Aggravated Damages in Queensland: A Strategic Guide for Developers Facing Defamation

Q: Can our development company sue for defamation if we can't prove a specific dollar amount of loss yet?

Yes, potentially. The Defamation Act 2005 (Qld) requires proof that the publication 'has caused, or is likely to cause, serious financial loss.' The phrase 'is likely to cause' means you do not necessarily need to have realised the loss yet. You can rely on evidence from financial experts, real estate agents, and market analysts to build a compelling case that serious financial loss is an inevitable consequence of the defamatory statements, even if the full impact hasn't yet appeared on your balance sheet.

John Merlo
Dec 26, 2025
16 min read

In the high-stakes world of Queensland property development, a reputation built over years can be shattered by a single viral social media post, a disgruntled online review, or a targeted smear campaign.

For developers, this isn't just about hurt feelings; it's a direct threat to commercial viability, capable of derailing multi-million dollar projects, spooking investors, and evaporating pre-sales. While Queensland's defamation laws offer a path to compensation, many developers are unaware that a standard payout is capped, often falling short of the true financial damage.

However, a powerful legal mechanism exists to address this limitation: demonstrating that the defendant's conduct aggravated the harm. Under the 2021 reforms, Queensland courts can award "aggravated damages" separately from and in addition to the capped general damages when the defendant's behaviour—such as refusing to apologize, republishing after being put on notice, or making gratuitously offensive statements—has worsened the injury. This becomes a crucial tool for developers seeking not just compensation, but complete vindication.

Key Takeaways

Only Small Companies Can Sue: For a property development company to bring a defamation claim in Queensland, it must be an "excluded corporation" (fewer than 10 employees, not associated with a larger entity, or a not-for-profit). If it qualifies, it must then prove the defamatory statement caused, or is likely to cause, "serious financial loss."
A Cap on General Damages Exists: Queensland law imposes a statutory cap on damages for non-economic loss, currently set at $500,000. This figure alone may not cover the full reputational damage to a multi-million dollar project.
Aggravated Damages Are Awarded Separately: While general damages for non-economic loss are capped at $500,000, courts can award aggravated damages separately when the defendant's conduct (such as a refusal to apologize, malicious republication, or insulting responses) has aggravated the harm. These additional damages are compensatory, not punitive, and are assessed independently of the cap.
New Court Powers Can Force Takedowns: New 2025 legislative reforms (passed December 2025) grant Queensland Courts new powers to order the removal of defamatory online content, even from platforms not directly involved in the lawsuit.

The Financial Reality of Defamation for Developers in Queensland

For any property developer in Queensland, understanding the financial landscape of defamation law QLD is critical. An attack on your company's reputation is not a minor inconvenience; it's a direct assault on your balance sheet and future commercial viability. Before a developer can even contemplate damages, they must first overcome a significant legal hurdle and then contend with a statutory limit on what they can recover for pure reputational harm.

Understanding the "Serious Financial Loss" Threshold

Not all property development companies can sue for defamation. Under Section 9 of the Defamation Act 2005 (Qld), only an "excluded corporation" has a cause of action for defamation. An excluded corporation is generally one with fewer than 10 employees that is not associated with another corporation, or one that is a not-for-profit entity.

If a company qualifies as an excluded corporation, it must then prove under Section 10A that the defamatory publication has caused, or is likely to cause, serious financial loss to its reputation. Larger property development companies with 10 or more employees cannot bring defamation claims at all—they must pursue alternative legal remedies such as injurious falsehood or misleading and deceptive conduct claims.

For those companies that can sue (excluded corporations), this is a stringent test. It requires concrete evidence linking the defamatory statements to quantifiable economic damage.

This could include:

Loss of Sales: Demonstrating a direct drop in apartment pre-sales or land purchases following the publication.
Withdrawn Investment: Evidence that a potential joint venture partner or financier pulled out of a deal, citing the reputational concerns raised by the defamatory material.
Difficulty Securing Finance: Proof that lenders have become hesitant or have imposed stricter conditions due to the perceived risk associated with the company's damaged reputation.
Increased Marketing Costs: The need to spend significant funds on a public relations campaign to counteract the negative publicity.

Without this evidence, a developer's case will fail before it even begins.

What is the Statutory Cap on Damages?

If a developer successfully proves serious financial loss, the next consideration is the value of the claim. Queensland law places a ceiling, or a statutory damages cap, on the amount of "general damages" that can be awarded for non-economic loss. This figure, which is indexed annually, is currently set at $500,000.

