Defamation law requires that the offending statements are published, refer to the plaintiff, and are defamatory, with plaintiffs bearing the burden of proof.

Introduction

[1] This is a writ action by the plaintiff development company against the two defendants, who are purchasers of units in a condominium complex for libellous remarks allegedly made by them in postings of messages against the plaintiff in a WhatsApp chat group. The defendants counterclaimed against the plaintiff for abuse of process and infringement of their right of freedom of expression.

[2] At the conclusion of trial which was conducted by way of a remote communication technology via Zoom I found that the plaintiff has succeeded in proving its case of defamation against both defendants, and therefore allowed the claim, but dismissed the counterclaim, and highlighted the main grounds for my decisions. This judgment contains the full reasons for the same.

Key Background Facts

[3] The salient facts of the case, consistent with the pleadings of the plaintiff are as follows. A licensed developer of high rise condominiums, the plaintiff is, relevant for present purposes, the developer for a condominium project known as Aurora Residence @ Lake Side City in Puchong, Selangor. The defendants are two purchasers and registered proprietors of units in the condominium residence at Aurora.

[4] A number of purchasers of Aurora, including the two defendants, were participants of a WhatsApp group which is known as "Aurora Residence 2.0". This was on 5 March 2018 renamed as "Aurora Class Action". The conversations among participants post-delivery of vacant possession of the units in November 2017 included those concerning their dissatisfaction with the developer's alleged non-adherence to its contractual responsibilities under the sale and purchase agreements. This escalated into the purchasers, some 208 of them filing a civil suit - a class action - in the Shah Alam High Court against the plaintiff for breach of contract in June 2018 ("the 2018 Class Action").

[5] However, parties to the 2018 Class Action - the plaintiff and the purchasers named as plaintiffs therein - agreed to enter into a consent judgment on 9 March 2020.

[6] The case of the plaintiff herein is that the defendants had in the course of the year 2018 published, or caused to be published defamatory statements to third parties via the "Aurora Class Action" WhatsApp group.

The Statements Alleged To Be Defamatory

[7] The first statement attributed to the 1st defendant, sent to Aurora Residence 2.0 on 5 March 2018 at 10.07am is as follows:

"....To enlighten you on the historical Modus operandi of Masteron (the plaintiff) after we bought this development our team discovered that they do exactly the same which is to give you a substandard product, place their own related company as a management and drain the developments of funds....Elvin is living in Koi Tropika (the plaintiff's business) & to date, the residents have not gotten their strata title back! More than ten years! And look at how badly the place is run!

The monthly maintenance fees for Aurora is above market rate per square foot & yet we are made to pay exorbitant sums for using the facilities & held ransomed by the high renovation & moving in deposits!

All this while in all their past projects (the plaintiff's business), the residents are being screwed and left to bleed & die and no one has bunched together to take them on... So you can understand why they're so arrogant and can get away with this each & every time...."

("the 1st defendant's First Statement")

[8] The second statement said to have been made by the 1st defendant, sent by him to Aurora Residence 2.0 on 22 March 2018 at 10.24 to 10.26am is as follows:

"This is only part of the battle.. I do not want to end up like o