23 May 2018
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High Court overturns ruling that SMU law don had defamed trio at condo's AGM

Straits Times
14 May 2018
Selina Lum

A Singapore Management University law professor, who was ordered last year to pay damages of $120,000 for defaming three members of the management council of Duchess Residences, has won his appeal to the High Court to quash the lower court decision.

The defamation suit arose when Prof Gao Shuchao alleged at the 2016 annual general meeting (AGM) that the council had "concealed" the fact that it received a sum of money from a court case against the developer of the condominium in the prime Bukit Timah area.

The trio who sued him are Mr Tan Kok Quan, a Senior Counsel who has been a director of several banks and public-listed companies; Mr Kuah Kok Kim, the chairman of a public-listed company; and Mr Gn Hiang Meng, an independent director of several public-listed boards.

At the time, Mr Tan was the chairman, Mr Kuah the treasurer and Mr Gn the secretary of the management council.

Last year, a district court found that Prof Gao's words were defamatory and rejected his defences of qualified privilege, fair comment and justification. He appealed.

On Friday (May 11), the High Court found that the defence of qualified privilege applied to Prof Gao, as his statements were not driven by malice.

Prof Gao may have been "careless, impulsive or irrational" in believing that the council was deliberately concealing the fact that the money was received, but it cannot be said that he was reckless in his belief that the defamatory words were true, said Justice See Kee Oon.

The case has roots in events in late 2014, when the condominium's Management Corporation Strata Title (MCST) took legal action against the developer to recover arrears of contributions to the management and sinking funds for 13 units.

To alleviate the impending cash flow problems, the MCST imposed a one-time special levy on all owners, to be paid in three instalments.

In July 2015, judgment was granted in favour of the MCST. Three months later, the MCST received a payment of $261,055.

After discussions, the council eventually decided to withold disclosure that it received the sum, for various reasons.

Meanwhile, Prof Gao, who felt the levy was "invalid", did not pay the first two instalments. The council sued him in December 2015 to claim the $2,050.73.

On Feb 1, 2016, the council disclosed receipt of the judgment sum and indicated that at the upcoming AGM, it will propose to revoke the final instalment due in March.

At the AGM on March 4, 2016, Prof Gao pressed the council about the late disclosure, saying there was either a deliberate concealment or a misrepresentation.

After hearing an explanation from a council member, he withdrew his use of the words "misrepresentation" and "concealed", but refused to apologise.

The law don's "antagonistic stance" was seen as evidence of malice by the district judge.

At his appeal, his lawyer, Mr Lee Ee Yang from Covenant Chambers, argued that malice cannot be inferred from Prof Gao's failure to verify the facts before speaking at the AGM and his refusal to apologise.

Justice See agreed that Prof Gao was not malicious, noting that he was "amenable" to retracting his statement after an explanation was offered.

"His course of conduct viewed in entire context showed that his objective was to obtain redress and explanations for the perceived wrongdoings of the MCST," said the judge.

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

Gao Shuchao v Tan Kok Quan and others [2018] SGHC 115