General damages are intended to compensate for the intangible harm that flows from defamation, such as:

Damage to the company's public standing and goodwill.
The distress and embarrassment caused to the directors and key personnel.
The personal hurt and vindication sought for the public attack.

It is crucial to understand that this is a cap on general damages only. It is not the absolute maximum a court can award. Other damages, such as proven economic loss (special damages), are not subject to this cap. However, for the pure reputational harm, this ceiling is a significant factor.

Why Standard Damages Often Fall Short for Reputational Harm

The statutory cap, while substantial, can be wholly insufficient to truly compensate a developer for widespread reputational damage.

Consider a scenario where a malicious online campaign targets a new high-rise development in Brisbane or the Gold Coast. False claims about structural integrity, the use of non-compliant materials, or dodgy dealings can spread rapidly, poisoning the well of potential buyers. The resulting loss in pre-sales and the project's overall valuation can easily run into the millions, far exceeding the capped amount for general damages.

This is where the standard legal framework can feel inadequate. The cap on general damages doesn't automatically account for the aggravating conduct of the defamer. However, the 2021 amendments to Queensland's defamation laws introduced an important clarification: aggravated damages are to be awarded separately from the capped general damages.

For developers facing a deliberate and vindictive attack, the concept of aggravated damages—awarded in addition to the capped amount—becomes the critical legal tool for achieving a fair outcome and protecting your commercial interests.

Unlocking Aggravated Damages: The Key to Exceeding the Cap

While the statutory cap limits general damages to $500,000, this is not the end of the compensation story. Under Section 35(2A) and (2B) of the Defamation Act (as amended in 2021), courts have the power to award aggravated damages separately from—and in addition to—the capped general damages. Aggravated damages are designed to compensate the plaintiff for the heightened injury, insult, and humiliation caused by the defendant's aggravating conduct.

For developers, understanding how to demonstrate this aggravating conduct is the most critical element in transforming a standard defamation claim into one that truly reflects the harm suffered.

Defining 'Aggravating Conduct' in the Eyes of the Queensland Courts

Under Section 36 of the Defamation Act, courts are generally required to disregard the defendant's malice or state of mind when assessing damages, except to the extent that it affects the actual harm suffered by the plaintiff.

What matters for aggravated damages is not the defendant's subjective motive at the time of initial publication, but rather the objective conduct that aggravated the harm. This includes improper behaviour before, during, or after publication that increased the plaintiff's injury.

Examples of aggravating conduct that Queensland courts may recognize include:

Republication After Notice: The defendant was informed the statements were false but deliberately republished or amplified them on multiple platforms.
Offensive or Insulting Manner of Publication: The defamatory material was published in a gratuitously offensive, humiliating, or vindictive manner designed to maximise harm.
Refusal to Retract or Apologise: The defendant was provided with clear, irrefutable evidence that their statement was false but refused to retract it or apologize, demonstrating a contemptuous disregard for the plaintiff's reputation.
Conduct During Litigation: The defendant continues to make defamatory statements during the legal proceedings or responds to legal notices with further attacks.

Establishing this aggravating conduct—rather than subjective malice—is the foundation upon which a claim for aggravated damages is built.

Gathering the Evidence: What Proves Aggravating Conduct?

Proving aggravating conduct is more straightforward than proving subjective intent, as it focuses on observable behaviour. The strategy begins the moment the defamatory statement is discovered. First, it is essential to preserve all communications from the defendant. This includes emails, text messages, social media comments, direct messages, and even voicemails. These communications should be analysed for their language and timing. Does the language show a personal vendetta? Is there a pattern of obsessive or harassing behaviour?

Next, the timing of the publication can be crucial. Did the defamatory posts appear immediately after a commercial dispute, such as the termination of a subcontract or a refusal to grant a variation? This timing, combined with subsequent conduct, can demonstrate that the publication was made in an improper context.

Finally, witness testimony is invaluable. Third parties, such as former employees or other contractors, may have heard the defendant express their malicious intent or their plan to "bring the developer down." This external corroboration can be incredibly persuasive in court.

Infographic compares standard defamation claims to those with aggravating conduct, highlighting statutory caps and separate damages.

How a Defendant's Conduct Can Inflate Your Claim

A defendant's behaviour after the defamatory material is published is often the most compelling evidence of aggravating conduct. Their reaction to being called out can significantly strengthen a claim for aggravated damages.

When a developer issues a formal Concerns Notice, the defendant's response is put under a microscope. A reasonable person, upon learning they have published false information that is causing harm, would typically investigate and, if appropriate, apologise and retract. However, a defendant engaged in aggravating conduct often does the opposite.

