Dianne Twigg v Maxwell James Twigg (Privilege ruling no 2) [2021] NSWSC 814

Supreme Court New South Wales

Medium Neutral Citation: Dianne Twigg v Maxwell James Twigg (Privilege ruling no 2) [2021] NSWSC 814 Hearing dates: 18, 22, and 28 June 2021 Decision date: 05 July 2021 Jurisdiction: Equity - Commercial List Before: Hammerschlag J Decision: Rulings made – see Schedule Catchwords: PRIVILEGE – Evidence Act 1995 (NSW) ss 117, 118, 119 – rulings on claims for privilege – where there is in force a declaration by the Court that the first defendant holds assets on constructive trust for the plaintiffs – prior to the declaration the first defendant retained an accounting firm to manage the assets and the retainer is still on foot – where the first defendant, to obtain a stay of other orders made by the Court, gave an undertaking to the Court of Appeal to instruct the accounting firm to prepare documentation relating to the value, status and movements of the assets so as to distinguish between the assets which were found to be held on trust and the remaining assets – whether communications made between the first defendant, or on his behalf by his lawyers, and the accounting firm, or on their behalf by their lawyers, in relation to the formulation of the orders by the Court concerning the constructive trust, compliance with them and compliance with the Undertaking, are privileged – HELD – they are not privileged either because the parties to the communications were not under an express or implied obligation not to disclose their contents or because the communications were not made for the dominant purpose of the lawyers providing legal advice to the defendants or for the dominant purpose of the defendants being provided with professional legal services in relation to the proceedings Legislation Cited: Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Arnhem Land Aboriginal Land Trust v Northern Territory of Australia (2007) 157 FCR 255 Bunnings Forest Products Pty Ltd v Bullen (1994) 54 FCR 342 Dianne Twigg v Maxwell James Twigg (Privilege ruling) [2021] NSWSC 595 John Anthony Jeans v John Richard Bruce & Ors [2004] NSWSC 758 Michael Wilson and Partners Limited v Robert Colin Nicholls & Ors [2009] NSWSC 1377 Spellson v George (1987) 11 NSWLR 300 Talifero v Asbestos Injuries Compensation Fund Limited as Trustee for the Asbestos Injuries Compensation Fund (No 2) [2018] NSWCA 323 Twigg v Twigg (No 6); Lambert v Twigg Investments Pty Ltd (No 5) [2020] NSWSC 1856 Category: Procedural rulings Parties: Diane Twigg - First Plaintiff/First Cross Defendant Ipswich Landfill Pty Ltd atf Ipswich Landfill Trust - Second Plaintiff/Second Cross Defendant Brooklyn Landfill & Waste Recycling Pty Ltd - Third Plaintiff/Third Cross Defendant Twigg Plant Hire Pty Ltd - Fourth Plaintiff/Fourth Cross Defendant Maxwell James Twigg - First Defendant/Fifth Cross Defendant Twigg Landfill Pty Ltd - Second Defendant/Sixth Cross Defendant Byron Bay Beach Hotel Properties Pty Ltd - Third Defendant/Seventh Cross Defendant Twigg Consulting Pty Ltd - Fourth Defendant/Eighth Cross Defendant B Bay H Pty Ltd - Fifth Defendant/Ninth Cross Defendant Twigg Investments Pty Ltd - Sixth Defendant/Tenth Cross Defendant Maly Holdings Pty Ltd - Seventh Defendant/Eleventh Cross Defendant Twigg Property Development Pty Ltd - Eighth Defendant/Twelfth Cross Defendant Twigg Motor Sport Pty Ltd - Ninth Defendant/Thirteenth Cross Defendant Vision Motor Sport Pty Ltd - Tenth Defendant/Fourteenth Cross Defendant Twigg Motor Racing Pty Ltd - Eleventh Defendant/Fifteenth Cross Defendant Surf Street Holdings Pty Ltd - Twelfth Defendant/Sixteenth Cross Defendant W & E Twigg Pty Ltd - Thirteenth Defendant/Seventeenth Cross Defendant Frances Lambert - Fourteenth Defendant/Cross-Claimant Twigg Co Pty Limited - Fifteenth Defendant Representation: Counsel: