NSW Caselaw
New South Wales Supreme Court
CITATION : d'Apice v Gutkovich - Estate of Abraham (No. 1) [2010] NSWSC 1336
HEARING DATE(S) : 25, 26, 27 & 28 October 2010
JUDGMENT DATE : 27 October 2010
JURISDICTION : Equity
JUDGMENT OF : White J
EX TEMPORE JUDGMENT DATE : 27 October 2010
DECISION : Claim for privilege upheld.
CATCHWORDS : PROCEDURE – privilege – where proceedings concern testamentary capacity of deceased – where documents sought under subpoena addressed to deceased's lawyer who is also lawyer for plaintiff seeking probate – where documents prima facie privileged under Evidence Act 1995, s 119 or common law – application of Uniform Civil Procedure Rules, r 1.9 and Evidence Act to inspection of documents – whether Evidence Act, s 121 precludes privilege claim – whether deceased is "a client" for s 121 – whether privilege waived under Evidence Act, ss 122 or 126
LEGISLATION CITED : Evidence Act 1995 (NSW) Civil Procedure Act 2005 (NSW)
CATEGORY : Procedural and other rulings
Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151 Waugh Asset Management Pty Ltd v Merrill Lynch [2010] NSWSC 197 CASES CITED : Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297 New Cap Reinsurance (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 ML Ubase Holdings Co Ltd v Trigem Computer Inc [2007] NSWSC 859; (2007) 69 NSWLR 577
TEXTS CITED : Australian Law Reform Commission, Evidence, Report No. 26 (Interim) (1985) Australian Law Reform Commission, Evidence, Report No. 38 (Final)
Plaintiff: William Reginald d'Apice PARTIES : Defendant: Galina Gutkovich
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