Xu & Anor v Li

[2025] VCC 11

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

DEFAMATION LIST

Case No. CI-24-04072

Chongli Xu & Federation of Chinese Associations (Vic)	Plaintiff
v
Mingjie Li	Defendant

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JUDGE:	CLAYTON
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2024
DATE OF JUDGMENT:	28 January 2025
CASE MAY BE CITED AS:	Xu & Anor v Li
MEDIUM NEUTRAL CITATION:	[2025] VCC 11

REASONS FOR JUDGMENT
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Subject:DAMAGES - DEFAMATION

Catchwords:            Assessment of damages – defamation – judgment in default – publication on WeChat Groups – excluded corporation - serious harm - business loss alleged – whether loss alleged in statement of claim taken to be admitted by failure to file a defence

Legislation Cited:     Defamation Act 2005 (Vic); County Court Civil Procedure Rules 2018

Cases Cited:Belbin & Ors v Lower Murray Urban and Rural Water Corporation [2012] VSC 535; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44.; Cribb v Freyberger [1919] WN 22; Damberg v Damberg & Ors (2001) 52 NSWLR 492; Electrolux Home Products Pty Ltd v Delap Impex KFT (2015) FCA 62; Finlayson v Indigenous Business Australia [2014] VSCA 95; Gramophone Co Ltd v Magazine Holder Co (1911) 28 RPC 221; Lombank Ltd v Cook [1962] WLR 1133; [1962] 3 All ER 491; Macquarie Bank Ltd v Seagle (2005) 146 FCR 400; National Bank of Australasia v Cohen (1896) 22 VLR 269; Nixon v W Phelan and Son Pty Ltd [1959] VR 83; Parkville Court Pty Ltd v Salvaris [1975] VR 393; Stewart v Coughlan (1885) 11 VLR 279; Wilson v Bauer Media Pty Ltd [2017] VSC 521

Judgment: Judgment entered pursuant to Order 24 of the County Court Civil Procedure Rules.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Campbell	Berrigan Doube Lawyers
For the Defendant	Self-represented	Self-represented

HIS HONOUR:

1The plaintiffs, Mr Chongli Xu and the Federation of Chinese Associations (Vic) (“FCA”) claim the defendant, Mr Mingjie Li published a number of defamatory posts primarily on the platform WeChat, between 9 March 2024 and 1 April 2024.

2On 11 June 2024, both plaintiffs served a concerns notice on Mr Li in relation to their respective matters. There was no response to either concerns notice. On 15 July 2024 the plaintiffs filed this proceeding which was served on 31 July 2024.

3No notice of appearance was entered in the time allowed under the County Court Civil Procedure Rules 2018 and the plaintiffs made application for judgment in default of appearance which was entered on 20 September 2024.

4Mr Li attended a hearing before the Court to set a timetable for the trial assessment. At that hearing he was informed that the trial assessment would proceed unless he made an application to set judgment aside. No such application was made.

5Accordingly, the matter was set down for a trial assessment on 10 December 2024. Mr Li attended the assessment in person.

6Pursuant to Order 51 of the County Court Civil Procedure Rules 2018, the plaintiffs seek to have their damages assessed. The plaintiffs rely on the following affidavits:

(a)   Affidavit of Ying Du dated 9 December 2024;

(b)   Affidavit of Hui Jang dated 9 December 2024;

(c)   Affidavit of Ashley Lin dated 9 December 2024;

(d)   Affidavit of Anthony Lin dated 9 December 2024;

(e)   Affidavit of Chongli Xu dated 9 December 2024; and

(f)    Affidavit of Racquel Po dated 22 November 2024.

7In cases where a defendant fails to file a defence, the matters in the Statement of Claim are taken to be admitted.[1] In the assessment of this case, I therefore proceed on the basis that Mr Li is deemed to have admitted the allegations contained in the Statement of Claim.