Their conduct may include:

An Aggressive or Insulting Response: Replying to a legal notice with insults, threats, or further defamatory statements.
Doubling Down: Re-publishing the defamatory material on multiple platforms or creating new posts to amplify the original claims.
Refusal to Apologise: An outright refusal to offer any form of apology, even when faced with overwhelming evidence of their error.

This type of defendant conduct demonstrates a contemptuous disregard for the developer's reputation and the harm being caused. Under Section 35(2A), a court will view this behaviour as justifying a separate award of aggravated damages in addition to the general damages capped at $500,000. Successfully navigating this phase is a key part of resolving commercial disputes and protecting the company's standing.

Case Study Snapshot: When Have the Courts Awarded Aggravated Damages?

Consider a brief, anonymised scenario. A developer on the Sunshine Coast completes a small residential project. A disgruntled electrical subcontractor, whose contract was terminated for poor performance, begins a campaign on a local community Facebook page. He posts photos alleging "defective and dangerous wiring," claiming the developer cuts corners and puts lives at risk. The posts gain traction, and potential buyers for the final units pull out.

The developer's legal team issues a Concerns Notice. The subcontractor responds by re-posting the claims with the caption, "Trying to silence the truth!" In court, the developer's lawyer presents two key pieces of evidence.

First, the official Certificate of Inspection from the licensed electrical inspector, which signed off on all wiring as compliant and safe before the subcontractor's posts.

Second, an email from the subcontractor to a supplier, discovered during pre-trial disclosure, stating his intention to "make them pay" for his termination.

The court found that the subcontractor's conduct—knowing his claims were false and then deliberately amplifying them after being put on notice—aggravated the harm to the developer's reputation. His defiant refusal to retract, combined with his republication after receiving the Concerns Notice, led the court to award significant aggravated damages separately from and in addition to the capped general damages of $500,000.

Building Your Case: A Strategic Framework for Demonstrating Aggravating Conduct

Successfully demonstrating aggravating conduct and securing aggravated damages requires more than just a reaction; it demands a proactive and meticulous defamation strategy from the outset.

For developers, this involves a series of calculated steps designed to preserve evidence, quantify damages, and leverage legal tools to both build a compelling case and mitigate ongoing harm. This framework transforms a developer from a victim of defamation into the architect of their own legal vindication.

The Crucial First Step: The Concerns Notice

Before any court proceedings can begin, the law mandates a crucial first step: issuing a formal Concerns Notice to the publisher of the defamatory material. This document is far more than a simple letter of complaint; it is a powerful strategic tool with a dual purpose.

Firstly, it serves as the formal notification required under the Defamation Act, putting the publisher on notice of the specific statements considered defamatory, the harm they have caused, and the remedies sought (such as a retraction, apology, and compensation).

Secondly, and more strategically, a carefully drafted Concerns Notice is designed to elicit a response that can become powerful evidence of aggravating conduct. The notice should be firm, precise, and backed by preliminary evidence where possible. How the defendant responds is telling. A dismissive or aggressive reply, a refusal to engage, or a response that contains further falsehoods can be presented to a court as proof of conduct that aggravated the harm. It demonstrates that the defendant, when given a chance to rectify their error, chose instead to perpetuate the harm, strengthening the case for aggravated damages.

Documenting Financial Loss from Day One

Parallel to the legal process of issuing a Concerns Notice, a developer must immediately begin the practical process of documenting financial loss. This cannot be an afterthought; it must be a meticulous, ongoing effort to draw a clear, causal link between the defamatory publication and the company's bottom line.

The process should be multi-faceted. It starts with internal tracking: log every phone call from a potential buyer who mentions the online claims before withdrawing their interest. Instruct your sales team to keep detailed notes of conversations where buyer sentiment has clearly been affected by the negative publicity.

Next, gather external evidence. Obtain formal statements from your real estate agents detailing a drop-off in enquiries or difficulty in closing sales since the publication. Finally, engage your accountant or a forensic financial advisor. They can prepare expert reports that analyse sales data, project valuations, and cash flow, contrasting the period before the defamation with the period after.

This professional analysis can provide the court with the hard data needed to quantify the "serious financial loss" and substantiate the full extent of the damage, a process just as vital as securing your payment rights in construction.

Leveraging Digital Forensics to Document Aggravating Conduct

In today's digital landscape, documenting aggravating conduct often requires digging deeper than what is visible on the screen. Screenshots are a starting point, but a determined defamer may use anonymous accounts, delete posts, or cover their tracks. This is where digital forensics becomes an indispensable part of your legal arsenal.

