In the matter of Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 543

In the matter of Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 543

There are reasonable grounds for finding that the liquidator shared the funder's improper purpose in using the examination proceedings to embarrass the examinees and apply pressure for a favourable financial settlement; privilege cannot be maintained over the challenged documents because they were prepared in furtherance of abuse of power, thus s 125 applies and all claims for privilege to subpoenaed materials fail.

Parties
Plaintiff (liquidator): Andrew Hugh Jenner Wily; Defendant (examinee): Andrew Timothy Roberts; Defendant (examinee): Ross Arnold McDiven; Defendant (examinee): Karen Maree Pederson; Respondent/third Party: James Warren Herbert Byrnes; Respondent/third Party: ACN 089 518 721 (formerly Consolidated Byrnes Holdings Pty Ltd)
Jurisdiction
Australia
Judgment Date
06 June 2006
Procedural Posture
Interlocutory Application (privilege/subpoena) / Ruling on Claims of Client Legal Privilege to Subpoenaed Documents
Outcome
All claims for privilege unsuccessful.
Legal Topics
Client Legal Privilege, Liquidator's Examination, Litigation Funding, Abuse of Power, Disclosure/waiver of Privilege
Equity Practice and Procedure Evidence Client Legal Privilege Liquidator's Examination Litigation Funding Abuse of Power Disclosure/waiver of Privilege

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Parties

Andrew Hugh Jenner Wily

Plaintiff (liquidator)

Andrew Timothy Roberts

Defendant (examinee)

Ross Arnold McDiven

Defendant (examinee)

Karen Maree Pederson

Defendant (examinee)

James Warren Herbert Byrnes

Respondent/third Party

ACN 089 518 721 (formerly Consolidated Byrnes Holdings Pty Ltd)

Respondent/third Party

Procedural Posture

Interlocutory Application (privilege/subpoena) / Ruling on Claims of Client Legal Privilege to Subpoenaed Documents

Legal Issues

  1. 1 Whether documents produced on subpoena in liquidation examination proceedings are privileged under ss 118 or 119 of Evidence Act 1995 (NSW)
  2. 2 Whether privilege has been waived under s 122(2) or (4)
  3. 3 Whether common interest privilege under s 122(5)(b) applies

Ratio Decidendi

There are reasonable grounds for finding that the liquidator shared the funder's improper purpose in using the examination proceedings to embarrass the examinees and apply pressure for a favourable financial settlement; privilege cannot be maintained over the challenged documents because they were prepared in furtherance of abuse of power, thus s 125 applies and all claims for privilege to subpoenaed materials fail.

Court Disposition

All claims for privilege unsuccessful.

Orders

  • Access to subpoenaed materials is granted to the defendants; no privilege attaches to any of the documents challenged.