FX Group Holdings Pty Ltd v Perpetual Trustee Company Limited as trustee of the CPEC 8 Trust A (formerly the CHAMP IV Trust A) [2023] NSWSC 681

Supreme Court New South Wales

Medium Neutral Citation: FX Group Holdings Pty Ltd v Perpetual Trustee Company Limited as trustee of the CPEC 8 Trust A (formerly the CHAMP IV Trust A) [2023] NSWSC 681 Hearing dates: 15 June 2023 Date of orders: 21 June 2023 Decision date: 21 June 2023 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: First and second cross-defendants' Notice of Motion of 30 May 2023 is dismissed with costs Catchwords: EVIDENCE – client legal privilege – waiver of privilege – alleged inconsistency between allegations in Amended Commercial List Cross-Claim Statement and maintenance of privilege – where Cross-Claimants referred in their Amended Commercial List Cross-Claim Statement to giving email instructions to their solicitor concerning profit sharing arrangement to be included in share sale agreement – whether privilege over entire email chains thereby waived Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; [1997] HCA 3 DSE (Holdings) Pty Ltd v InterTAN Inc [2003] 127 FCR 499; [2003] FCA 384 Federal Treasury Enterprise Sojuzplodoimport v Spirits International B.V. (No 6) [2019] FCA 337 TerraCom Ltd v Australian Securities and Investments Commission [2022] FCAFC 151 Category: Procedural rulings Parties: FX Group Holdings Pty Ltd (Plaintiff/First Cross-Defendant) Perpetual Trustee Company Limited as trustee of the CPEC 8 Trust A (formerly the CHAMP IV Trust A) (First Defendant/First Cross-Claimant) P.T. Limited as trustee of the CPEC 8 Trust B (formerly the CHAMP IV Trust B) (Second Defendant/Second Cross-Claimant) Perpetual Corporate Trust Limited as trustee of the CPEC 8 Trust C (formerly the CHAMP IV Trust C) (Third Defendant/Third Cross-Claimant) The Trust Company (Australia) Limited as trustee of the CPEC 8 Trust D (formerly the CHAMP IV Trust D) (Fourth Defendant/Fourth Cross-Claimant) David Swinden (Fifth Defendant/Third Cross-Defendant) Georgina Gane (Sixth Defendant/Fourth Cross-Defendant) Natalie German (Seventh Defendant/Fifth Cross-Defendant) Sheldon Chapman (Eighth Defendant/Sixth Cross-Defendant) Toby Tan (Ninth Defendant/Seventh Cross-Defendant) Vincent Gross (Tenth Defendant/Eighth Cross-Defendant) Xiaohong Yan (Eleventh Defendant/Ninth Cross-Defendant) Xingjia Zhang (Twelfth Defendant/Tenth Cross-Defendant) Daniel Poon (Thirteenth Defendant/Eleventh Cross-Defendant) CPEC 8 Management Pty Ltd (Fifth Cross-Claimant) Fiona Nancy Lock Rimmer (Second Cross-Defendant) Vishal Ahuja & the other persons also named in Schedule A trading as King & Wood Mallesons (Twelfth Cross-Defendant) Representation: Counsel: R A Dick SC with N D Oreb (Plaintiff/First and Second Cross-Defendants) P D Herzfeld SC with A G Willoughby (First to Fourth Defendants/First to Fourth Cross-Claimants) A Munro (Twelfth Cross-Defendant)