The Owners – Strata Plan No 76902 v Roads and Maritime Services ABN 76 236 371 [2017] NSWSC 528

The Owners – Strata Plan No 76902 v Roads and Maritime Services ABN 76 236 371 [2017] NSWSC 528

The court found that the subpoenaed documents are relevant and not an abuse of process; privilege does not attach to most of the PSM documents, or if it does, it has been waived by the WBF Parties having relied on the expert advice in support of settlement reasonableness. Disclosure of documents in categories 10 and 23 is necessary for resolving the real issues in dispute, as these documents relate to the scope and cost of works forming part of the claim.

Parties
Seventh Defendant; Second Cross Defendant to Second Cross Claim: Taylor Thomson Whitting (NSW) Pty Ltd; Second Defendant; First Cross Claimant to Second Cross Claim: Walsh Bay Finance Pty Ltd; Third Defendant; Second Cross Claimant to Second Cross Claim: Mirvac (Walsh Bay) Pty Ltd; Fourth Defendant; Third Cross Claimant to Second Cross Claim: Transfield (Walsh Bay) Pty Ltd; Sixth Defendant; Fourth Cross Claimant to Second Cross Claim: Mirvac Design Pty Ltd
Jurisdiction
Australia
Judgment Date
05 May 2017
Procedural Posture
Equity Technology and Construction List / Procedural Ruling on Disclosure/subpoena, Prior to Trial
Outcome
Orders made granting access to subpoenaed documents, ordering disclosure of documents in categories 10 and 23, reserving costs, standing over balance of the application.
Legal Topics
Witness Documents, Client Legal Privilege, Disclosure and Discovery, Waiver of Privilege, Procedural Orders
Evidence Civil Procedure Witness Documents Client Legal Privilege Disclosure and Discovery Waiver of Privilege Procedural Orders

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Parties

Taylor Thomson Whitting (NSW) Pty Ltd

Seventh Defendant; Second Cross Defendant to Second Cross Claim

Walsh Bay Finance Pty Ltd

Second Defendant; First Cross Claimant to Second Cross Claim

Mirvac (Walsh Bay) Pty Ltd

Third Defendant; Second Cross Claimant to Second Cross Claim

Transfield (Walsh Bay) Pty Ltd

Fourth Defendant; Third Cross Claimant to Second Cross Claim

Mirvac Design Pty Ltd

Sixth Defendant; Fourth Cross Claimant to Second Cross Claim

Procedural Posture

Equity Technology and Construction List / Procedural Ruling on Disclosure/subpoena, Prior to Trial

Legal Issues

  1. 1 Whether subpoena for the production of documents should be set aside
  2. 2 Whether documents sought are subject to client legal privilege
  3. 3 Whether privilege has been waived by the party claiming it

Ratio Decidendi

The court found that the subpoenaed documents are relevant and not an abuse of process; privilege does not attach to most of the PSM documents, or if it does, it has been waived by the WBF Parties having relied on the expert advice in support of settlement reasonableness. Disclosure of documents in categories 10 and 23 is necessary for resolving the real issues in dispute, as these documents relate to the scope and cost of works forming part of the claim.

Court Disposition

Orders made granting access to subpoenaed documents, ordering disclosure of documents in categories 10 and 23, reserving costs, standing over balance of the application.

Orders

  • TTW granted access to documents produced in answer to subpoena dated 20 May 2016 addressed to Pell Sullivan Meynink Pty Limited.
  • Cross claimants to the second cross-claim to provide disclosure of documents falling within categories 10 and 23 as per amended notice of motion filed on 24 April 2017.