[1]Stewart v Coughlan (1885) 11 VLR 279; National Bank of Australasia v Cohen (1896) 22 VLR 269; Cribb v Freyberger [1919] WN 22; Nixon v W Phelan and Son Pty Ltd [1959] VR 83; Lombank Ltd v Cook [1962] WLR 1133; [1962] 3 All ER 491, 498; Parkville Court Pty Ltd v Salvaris [1975] VR 393 at [395]; Finlayson v Indigenous Business Australia [2014] VSCA 95 at paragraph [32].

Background

8Mr Xu is a real estate agent by profession, and a member of the second defendant, holding the elected position of vice-president since 2018 and later the position of secretary general in 2020. He has been an active member of the FCA since 2016.

9The FCA is a not-for-profit organisation formed to promote Chinese culture, trade and understanding within and between, the Chinese and broader Australia communities. The FCA is an excluded corporation for the purposes of s9 of the Defamation Act 2005 (Vic), on the grounds that the objects for which it was formed do not include financial gain.[2]

[2]s 9 (2)(a).

10Mr Li was the deputy secretary general of the FCA.

11Mr Li is a member of a number of WeChat groups including Chunwan Dawuan and Changlio Tianxia (“the WeChat groups”).

12Posts in the WeChat groups are primarily written in Chinese. The publications the subject of this proceeding were written in Chinese and have been translated by a NAATI accredited translator.

The Publications

13On 9 March 2024 Mr Li published a post (“the first publication”) on the WeChat groups.

14The first publication contained imputations that Mr Xu:

(a)   does not have any basic sense of human decency in that he despicably usurped a chairman of the Chinese Federation Council on 1 March 2024 whilst actuated by hatred;

(b)   is duplicitous and shameless in that he falsely proclaimed a desire to promote traditional virtues of Chinese culture and safeguard the legitimate rights and interests of Chinese people whilst not holding that desire at a meeting of the Chinese Federation Council on 1 March 2024.

(c)   is not deserving of leading the Federation of Chinese Associations because he:

(i)is duplicitous and shameless in that he falsely proclaimed a desire to promote traditional virtues of Chinese culture and safeguard the legitimate rights and interests of Chinese people whilst not holding that desire at a meeting of the Chinese Federation Council on 1 March 2024; and

(ii)despicably usurped a chairman of the association on 1 March 2024 whilst actuated by malice, thereby demonstrating a lack of respect for the elderly and care for the young.

15On 11 March 2024, Mr Li published a post (“the second publication”) on a website called “Chilli Comment”. I understand that, while Chilli Comment is the literal translation, the gist is more akin to “Hot Gossip”. The second publication conveyed imputations that Mr Xu:

(a)   is evil in that on 10 March 2024, he maliciously injured a harmless old man without remorse at the Glen Waverley Shopping Centre;

(b)   is deceptive and shameful in that he recorded a video of a harmless old man being maliciously injured and covered in bruises at the Glen Waverley Shopping Centre and then edited the video so as to misinterpret the true victim;

(c)   does not even have a shred of humanity because he maliciously injured a harmless old man without any remorse and falsely claimed that the old man’s injuries were fake;

(d)   is inhuman and lacking in human decency because he witnessed bullying in public at the Glen Waverley Shopping Centre on 10 March 2024 and did not intervene, such that Buddha would not forgive him and God would not bless him;

(e)   is tyrannical in that he publicly bullied and humiliated another person on 10 March 2024 at the Glen Waverley Shopping Centre because they said a truthful statement; and

(f)    should be expelled from the FCA because of the matters in subparagraphs (a) to (e) above.

16The second publication conveyed imputations that the FCA:

(a)   is akin to a mafia group in that its leadership encouraged, or acquiesced in, the public battery and humiliation of a member of the organisation;

(b)   is controlled by persons lacking in human decency because they witnessed inhumane bullying in public at the Glen Waverley Shopping Centre on 10 March 2024 and did not intervene, such that Buddha would not forgive them and God would not bless them;

(c)   is incapable of properly representing its constituent members and has no credibility because of the matters in subparagraphs (a) and (b); and

(d)   does not comply with the relevant laws applicable to associations in Victoria.