Digital forensic experts can provide evidence that is otherwise inaccessible. They can analyse metadata to help establish the timing and origin of posts, potentially trace the real-world identity behind anonymous social media profiles, and recover deleted comments or messages that might contain a "smoking gun" admission of intent.

This level of investigation can uncover a pattern of obsessive behaviour or a coordinated campaign, transforming a series of seemingly isolated posts into a clear narrative of aggravating conduct that worsened the reputational harm. Presenting this kind of technical evidence can be pivotal in convincing a court that the defendant's conduct aggravated the harm through persistent, deliberate attacks, justifying a separate award of aggravated damages in addition to the capped general damages. This is a core component of modern strategic defamation litigation counsel.

Navigating the New Powers for Content Removal Under the 2025 Bill

A significant development in content removal and defamation law is the recent passage of new legislative amendments in December 2025. These changes provide developers with a powerful new tool to staunch the bleeding while a defamation case proceeds.

Historically, getting a platform like Google, Facebook, or a review site to remove defamatory content could be a frustrating and often fruitless exercise. The new laws, however, grant Queensland courts a specific power to issue "takedown orders" directly to digital intermediaries. This means a developer can apply to the court for an order compelling a platform to remove the harmful material, even if that platform is not a primary defendant in the lawsuit.

This is a game-changer. It allows for swift action to mitigate ongoing financial harm by having the defamatory content de-indexed or deleted, preventing it from continuing to poison the well of potential buyers and investors. This procedural update is a crucial addition to the landscape of Queensland's building and construction law and provides a vital strategic option for developers under attack.

Common Pitfalls and Strategic Considerations for Developers

While the prospect of securing aggravated damages is a powerful motivator, launching a defamation claim is a significant undertaking in commercial litigation. Developers must proceed with a clear understanding of the potential defences, the commercial realities of a lawsuit, and the evolving role of online platforms. A winning strategy is not just about being aggressive; it's about being prepared for the complexities of the legal battlefield.

The Risk of an Unsuccessful Claim: Defences to Defamation

It is a critical error to assume that every damaging statement is legally defamatory. A defendant has several powerful defamation defences they can raise, and a developer's legal team must be prepared to counter them.

The most common defences include:

Justification (Truth): If the defendant can prove that the substance of their claims is true, it is a complete defence. A developer must be certain that the allegations—for instance, about building defects or delays—are demonstrably false before initiating a claim.
Honest Opinion: This defence protects expressions of opinion, rather than statements of fact, on a matter of public interest. A defendant might argue that their negative online review stating "the build quality feels cheap" is a subjective honest opinion, not a factual claim of non-compliance with building standards.
Qualified Privilege: This defence applies when a person has a legal, social, or moral duty to communicate information to someone who has a corresponding interest in receiving it. For example, statements made in a formal complaint to the QBCC about a builder's conduct may be protected by qualified privilege.

Understanding these defences is crucial for assessing the strength of a potential claim. For more detailed analysis of legal frameworks, see our publications.

Warning: When is Litigation Commercially Viable?

Litigation should always be a last resort, not a first response. Before commencing proceedings in the District or Supreme Court of Queensland, a developer must first confirm that it qualifies as an "excluded corporation" (fewer than 10 employees and not associated with a larger entity, or a not-for-profit). If it does not qualify, defamation proceedings are not available, and alternative causes of action (such as injurious falsehood or misleading conduct claims) must be considered. If the company does qualify, it must then conduct a rigorous cost-benefit analysis.

A defamation lawsuit is a resource-intensive process, demanding significant legal fees, executive time, and company focus that could be directed elsewhere.

The primary commercial goal should be to stop the financial harm. Sometimes, a swift and decisive Concerns Notice that results in a retraction and apology is a far better commercial outcome than a two-year court battle, even if the potential payout is high. The new takedown powers under the 2025 amendments also offer a more cost-effective way to mitigate damage.

The strategic question is not just "Can we win?" but "Is winning in court the most commercially prudent way to solve this problem?" This is a vital consideration in all legal matters, from disputes over terminating contracts to complex cases heard by QCAT.

The Role of Digital Intermediaries After the 2025 Amendments

The 2025 amendments (now enacted) introduce new "safe harbour" provisions for digital intermediaries like social media platforms and search engines. These provisions offer platforms a defence against being held liable as a publisher if they follow a specific complaints-handling process. This creates a new dynamic for developers.

While the court's new power to issue takedown orders is a significant advantage, the safe harbour provisions mean that a developer's legal strategy must now be two-pronged.

