Almona Pty Ltd v Parklea Corporation Pty Ltd [2019] NSWSC 579

Supreme Court New South Wales

Medium Neutral Citation: Almona Pty Ltd v Parklea Corporation Pty Ltd [2019] NSWSC 579 Hearing dates: 15 April, 7 May 2019 Decision date: 17 May 2019 Jurisdiction: Equity - Duty List Before: Kunc J Decision: Privilege not applicable to one communication Catchwords: EVIDENCE — Privileges — Client legal privilege — Loss of — Whether communication prepared in furtherance of a fraud — Evidence Act 1995 (NSW), s125 Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Director of Public Prosecutions (NSW) v Stanizzo [2019] NSWCA 12 Forsyth v Blundell [1973] HCA 20; (1973) 129 CLR 477 Latec Investments Limited v Hotel Terrigal Pty Limited (in liquidation) (1965) 113 CLR 265 Category: Procedural and other rulings Parties: Almona Pty Limited ACN 610 441 056 (Plaintiff) Parklea Corporation Pty Limited ACN 610 441 056 (First Defendant) Secured Asset Portfolio III Limited ARBN 161 048 577 (Second Defendant) PT Limited ACN 004 454 666 (Third Defendant) Representation: Counsel:

D. Williams SC, E. A. Bishop and E.A. Walker (Plaintiff) E.A.J. Hyde and T. Epstein (Second Defendant)

Solicitors:

HWL Ebsworth (Plaintiff) King & Wood Mallesons (Defendants) File Number(s): 2018/317496 Publication restriction: No

Judgment

Summary 1. In these proceedings, the plaintiff ("Almona") alleges that the second defendant ("SAP") breached the duties which SAP is alleged to have owed to Almona in selling certain land (the "Land") as a mortgagee to the first defendant ("Parklea"). 2. This judgment resolves a dispute over access to certain documents evidencing communications that were produced by SAP in respect of which it claimed client legal privilege pursuant to s 118 of the Evidence Act 1995 (NSW) (the "Act"). In these reasons I shall refer to "documents", which should be understood as referring to the communications evidenced by those documents. 3. Almona submits that even if the documents are privileged, that privilege has been lost pursuant to s 125 of the Act because the documents were prepared "in furtherance of the commission of a fraud" (the "Exception"). The Court accepts SAP's submission that any privilege has been lost in relation to one of those documents and will order that SAP have access to that document. 4. Mr D L Williams of Senior Counsel appeared with Ms E A Bishop of Counsel and Mr E A Walker of Counsel for Almona. Mr E Hyde of Counsel appeared with Mr T Epstein of Counsel for Parklea.