17On 22 March 2024 Mr Li published a post (“the third publication”) on the WeChat groups. The third publication conveyed imputations that Mr Xu:

(a)   is tyrannical and arrogant in that he believes that he is the overlord of the FCA;

(b)   is contemptuous and disruptive of the FCA because he unilaterally abolished its democratic charter;

(c)   is a pompous charlatan who is blatant in that he pretends to understand association law in order to fool members of the association for his own personal gain;

(d)   is foolish, has breached legal regulations and is deserving of ridicule because he had the FCA registered on 1 March 2024 and assumed a fictitious role of ‘Assistant to the Chairman’; and

(e)   is utterly and wilfully ignorant in that he lacks even the most basic knowledge of the law relating to the FCA and misstated that law to the association.

18On 29 March 2024 the defendant published a post (“the fourth publication”) on the WeChat groups that conveyed imputations that Mr Xu:

(a)   is tyrannical, extremely malicious, and underhanded in that he deliberately creates chaos and lies about his conduct at the FCA in order to create disharmony and disunity between its constituent associations by removing the current chairman, vice-chairman, and several key board members of the FCA; and

(b)   is deserving of denunciation by the community because he has illegally taken control of the FCA by the imputation in subparagraph (a).

19On 29 March 2024 Mr Xu published a post (“the fifth publication”) on the WeChat groups. The fifth publication conveyed imputations that Mr Xu:

(a)   is so dishonest that nothing he says is true about matters relating to the FCA and everything he says about it needs to be dissected and corrected;

(b)   sabotaged an important cultural event, being the Spring Festival Gala, for his own personal gain;

(c)   is malicious in that, were he given control of ticket sales to an important cultural event (being the Spring Festival Gala), he would have undertaken that role with impropriety; and

(d)   is shameful because he is an unelected secretary-general who improperly and publicly discharged the person rightfully elected to that role.

20On 29 March 2024 the defendant published a post (“the sixth publication”) on the WeChat groups. The sixth publication conveyed imputations that Mr Xu:

(a)   is disreputable because he improperly brought a lawsuit against the FCA, causing it significant loss;

(b)   is unscrupulous and malicious in that he deliberately sought to disrupt the functioning of the FCA by incompetently leading applications for government multicultural funds and cultural festival activities in order to gain personal control over the FCA; and

(c)   is a scoundrel with severe personality issues because he has occupied various positions within the FCA, each of which was obtained by actions beneath the basic standards of human decency.

21On 29 March 2024 the defendant published a post (“the seventh publication”) to the WeChat groups which conveyed imputations that Mr Xu:

(a)   is wilfully acting illegally and invalidly by impersonating legitimate officeholders of the FCA;

(b)   is wilfully acting illegally and improperly by falsifying announcements of the FCA;

(c)   improperly invoked the Court’s process for the collateral purpose of seizing control of the board of the FCA, thereby jeopardising Australia-China relations;

(d)   should be expelled from the FCA because of the matters in subparagraphs

(e)   (a) to (c); and

(f)    alternatively to (d), should be considered for expulsion from the FCA on proper grounds because of the matters in subparagraphs (a) to (c).

22On 1 April 2024 the defendant published a post (“the eighth publication”) to the WeChat groups which conveyed imputations that Mr Xu:

(a)   is motivated by malice and will not cease involvement in the FCA until the organisation is torn apart and infamous by reason of his conduct;

(b)   is dangerous to the Chinese community because he conducts his affairs improperly such that other people become accomplices to illegal acts;

(c)   perjured himself when giving evidence to the police in relation to an incident at the Glen;

(d)   wrongfully interferes with the business of those who speak out against this conduct in relation to the FCA so as to improperly discourage freedom of expression; and

(e)   is not fit to hold any office within the FCA because of the matters in subparagraphs (a) to (d).