The first prong targets the original publisher—the individual or group responsible for creating the content—to seek damages for the harm caused.

The second prong involves engaging directly with the platform's new complaints process or, if necessary, seeking a court order to have the content removed. This dual approach, which acknowledges the distinct roles and liabilities of the creator and the platform, reflects the modern, sophisticated approach of Merlo Law's expertise.

Conclusion: Beyond Compensation to Vindication

For Queensland property developers, defamation is a direct and serious threat to commercial viability. A malicious online attack can jeopardise funding, cripple sales, and destroy years of goodwill in a matter of days. While the statutory cap on general damages provides a baseline for compensation (currently $500,000), it often fails to address the full scope of harm, particularly when the defendant's conduct has aggravated the injury.

The strategic pursuit of aggravated damages—awarded separately from and in addition to the capped general damages—is the key legal mechanism to secure a financial outcome that truly reflects the harm suffered. This path requires more than just proving a statement was false; it demands a meticulous case built on clear evidence of the defendant's aggravating conduct before, during, or after publication.

However, developers must first understand a critical threshold: only "excluded corporations" (generally those with fewer than 10 employees) can bring defamation claims in Queensland. Larger property development companies must pursue alternative legal strategies. For those that qualify, the journey from the initial, carefully worded Concerns Notice to the potential use of digital forensics and the new powers for content removal must be deliberate and purposeful. This is not merely about recovering money; it is about vindicating a developer's reputation in the public square.

Navigating the complexities of Queensland's defamation law framework and the court process requires expert legal guidance. If your development project and professional reputation are under attack, taking decisive and strategic action is paramount to protecting your investment and your name.

FAQs

Can our development company sue for defamation if we can't prove a specific dollar amount of loss yet?

Yes, potentially. The Defamation Act 2005 (Qld) requires proof that the publication "has caused, or is likely to cause, serious financial loss." The phrase "is likely to cause" means you do not necessarily need to have realised the loss yet. You can rely on evidence from financial experts, real estate agents, and market analysts to build a compelling case that serious financial loss is an inevitable consequence of the defamatory statements, even if the full impact hasn't yet appeared on your balance sheet.

Our company has 15 employees. Can we still sue for defamation?

No. Under Section 9 of the Defamation Act 2005 (Qld), only "excluded corporations" can bring defamation claims. A company with 10 or more employees that is not a not-for-profit entity is not an excluded corporation and has no cause of action for defamation in Queensland.

However, you may have alternative legal remedies, such as claims for injurious falsehood (intentional falsehood causing economic loss) or misleading and deceptive conduct under the Australian Consumer Law. These alternatives do not have the same restrictions on corporate plaintiffs and should be explored with your legal advisor.

What is the difference between general damages, aggravated damages, and special damages?

General Damages compensate for the non-economic harm to your reputation, distress, and hurt feelings, and are subject to the statutory cap (currently $500,000). Aggravated Damages are awarded separately from general damages when the defendant's aggravating conduct (such as refusing to apologize, republishing after notice, or making gratuitously offensive statements) has increased the hurt and injury to the plaintiff.

Following the 2021 amendments, these are assessed independently of the cap and awarded as a separate sum. Special Damages are compensation for specific, quantifiable economic losses that you can prove with invoices, contracts, and financial records, such as lost sales or the cost of a PR campaign. These are also not subject to the cap.

How long do we have to start a defamation claim in Queensland?

The limitation period for defamation is very strict. You must commence court proceedings within one year from the date the defamatory material was published. While the court can extend this period up to three years in limited circumstances, it is a difficult threshold to meet. It is crucial to seek legal advice as soon as you become aware of the defamatory publication.

What if the person defaming our company is anonymous or using a fake profile online?

Anonymity is not a complete shield. Your lawyer can seek preliminary discovery orders from the court, compelling the social media platform, internet service provider, or website host to disclose information that could identify the user, such as their IP address, name, and email details. This is often the first step in unmasking an anonymous defamer so that legal action can be taken against them directly.

Is it better to engage in a public rebuttal or to send a legal notice first?

In almost all cases, it is strategically better to seek legal advice and issue a formal Concerns Notice before engaging in a public back-and-forth. A public rebuttal can sometimes escalate the situation, create more evidence that can be used against you, and muddy the legal waters. A formal legal notice is a controlled, strategic first step that preserves your legal rights and often elicits a response that can be used as evidence of aggravating conduct.

This guide is for informational purposes only and does not constitute legal advice. For advice tailored to your specific circumstances, please contact Merlo Law