NSW Caselaw
New South Wales Court of Appeal
Chen & Ors v City Convenience Leasing Pty Ltd & Anor [2005] NSWCA 297 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 10/08/05
JUDGMENT DATE: 12 September 2005
JUDGMENT OF: Bryson JA at 1; Windeyer J at 2; Gzell J at 3
DECISION: "New trial: see [56]
CATCHWORDS: EVIDENCE - client legal privilege - consent and waiver - lease of city convenience store - lessors sued for rent &c, lessee cross-claimed for misrepresentation, misleading or deceptive conduct in negotiations preceding grant of lease - correspondence and drafts sent to lessee's solicitor before grant of lease contained statements relevant to alleged misrepresentations - lessee objected and DCJ rejected questions in cross-examination relating to communications and advice from solicitor in relation to lease before execution - held that conduct of cross-claim was inconsistent with maintenance of confidentiality for legal advice - in interests of fairness, client legal privilege ought not to be maintained and waiver of privilege is to be imputed by operation of law - consideration of Evidence Act 1995 (NSW) s 118, s 122 - extensive review of authorities - Telstra Corporation v B T Australasia (1998) 85 FCR 152 (FC FC) followed - new trial ordered.
Fair Trading Act 1987 Evidence Act 1995 Supreme Court Rules 1970 LEGISLATION CITED: Uniform Civil Procedure Rules 2005 Civil Procedure Act 2005 Suitors' Fund Act 1951
Jones v Dunkel (1959) 101 CLR 298 Telstra Corporation v Australis Media Holdings (1997) 41 NSWLR 277 Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 Akins v Abigroup Ltd (1998) 43 NSWLR 539 ESSO Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 District Court Rules 1973 Mann v Carnell (1999) 201 CLR 1 Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 Wayne Lawrence Pty Ltd v Hunt [1999] NSWSC 1044 Garratt's Ltd v Thanga Thangathurai [2002] NSWSC 39 CASES CITED: Fort Dodge Australia Pty Ltd v Nature Vet Pty Ltd [2002] FCA 501 BP Australia Pty Ltd v Nyran Pty Ltd [2002] FCA 1302 United Rural Enterprises v Lopmand [2002] NSWSC 1142 DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499 Singapore Airlines v Sydney Airports Corporation [2004] NSWSC 380 Wyadra Pty Ltd v Mailler (No 2) [2005] NSWSC 88 Equuscorp Pty Ltd v Kamisha Corp Ltd (1999) ATPR 41-697 John Tanner Holdings Pty Ltd v Mortgage Management Ltd (2001) 182 ALR 201 Liquorland (Australia) Pty Ltd v Anghie [2003] 7 VR 27 at 42 Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 1296 Stead v State Government Insurance Commission (1986) 161 CLR 141
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