23On 1 April 2024 the defendant published a post (“the ninth publication”) to the WeChat groups which conveyed imputations that Mr Xu:

(a)   framed the executive chairman of the FCA by commissioning black-clad individuals to disrupt an important cultural event (being the Spring Festival Gala) so that he could gain control of the organisation; and

(b)   engages in cultural revolution-style tactics contrary to Australia’s democratic, free and equal society in that he framed the executive chairman of the FCA by commissioning black-clad individuals to disrupt an important cultural event (being the Spring Festival Gala) so that he could gain control of the organisation.

24The plaintiffs allege that all the imputations are defamatory.

Extent of Publication

25Mr Xu alleges that each of the WeChat groups contained more than 200 members. This allegation is taken to have been admitted.

26There has been no discovery provided in this matter and Mr Xu is not a member of the WeChat groups. The Court does not have the benefit of evidence of, for example, the number of visitors, page views, likes, shares and so on for the WeChat groups.

27Mr Xu says that he is aware that the posts published to the WeChat groups by Mr Xu have been reposted “much more” than ten times. Friends have shown him screen shots of the posts from different group chats on WeChat. He often sees the posts being reposted on social media by people he does not know.

28He has heard from people in China and overseas who had seen the posts.

29He submits that I can infer that there has been a substantial dissemination of the publications.

30Mr Hui Jiang, manager of the Chinese Service Centre of the FCA says he saw Mr Li’s publication as a member of the WeChat groups. He says that the publications were circulated by people within the Chinese community.

31Mr Anthony Lin, Treasurer of the FCA and a banker and mortgage broker, says he saw the publications at about the time Mr Li posted them on WeChat.

32Ms Ying Du, Chairwoman of the Supervisory Board of the FCA said she was contacted by at least 23 people, whom she identified, from various professional organisations including the White Horse Chamber of Commerce, the Australian- Chinese Tourism Association and others, asking her about Mr Li’s publications. She observed people at FCA events treating Mr Xu differently and appearing to avoid interacting with him after the publications.

33The second publication on the “Chilli Comment” Website attracted at least 32 comments from 25 different accounts.

Serious Harm

34The plaintiffs submit that they are not required to demonstrate serious harm, as serious harm is taken to be admitted on the pleadings by the entry of judgment in default.

35The facts alleged by the plaintiffs, not having been denied by the defendant, are taken as established and need not be verified by evidence.[3] The statement of claim must allege all the facts which entitle the plaintiffs to the relief claimed at law, and the relief claimed may be denied if all material facts are not pleaded.[4]

[3]Stewart v Coughlan (1885) 11 VLR 279.

[4]Macquarie Bank Ltd v Seagle (2005) 146 FCR 400 at 406-409; Electrolux Home Products Pty Ltd v Delap Impex KFT (2015) FCA 62.

36However a mere allegation of a fact in a pleading, taken to be admitted, may not be sufficient where the evidence relied on does not support the allegation. It is the duty of the Court to decide cases according to the truth and the Court can never be bound to accept as true any fact merely because it is admitted between the parties.[5]

[5]Gramophone Co Ltd v Magazine Holder Co (1911) 28 RPC 221 at 225.

3737 In a claim for damages, a pleaded material fact is taken to be admitted. So, for example, it is admitted that the publication caused serious harm to reputation. This admission does not mean that a pleading that the publication caused a specified financial loss required the Court to award that loss in damages, if the loss claimed does not accord with the evidence. “Courts will act on admissions of or agreements about matters of fact where there is no reason to doubt their correctness. But they are reluctant to do so where there is reason to question the correctness of the facts admitted or agreed”.[6]

[6]Damberg v Damberg & Ors (2001) 52 NSWLR 492 at 522; Gramophone Co Ltd v Magazine Holder Co (1911) 28 RPC 221.

Mr Xu

38Mr Xu pleaded that each of the nine publications caused serious harm to his reputation because:

(a)   the inherent tendency of the words is serious;

(b)   the WeChat groups contain many influential members of the Australian Chinese Community;

(c)   his professional reputation depends on his integrity;

(d)   the defamatory imputations have caused him to lose high value relationships; and

(e)   they are part of an ongoing campaign to publicly damage his reputation to cause him to lose his position in the FCA.

