Rickard Constructions Pty Limited v Rickard Hails Moretti Pty Limited [2006] NSWSC 234

Rickard Constructions Pty Limited v Rickard Hails Moretti Pty Limited [2006] NSWSC 234

The funder and the plaintiff had a collaborative and supportive relationship under the Deed of Company Arrangement, including an interest in continued funding and advantageous conduct of the litigation. Given that relationship, the nature of the meetings and documents, and the purpose of keeping the funder informed so that the litigation could be funded and continued, the funder was under an implied obligation not to disclose the communications and documents. The communications were confidential communications within s 117. The funder also had a common interest with the plaintiff relating to the proceedings, so s 122(2) and s 122(4) did not apply. In any event, disclosure occurred in the...

Jurisdiction
Australia
Judgment Date
05 April 2006
Procedural Posture
Application Challenging Claim of Client Legal Privilege Over Documents Produced Pursuant to a Notice to Produce / Interlocutory Application in Supreme Court of New South Wales, Equity Division, Technology & Construction List
Outcome
Access to documents refused.
Legal Topics
['client Legal Privilege' 'litigation Privilege' 'confidential Communications' 'waiver of Privilege' 'common Interest Privilege' 'litigation Funding Under a Deed of Company Arrangement' 'notice to Produce']
['evidence' 'privilege' 'civil Procedure' 'insolvency'] ['client Legal Privilege' 'litigation Privilege' 'confidential Communications' 'waiver of Privilege' 'common Interest Privilege' 'litigation Funding Under a Deed of Company Arrangement' 'notice to Produce']

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Procedural Posture

Application Challenging Claim of Client Legal Privilege Over Documents Produced Pursuant to a Notice to Produce / Interlocutory Application in Supreme Court of New South Wales, Equity Division, Technology & Construction List

Legal Issues

  1. 1 ['Whether communications and documents provided to a litigation funder were confidential communications or confidential documents within ss 117, 118 and 119 of the Evidence Act 1995 (NSW).' "Whether a litigation funder was under an implied obligation not to disclose communications and documents received from the plaintiff's lawyers." 'Whether any privilege was lost or waived under s 122(2) or s 122(4) of the Evidence Act 1995 (NSW).' 'Whether the plaintiff and the litigation funder had a common interest relating to the proceedings within s 122(5)(b) of the Evidence Act 1995 (NSW).' 'Whether the documents were privileged under s 118 and/or s 119 of the Evidence Act 1995 (NSW).']

Ratio Decidendi

The funder and the plaintiff had a collaborative and supportive relationship under the Deed of Company Arrangement, including an interest in continued funding and advantageous conduct of the litigation. Given that relationship, the nature of the meetings and documents, and the purpose of keeping the funder informed so that the litigation could be funded and continued, the funder was under an implied obligation not to disclose the communications and documents. The communications were confidential communications within s 117. The funder also had a common interest with the plaintiff relating to the proceedings, so s 122(2) and s 122(4) did not apply. In any event, disclosure occurred in the...

Court Disposition

Access to documents refused.

Orders

  • ['The application for access to the documents was refused.' 'The Court indicated it would hear the parties on appropriate orders, including costs, when the matter was before the Court for directions on 7 April 2006.']