In the matter of Atlas Construction Group Pty Limited (in liquidation) [2019] NSWSC 1656

In the matter of Atlas Construction Group Pty Limited (in liquidation) [2019] NSWSC 1656

On the evidence, Ashurst's retainer or proposed retainer was initially by Atlas and the advice sought concerned options and strategies for the company. Although the retainer was changed into the directors' names to try to preserve privilege, the subject matter of the advice, communication with Atlas' tax consultant, and payment of part of Ashurst's fees by Atlas did not establish a directors-only privilege. Any client legal privilege in the pre-administration documents was a joint privilege with Atlas and could not be maintained against Atlas' liquidator.

Jurisdiction
Australia
Judgment Date
18 November 2019
Procedural Posture
Procedural and Other Ruling in Equity Corporations List / Ex Tempore Ruling on Claim for Client Legal Privilege Over Documents Produced by Ashurst Australia in Answer to an Order for Production
Outcome
Claim for privilege not upheld.
Legal Topics
['client Legal Privilege' 'joint Privilege' 'liquidator Access to Company Documents' 'retainer of Solicitors by Company and Directors' 'order for Production']
['evidence' 'corporations'] ['client Legal Privilege' 'joint Privilege' 'liquidator Access to Company Documents' 'retainer of Solicitors by Company and Directors' 'order for Production']

Case Brief

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Procedural Posture

Procedural and Other Ruling in Equity Corporations List / Ex Tempore Ruling on Claim for Client Legal Privilege Over Documents Produced by Ashurst Australia in Answer to an Order for Production

Legal Issues

  1. 1 ["Whether documents created between Ashurst's retainer in July 2017 and the appointment of administrators to Atlas in May 2018 were protected from production by client legal privilege in favour of the directors alone." 'Whether any client legal privilege in those documents was a joint privilege with Atlas and therefore not maintainable against its liquidator.']

Ratio Decidendi

On the evidence, Ashurst's retainer or proposed retainer was initially by Atlas and the advice sought concerned options and strategies for the company. Although the retainer was changed into the directors' names to try to preserve privilege, the subject matter of the advice, communication with Atlas' tax consultant, and payment of part of Ashurst's fees by Atlas did not establish a directors-only privilege. Any client legal privilege in the pre-administration documents was a joint privilege with Atlas and could not be maintained against Atlas' liquidator.

Court Disposition

Claim for privilege not upheld.

Orders

  • ['The claim for privilege in respect of documents which came into existence between when Ashurst was retained and when administrators were appointed to Atlas is subject to joint client legal privilege with Atlas.' 'The liquidators of Atlas are entitled to inspect those documents.']