39The question of whether an admission that serious harm has been caused is sufficient for a Court to accept that serious harm has occurred has not yet, to my knowledge, been the subject of any higher court authority. I can see no reason why serious harm, as an element of the tort of defamation, stands in a different position to any other element of the tort. Provided that the elements are satisfactorily pleaded, they are taken to be admitted when default judgment is entered.

40I accept that Mr Xu has pleaded the material facts necessary to establish serious harm to his reputation and serious harm is taken to have been admitted.

41If I am incorrect, then I am satisfied on the evidence that Mr Xu has established that the publications caused serious harm to his reputation.

42Mr Xu says that he is the director of a business, Australia Gold Fortune Group Pty Ltd (“AGFG”) that is involved in property sales in Australia. AGFG has a 40% share of commissions earned by Real Core Property Group Pty Ltd (“Real Core”).

43Mr Xu says as a result of the publications he received an email dated 24 June 2024 from a client, R & F Real Estate which suspended the agency agreement between Real Core and R & F Real Estate. This email is exhibited to Mr Xu’s affidavit dated 9 December 2024. In this email, Zhi Lai, on behalf of R & F Property Australia says “Due to the attached noticed issued by Mr Mingjie Li the secretary of the Federation of Chinese Associations Victoria, pls be informed that your agency (“RCP Group”) agreement with us will be suspended as of today until further notice. We thank you for your service so far and we wish the dispute can be resolved at the earliest”.

44I accept the fact that R & F Real Estate suspended the agency agreement is, separate from any financial loss caused by that suspension, evidence of serious harm to Mr Xu’s reputation. I am satisfied that the reason for the suspension of the agreement was as a result of the publications, as they were identified by Mr Lai on behalf of R & F Real Estate as the cause.

The FCA

45The FCA says that the second publication caused serious harm to its reputation and that harm is demonstrated by the fact that it has lost government funding of $80,000 and has been hampered in its ability to operate in accordance with its purposes.

46The defendant is taken to have admitted that the FCA lost government funding. Where judgment is entered in default in a claim for damages, and damages are to be assessed, the material facts that are required to be pleaded must be sufficient to make out the relevant element of the tort. A loss of government funding because of the publications may be sufficient to establish the element of serious harm. An inability to operate in accordance with its purpose would be sufficient to establish serious harm.

47The FCA relied on evidence of Anthony Lin, the treasurer of the FCA. Mr Lin gave evidence by affidavit dated 9 December 2024 and in person.

48I deal with Mr Lin’s evidence in relation to the loss of government funding in my assessment of damages.

49Mr Lin says that since the publications only one membership fee has been paid. Membership fees are $110 per year per member. Ordinarily membership fees would be paid over the course of a year, and he would expect to see a few membership fees being paid each month. The FCA received no membership fees at all between April to October 2024. A single membership fee was paid in March 2024. This is highly unusual.

50There was no evidence as to why membership fees had not been paid. The plaintiff submitted that I can infer that the highly unusual reduction in membership fees is a result of the defamatory publication.

51I accept that to receive only one of 182 membership fees is highly unusual and I accept Mr Lin’s evidence that he would usually expect to see a few membership fees each month. Although the membership fees alone do not cover the operating expenses of the FCA, I accept that such a significant reduction in membership fees would hamper the FCA in carrying out its objectives.

52No alternative reason for the sudden and marked drop off in payment of membership fees was proposed by Mr Li. The allegation that the FCA has been hampered in its ability to carry out its objectives is taken to have been admitted, and is in any event made out. I am satisfied that this is sufficient to amount to serious harm.

