Vashisht Family Pty Ltd atf the Vashisht Family Trust v ADDS (NSW) Pty Ltd & Ors; ADDS (NSW) Pty Ltd & Ors v Vikas Vashisht & Anor [2021] NSWSC 1185

Supreme Court New South Wales

Medium Neutral Citation: Vashisht Family Pty Ltd atf the Vashisht Family Trust v ADDS (NSW) Pty Ltd & Ors; ADDS (NSW) Pty Ltd & Ors v Vikas Vashisht & Anor [2021] NSWSC 1185 Hearing dates: 12 August 2021 Date of orders: 17 September 2021 Decision date: 17 September 2021 Jurisdiction: Equity Before: Slattery J Decision: The question of granting access to the questioned communications by or on behalf of the plaintiffs with the joint solicitor should be determined under the common law relating to legal professional privilege. The questioned communications are all subject to litigation privilege and common law, which is not diminished by the plaintiff and the defendants retaining the joint solicitor. The defendants should pay the plaintiffs' cost of the Motion for access to the questioned communications. Catchwords: EVIDENCE – Privileges – Client Privilege – litigation privilege – common interest privilege – the defendants and their associated entities sold certain rural roadside service stations to the plaintiffs and their associated entities in a complex suite of transactions – the plaintiffs and the defendants engaged the same solicitor for the transaction ("the joint solicitor") – the plaintiffs sued the defendants for specific performance of one of the suite of agreements made between them, alternatively for damages for breach of contract and for misleading and deceptive conduct – the defendants cross-claim for misleading and deceptive conduct, for amounts said to be due as a result of the taking of accounts between the parties and for declarations that they have validly terminated a sale agreement for one of the service stations – from a time shortly before and then for about two months after the plaintiffs commenced these proceedings their solicitor communicated with the joint solicitor ("the questioned communications") – the defendants subpoenaed the questioned communications from the joint solicitor and now seek access to them – whether the question of granting access to the questioned communications by or on behalf of the plaintiffs with the joint solicitor should be determined under the common law relating to legal professional privilege or by the application of client privilege under Evidence Act 1995, s119 – whether the questioned documents attract legal professional privilege or client privilege – whether any common law legal professional litigation privilege has been waived, or whether any client privilege that would otherwise arise under Evidence Act 1995 s 119 has been lost, by reason of the plaintiffs and the defendants retaining the joint solicitor. Legislation Cited: Evidence Act 1995, ss 119, 124 and 131A Uniform Civil Procedure Rules 2005, r 1.9 Cases Cited: Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151 CDPP v Kinghorn (2020) 102 NSWLR 72 Farrow Mortgage Services Pty Ltd (In Liq) v Webb (1996) 39 NSWLR 601 Grant v Downs (1976) 135 CLR 674 Laurenson v Wellington City Corporation [1927] NZLR 510 Mitsubishi Electric Australia Pty Ltd v Workcover Authority (Vic) (2002) 4 VR 332 New South Wales v Jackson [2007] NSWCA 279 Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 Re Holloway (1887) 12 PD 167Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526 State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 Trade Practices Commission v Sterling (1979) 36 FLR 244 Wheeler v Le Marchant (1881) 17 Ch D 675 Texts Cited: J.D. Heydon, Cross on Evidence, Butterworths, Sydney, 1996 Category: Procedural rulings Parties: Plaintiff/Second cross-defendant: Vashisht Family Pty Ltd atf the Vashisht Family Trust