Schmuelly v Elrob Construction Group Pty Ltd (waiver of privilege) [2025] NSWSC 25

Schmuelly v Elrob Construction Group Pty Ltd (waiver of privilege) [2025] NSWSC 25

By making submissions and filing an affidavit blaming the former solicitor and referring to communications and actions relevant to the conduct of the defence, the defendants have waived privilege over those communications, and it would be inconsistent and unfair to allow them to maintain privilege in these circumstances.

Parties
Plaintiff: Dror Schmuelly; First Defendant: Elrob Construction Group Pty Ltd; Second Defendant: Elia Boujaoude
Jurisdiction
Australia
Judgment Date
03 February 2025
Procedural Posture
Equity Technology and Construction List / Procedural Ruling on Evidentiary Objection (waiver of Privilege)
Outcome
Documents admitted
Legal Topics
Client Legal Privilege, Waiver of Privilege, Admission of Evidence, Solicitor Communications
Evidence Equity Civil Procedure Client Legal Privilege Waiver of Privilege Admission of Evidence Solicitor Communications

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Parties

Dror Schmuelly

Plaintiff

Elrob Construction Group Pty Ltd

First Defendant

Elia Boujaoude

Second Defendant

Procedural Posture

Equity Technology and Construction List / Procedural Ruling on Evidentiary Objection (waiver of Privilege)

Legal Issues

  1. 1 Whether the defendants have waived client legal privilege over communications with their former solicitor by the manner of submissions and affidavits filed in support of the motion to vacate the hearing

Ratio Decidendi

By making submissions and filing an affidavit blaming the former solicitor and referring to communications and actions relevant to the conduct of the defence, the defendants have waived privilege over those communications, and it would be inconsistent and unfair to allow them to maintain privilege in these circumstances.

Court Disposition

Documents admitted

Orders

  • The bundle of documents produced by the former solicitor are admitted as evidence, subject to further review for compliance with the scope of the subpoena.