Assessment of Damages

53There are well-established principles for assessing damages in defamation, such principles helpfully summarised by John Dixon J in Wilson v Bauer Media Pty Ltd[7] (“Wilson”) as follows:

(a)   damages should provide consolation for hurt feelings, damage to reputation and vindication of the plaintiff’s reputation;[8]

(b)   damages ought to reflect the high value which the law places upon reputation and, in particular, upon the reputation of those whose work depends upon their honesty, integrity and judgment;[9]

(c)   the gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the plaintiff. The award must be sufficient to convince a bystander of the baselessness of the charge;

(d)   there must be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded;

(e)   the extent of publication and the seriousness of the defamatory sting are pertinent considerations; and

(f)    aggravated damages are a form of compensatory damages and, where appropriate, form part of the general damages awarded to a successful plaintiff for non-economic loss, designed to reflect aggravation caused to a plaintiff’s hurt or injury by reason of some conduct of the defendant.

[7][2017] VSC 521 at paragraph [59].

[8]Belbin & Ors v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 at paragraph [242].

[9]Wilson, citing Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44.

54Counsel for the plaintiffs submitted the following:

(a)   Mr Xu works as a real estate agent in a tight knit Chinese community. His work depends on his integrity. Even unproven allegations against him were sufficient for a developer to suspend its agreement with him for the sale of apartments. This demonstrates the gravity of the libel.

(b)   An award of damages must be sufficient to convince the community of the baselessness of the charges made against him.

(c)   Mr Li is a person with some significant sway within the Chinese community. He was an elected office holder of the FCA. He is a person who is listened to within the community. He has a social media platform with over 500,000 readers. Although the publications the subject of this matter were not published on that platform, the extent of his readership demonstrates the regard with which he is held within the community. This increases the gravity of the libel because Mr Li is a person who others are likely to believe.

(d)   In addition to the impact the publications have had on his professional reputation, Mr Xu’s reputation within the Chinese community generally has been damaged. He has been contacted and approached by numerous people, including people unknown to him both online and in person, about the publications.

(e)   Mr Xu has suffered personal hurt and embarrassment as a result of the publications. Mr Xu said that he feels “like there is pressure in my chest. It is like I have a huge stone sitting there all the time.” He said he has difficulty sleeping because he worries about what Mr Li is saying to people. He often wakes up drenched in sweat. He lacks motivation, feels nervous and avoids meeting people or participating in social activities. He has withdrawn. He feels sad and often stays home alone. His doctor has recommended that he see a psychologist. He feels abandoned and as though he has no future.

(f)    Others have noticed the impact of the publications on Mr Xu. Mr Lin noticed his loss of concentration and motivation. Mr Jiang noted changes to his behaviour – he stopped communicating as much, spoke less frequently in meetings, appeared preoccupied and appeared downcast.

(g)   Mr Xu has suffered a loss of opportunity in relation to his capacity to earn commissions from the sale of properties. An appropriate award of compensation for this loss of opportunity might be 5-10% of the total potential loss sustained.

(h)   Mr Xu is entitled to an award of general damages that is relatively high. Having regard to other cases, damages in the amount of $75,000 to $100,000 would be appropriate.

55Mr Li also cross examined the witnesses and made submissions. Although I repeatedly explained to Mr Li that the only question before the court was the assessment of damages, most of Mr Li’s submissions went to issues that were not relevant to the assessment of damages.

56Mr Li sought to ventilate a number of concerns he had in relation to the FCA including the various processes by which officials were elected or appointed. He expressed his concern with the judicial system.

57Relevant to the assessment of damages, Mr Li submitted that:

(a)   the loss claimed by Mr Xu in relation to the suspension of the agency agreement was not supported by evidence;

(b)   Mr Xu had not provided any evidence to prove earnings in previous years, for example from tax returns;

(c)   any business loss sustained by Mr Xu was likely to be caused by multiple factors; and

(d)   Mr Xu had run for election in the FCA in 2020 unsuccessfully, suggesting that he was not highly regarded by other committee members.

Findings on damages

Mr Xu

58Mr Xu says his dealings with R & F Real Estate involved working as the contracting agent over a four year period to sell apartments in Box Hill to the Chinese market and Chinese community.

59Mr Xu alleges that he was responsible for 39 apartments in the stock list under his agency agreement with R & F Real Estate, with a total value of over $30,000,000.

