1) provides:
- "(1) Where an imputation complained of is made by the publication of any report, article … or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of."
121. Consequent upon s 16(2) of the Act the defendants pleaded as a defence to any of the imputations complained of that:
(a) each of the justified imputations, namely, (a)(, (b), (c), (e), (f), (i), and (j) related to a matter of public interest, and
(b) each of the imputations (10) was published contextually to each other and borne by the matter complained of, and
(at the hearing imputation (e) was not sought to be justified).(c) by reason of the substantial truth of the justified imputations and each of them none of the imputations found to have been borne by the matter complained of and in respect of which a defence not (otherwise) available, further injure the reputation of the plaintiff.
122. In Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 at 39 Hunt J explained of contextual truth:
"The defence of contextual truth accepts that the matter complained of conveys the imputation pleaded by the plaintiff and that no other defence has been established in relation to that imputation; it asserts that the imputation pleaded by the defendant is also conveyed by the matter complained of (such imputation being called the contextual imputation); the defence then asserts that even though the plaintiff's imputation is otherwise indefensible, such is the effect of the substantial truth of the defendant's contextual imputation upon the plaintiff's reputation that the publication of the imputation of which he complains did not further injure his reputation."
123. This analysis was followed by Priestley JA in Waterhouse v Hickie [1995] Aust Tort Reports (at 62, 493-4) and by the Court of Appeal in CN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 683 at 691.
124. In Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 at 400 Hunt J formulated this issue
"(3) Is the nature of the defendant's contextual imputation (or the contextual effect of those contextual imputations where more than one, and where appropriate to be so combined) such that its or their substantial truth is capable of being rationally considered by the jury as so affecting the plaintiff's reputation that the plaintiff's imputation to which it is or they are pleaded did not further injure that reputation."
125. I have earlier referred to the four imputations which were not justified and mentioned that imputation (h) does not further damage his reputation. In the light of the substantial fraudulent conduct proven on the part of the plaintiff any further damage to the plaintiff's reputation by imputation (e) is inconsequential, if not non-existent.
126. Imputations (d) and (g), especially (g), raise serious issues. The plaintiff led no evidence of enjoying a good reputation. He did not enter the witness box and lead evidence as to either imputation. He did not have to do so.
127. In Carson v John Fairfax & Sons Ltd (1992-1993) 178 CLR 44 Mason CJ, Deane, Dawson & Gaudron JJ said at 60-61) (citations omitted):
"Specific economic loss and exemplary or punitive damages aside there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that 'the amount of a verdict is a product of a mixture of inextricable considerations.' The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal (and if relevant) business reputation and vindication of the appellant's reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation."
128. The plaintiff has a poor reputation and has had a poor reputation for a long time. His financial fraud and dishonesty has overshadowed all else. In making findings of fact I have applied s 140 of the Evidence Act and as to those against Mr Ollis I have taken into account the gravity of the matters alleged against him (s 140(2) (c) of that Act).
129. The plaintiff has emphasised the publications interstate and in the Territories. He drew attention to the lack of contextual imputations in other than New South Wales. The plaintiff underlined the lack of the defences of justification in four aspects.
130. Taking into account the lack of justification as to four imputations in the States and Territories other than New South Wales, the position in New South Wales (having regard to the contextual imputations) and the poor reputation of the plaintiff I assess the plaintiff's damages as $20,000. This is primarily because of imputation (g) (arranging for criminals to visit his critics) and to a lesser extent imputation (d) (forcing some tenants to live in atrocious conditions).
131. The plaintiff sought aggravated damages. The basis of this claim was that while the defendants deleted lines 44-46 of the matters complained of (visits and threats) they did not delete any of the other material which they could not justify, especially the imputation of tenants having to live in atrocious conditions.
132. This is not a case for aggravated damages. The defendants did not press defences they could not justify. Most of the defences which could not be supported were withdrawn prior to the trial. Both sides conducted an economical trial.
133. There will be a verdict for the plaintiff for $20,000. I stand over the question of costs for argument. There was a major late amendment and the defendants were not ready to proceed with the hearing when they should have been.
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