Smith v Australian Executor Trustees Limited (No 5) [2019] NSWSC 751

Supreme Court New South Wales

Medium Neutral Citation: Smith v Australian Executor Trustees Limited (No 5) [2019] NSWSC 751 Hearing dates: 4 June 2019 Decision date: 20 June 2019 Jurisdiction: Equity Before: Ball J Decision: (1) The amount paid into Court on 21 February 2019 of $2,188,554.74, together with any interest thereon, be paid to the trust account of Roberts and Partners Lawyers BSB xxxx Account No xxxx;

(2) ACN 133 560 086 Pty Limited pay JustKapital Portfolio Pty Limited's costs of JustKapital Portfolio Pty Limited's notice of motion filed on 5 March 2019; and

(3) The notice of motion filed on 6 March 2019 by ACN 133 560 086 Pty Limited be dismissed with costs. Catchwords: PROCEDURE – money paid into court – whether money should be paid out or retained pending outcome of substantive proceedings – interpretation of deed of settlement and other documents – whether varied by subsequent agreement and events – whether in interests of justice to retain money in court EVIDENCE – Privileges – Without prejudice privilege – section 131(1) of the Evidence Act 1995 (NSW) – whether correspondence written in context of attempt to negotiate settlement – whether exception in section 131(2)(f) of Evidence Act 1995 (NSW) applies Legislation Cited: Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Bundanoon Sandstone Pty Ltd v Cenric Group Pty Ltd [2019] NSWCA 87 Category: Procedural and other rulings Parties: JustKapital Portfolio Pty Limited (Applicant on 5 March 2019 Motion | Respondent on 6 March 2019 Motion)

ACN 133 560 086 Pty Limited (formerly Litman Holdings Pty Limited) (Applicant on 6 March 2019 Motion | Respondent on 5 March 2019 Motion) Representation: Counsel: MR Elliot SC with B Cameron (Applicant on 5 March 2019 Motion | Respondent on 6 March 2019 Motion)