60He claims Real Core was entitled to commission of 7% on the sales of those properties and that as the listing agent he would have been entitled to 40% of the total commission. In addition he claims he would have been entitled to an additional 30% commission had he been the agent to make the sale of the property.

61Mr Xu exhibited the Project Marketing Agreement between R & F Estate Pty Ltd and Real Core Property Group Pty Ltd. The operative provisions of that agreement appointed Real Core as a “non-exclusive selling agent of the Project for the Agency Period”. The Project was identified as “The Ropework including Millhouse and Live City” in Footscray, “Prospect” in Box Hill and “Brisbane 1” in Brisbane.

62The Agreement provided that the agent would be entitled to the Commission “where it is the effective cause of a sale of Property during the Agency Period”. The Agency Period is defined as 23 October 2023 until 31 December 2023 “or until terminated under clause 11, whichever occurs earlier”.

63The Agreement provides that the agent is entitled to commission on Live City and Brisbane One of 2% and on Millhouse and Prospect of 5%.

64In addition the Agreement provided an “incentive promotion” which entitled the Agent to a bonus of $1,500 per lot for 1-5 valid sales within the incentive period, $2000 per lot for 6-11 valid sales within the incentive period, and $3000 per lot for 12 or more valid sales within the incentive period. The incentive period was defined as 9 October 2023 to 31 December 2023

65A further incentive promotion entitled the agent to an additional 2% commission on all sales of Millhouse and Prospect during the “promotional period”. The promotional period was defined as 1 July 2023 to 30 December 2023.

66A further incentive promotion entitled the agent to an additional 3% commission on sales of Brisbane 1 and Ropeworks Live City for sales between 10 May 2023 and 31 December 2023.

67Mr Xu claims he lost all the commission he would have been entitled to under the Agreement with R & F Real Estate because it was suspended as a result of the publications.

68He says as the listing agent he would have been entitled to $982,224.51 in commissions and where he was the agent who made the sale, he would have received an additional 30% of total commissions of $2,455,561.28.

69He says he “confidently” could have sold five to ten apartments, but because of the damage to his reputation, his loss is in fact far greater than the loss of commission from R & F Real Estate because he was also selling other properties.

70Counsel for Mr Xu acknowledged that the financial loss suffered by Mr Xu amounted to a loss of opportunity that could not be precisely calculated.

71The Agency agreement appears, on the face of the document, to have been in place only from October to December 2023, prior to the publications. While the email from Mr Lai gives rise to an inference that the agreement was extended, the absence of any evidence of sales prior to the date of termination of the agreement, and the absence of evidence of any sales prior to the date of the publications, does not support Mr Xu’s claim that the termination of the agreement was the cause of his business loss.

72The amount Mr Xu alleges he would have been entitled to in commissions appears to be based on the incentive promotions which were in effect between October and December 2023.

73While I accept that general reputational damage can cause consequential harm that may sound in business losses, a plaintiff seeking compensation for such losses must provide credible and cogent evidence of such losses.

74Such evidence might include:

(a)   Documents to show Mr Xu’s prior sales performance for comparable properties;

(b)   Tax returns showing income prior to and post publication; and

(c)   Profit and loss statements from his business.

75There is no such documentation in evidence in this case. The termination of the Agency agreement supports Mr Xu’s claim that his reputation was harmed by the publications. It does not enable me to calculate any financial consequence of that harm.

76Mr Xu claimed, in his affidavit, that but for the publication he would have earned commission on the sale of 39 apartments. In oral evidence he said he was confident he would have sold five or ten of those apartments. He was unsure whether he would now be able to sell those apartments, and agreed that if the Agency agreement was reinstated, that might yet be possible. Given that Mr Xu was working with the developer over a four year period, it is notable that there is no evidence that he sold any of the 39 apartments, prior to the publications. I am not persuaded that the suspension of the agency agreement has resulted in the loss of any commission Mr Xu would otherwise have earned.

77I make no allowance for business loss.

78I accept that within the Chinese Australian community, there are at least some hundreds of people who have read the publications and some portion of those people who are likely to think less well of Mr Xu as a consequence.

