The Owners - Strata Plan No. 74602 v Eastmark Holdings Pty Limited [2013] NSWCA 221

The Owners - Strata Plan No. 74602 v Eastmark Holdings Pty Limited [2013] NSWCA 221

The primary judge was correct that the Owners Corporation could not assert legal professional privilege against Eastmark for documents relating to advice given in connection with the Agreement, because Eastmark sued derivatively for the benefit of the Owners Corporation in relation to that matter. However, the primary judge erred by treating all disputed documents as falling into that category. Documents relating to other retainers concerning actual or prospective adversarial claims by the Owners Corporation against Eastmark did not involve a common or joint interest and should not be made available for inspection by Eastmark.

Jurisdiction
Australia
Judgment Date
19 July 2013
Procedural Posture
Civil Appeal Concerning Legal Professional Privilege and Inspection of Subpoenaed Documents / Application for Leave to Appeal Heard Concurrently With the Appeal From an Equity Division Order
Outcome
Leave to appeal granted; appeal allowed; matter remitted; no order as to costs of the application for leave to appeal or the appeal.
Legal Topics
['inspection of Subpoenaed Documents' 'common or Joint Interest Privilege' 'owners Corporation and Lot Owner' 'derivative Action' 'waiver of Privilege']
['practice and Procedure' 'legal Professional Privilege' 'strata Schemes'] ['inspection of Subpoenaed Documents' 'common or Joint Interest Privilege' 'owners Corporation and Lot Owner' 'derivative Action' 'waiver of Privilege']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Appeal Concerning Legal Professional Privilege and Inspection of Subpoenaed Documents / Application for Leave to Appeal Heard Concurrently With the Appeal From an Equity Division Order

Legal Issues

  1. 1 ["Whether the Owners Corporation could assert legal professional privilege against Eastmark, a lot owner, in respect of documents produced on subpoena by the Owners Corporation's solicitors." 'Whether Eastmark and the Owners Corporation had a common or joint interest in documents concerning advice about the Agreement.' 'Whether documents relating to actual or prospective litigation between the Owners Corporation and Eastmark should be distinguished from documents relating to advice about the Agreement.' 'Whether any privilege had been waived.']

Ratio Decidendi

The primary judge was correct that the Owners Corporation could not assert legal professional privilege against Eastmark for documents relating to advice given in connection with the Agreement, because Eastmark sued derivatively for the benefit of the Owners Corporation in relation to that matter. However, the primary judge erred by treating all disputed documents as falling into that category. Documents relating to other retainers concerning actual or prospective adversarial claims by the Owners Corporation against Eastmark did not involve a common or joint interest and should not be made available for inspection by Eastmark.

Court Disposition

Leave to appeal granted; appeal allowed; matter remitted; no order as to costs of the application for leave to appeal or the appeal.

Orders

  • ['Leave to appeal be granted and the appeal be allowed.' 'The matter be remitted to the primary judge, with a direction that the documents or parts of the documents identified in the reasons as not relating to obtaining or giving advice in connection with the Agreement, as defined in the reasons, should not be made...