Madden as Liquidator of Aquanaut Constructions Pty Ltd (In Liq) [2001] NSWSC 966

Madden as Liquidator of Aquanaut Constructions Pty Ltd (In Liq) [2001] NSWSC 966

The Evidence Act privilege regime applied to the order for production. On the proper construction of the deed of assignment, the Burnettes were obliged only to report on recoveries, legal costs and disbursements, and were not required to disclose the substance of legal advice, evidence or negotiations; accordingly privilege in requisitions a, b, c, d, f and g had not been lost. Requisitions e, h and i were within the legitimate scope of a s 596B examination because the liquidator could investigate whether the Burnettes had properly accounted for recoveries attributable to the company's assigned causes of action and whether related claims might exist.

Jurisdiction
Australia
Judgment Date
29 October 2001
Procedural Posture
Motion to Set Aside an Order for Production of Documents Made in Connection With an Examination Under Corporations Act 2001 (cth) S 596 B / Decision of the Supreme Court of New South Wales, Equity Division, on Notice of Motion
Outcome
Privilege upheld. Requisitions a, b, c, d, f and g were set aside. The balance of Mr McConnell's application to set aside the order for production was refused.
Legal Topics
['examination Under Corporations Act 2001 (cth) S 596 B' 'order for Production of Documents' 'legal Professional Privilege' 'advice Privilege' 'litigation Privilege' 'negotiation Privilege' 'waiver of Privilege' "scope of Liquidator's Examination"]
['corporations Law' 'evidence' 'civil Procedure'] ['examination Under Corporations Act 2001 (cth) S 596 B' 'order for Production of Documents' 'legal Professional Privilege' 'advice Privilege' 'litigation Privilege' 'negotiation Privilege' 'waiver of Privilege' "scope of Liquidator's Examination"]

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Procedural Posture

Motion to Set Aside an Order for Production of Documents Made in Connection With an Examination Under Corporations Act 2001 (cth) S 596 B / Decision of the Supreme Court of New South Wales, Equity Division, on Notice of Motion

Legal Issues

  1. 1 ['Whether documents sought from Mr McConnell were privileged under Evidence Act 1995 ss 118, 119 and 131.' 'Whether any privilege had been lost by the terms of the deed of assignment between the liquidator and the Burnettes.' 'Whether the Evidence Act 1995 or common law rules of privilege applied to production of documents under Supreme Court Rules 1970 Part 36 r 12.' "Whether requisitions e, h and i went beyond the proper ambit of an examination under Corporations Act 2001 (Cth) s 596B by relating to the Burnettes' private affairs." 'Whether the order for production should be set aside in whole or in part.']

Ratio Decidendi

The Evidence Act privilege regime applied to the order for production. On the proper construction of the deed of assignment, the Burnettes were obliged only to report on recoveries, legal costs and disbursements, and were not required to disclose the substance of legal advice, evidence or negotiations; accordingly privilege in requisitions a, b, c, d, f and g had not been lost. Requisitions e, h and i were within the legitimate scope of a s 596B examination because the liquidator could investigate whether the Burnettes had properly accounted for recoveries attributable to the company's assigned causes of action and whether related claims might exist.

Court Disposition

Privilege upheld. Requisitions a, b, c, d, f and g were set aside. The balance of Mr McConnell's application to set aside the order for production was refused.

Orders

  • ['Order that requisitions a, b, c, d, f and g of the order for production made on 18 July 2001 directed to Keith Stevens McConnell be set aside.' "Otherwise dismiss Mr McConnell's notice of motion filed 6 August 2001." "Stand over to Wednesday 7 November 2001 at 9.30am the question of costs of the motion and Mrs...