79Given his role in the FCA and his mixed success in being elected to positions he ran for over the years, I infer there are those who support Mr Xu and those who do not support Mr Xu, regardless of the publications.

80However I accept that the publications, particularly from a person such as Mr Li, who operates a widely read platform and is a member of the community with some apparently significant support and following, are likely to carry more weight than similar publications from a person who does not have a high profile within the community.

81I accept that Mr Xu has been personally very hurt and upset by the publications and that this has had a significant impact on his life, including causing him to feel depressed, hopeless and to withdraw from socialising.

82The damages must bear a rational relationship to the harm done, a significant component of which in Mr Xu’s case is personal hurt and distress. The damages must also be sufficient to persuade an observer of the baselessness of the claims.

83I consider the amount of $50,000 to be appropriate compensation in the circumstances of this case.

The FCA

84The assessment of damages is made on the evidence provided in support of the material facts pleaded.

85Mr Lin said that in May 2023 the FCA applied for a grant for the Melbourne Lantern Festival. This grant was approved by Melbourne City Council in November 2023. The FCA expected to receive $80,000 from this grant by Melbourne City Council.

86In addition the FCA would have been eligible for a management fee of around $45,000 from the Federal Government.

87The FCA expected to fundraise around $245,000 from the community by way of sponsorships and donations, primarily from businesses, to fund the Melbourne Lantern Festival.

88Mr Lin said that, “after the defamatory incident” potential sponsors and donors were “not interested in this event anymore”. He said Mr Xu was given the responsibility of securing the sponsorships and donations but he “lost concentration and stopped all the works on this project”. This caused delay and an inability of the FCA to meet a funding deadline.

89The evidence of loss to the FCA in relation to the Melbourne Lantern Festival was difficult to understand. It appears that the Melbourne Lantern Festival was not held in 2024. Although the FCA lost the opportunity to obtain the $80,000 grant from the Melbourne City Council, it also did not incur the expenses associated with the Lantern Festival. It did not raise the additional required donations and sponsorships, however incurred no expenses.

90The actual loss incurred by the FCA was the loss of the $45,000 management fee it would have received from federal government funding which Mr Lin says it budgeted for to meet operational expenses.

91Doing the best I can, I understand that the management fee the FCA would have received was used to fund operations of the FCA more generally over the year. As this management fee was not received, the FCA has had difficulty funding its operations.

92Mr Lin says the festival did not go ahead because Mr Xu was unable to organise the sponsorship and donations required and because potential donors and sponsors had lost interest in the festival.

93There is no evidence about any of the potential donors or sponsors for the Melbourne Lantern Festival. Mr Lin has not articulated on what basis he asserts that the potential donors and sponsors had lost interest in the festival, nor how or why he can attribute this loss of interest to the defamatory publications.

94The FCA did not lose the government funding because of the publications, but because the festival did not go ahead. The FCA only pleads that the second publication was defamatory of it. It does not plead that the publications that were defamatory of Mr Xu were also defamatory of it by reason of Mr Xu’s association with the FCA. I cannot conclude that the publications were the cause of the loss of government funding, nor can I conclude that the festival did not go ahead because of the publications.

95The harm caused by the second publication has impacted the FCA’s capacity to carry out its objectives because of a reduction in membership fees.

96There is a lack of direct evidence that persons think less well of the FCA, and no evidence that any of the members who have failed to pay their membership fees have done so because of the publication. The fact that so few members have paid their fees since the publication gives rise to an inference that the reputation of the FCA has suffered. However although membership fees have not been paid, none of the members have withdrawn their membership, suggesting that the harm, while serious, may not be permanent.

97I consider that a modest award of damages to the FCA in the amount of $10,000 is appropriate.

98Orders:

(a)   The defendant is to pay the amount of $50,000 to the first plaintiff within 60 days of the date of this order.

(b)   The defendant is to pay the amount of $10,000 to the second plaintiff within 60 days of the date of this order.

(c)   Costs reserved.

99I will hear the parties on the question of costs and interest.