Kanjian v Kanjian (No 2) [2021] NSWSC 14

Kanjian v Kanjian (No 2) [2021] NSWSC 14

The disputed paragraphs of the notices to produce did sufficiently identify the documents sought; however, the legal advice sought was not likely to materially assist the determination of the receivers' remuneration given the appointment orders and scope of the receivership. Additionally, the references to legal advice in the receivers' affidavit did not amount to a waiver of privilege as the contents were not put in issue. Accordingly, the notices to produce were set aside.

Parties
First Applicant: Bradley John Tonks; Second Applicant: Mark Roufeil; First Defendant/respondent: Kenneth Kanjian; Plaintiff: Loris Sarkis Kanjian; Second Defendant: Kanjian Holdings No 1 Pty Ltd; Third Defendant: Sahab Holdings Pty Ltd; Fourth Defendant: Sonia Kanjian by NSW Trustee as tutor
Jurisdiction
Australia
Judgment Date
22 January 2021
Procedural Posture
Civil / Interlocutory Application—application to Set Aside Notices to Produce
Outcome
Receivers' application granted. Notices to produce set aside; access motion dismissed; costs ordered against Ken Kanjian.
Legal Topics
Notices to Produce, Receivers' Remuneration, Legal Professional Privilege, Waiver of Privilege
Civil Procedure Equity Notices to Produce Receivers' Remuneration Legal Professional Privilege Waiver of Privilege

Case Brief

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Parties

Bradley John Tonks

First Applicant

Mark Roufeil

Second Applicant

Kenneth Kanjian

First Defendant/respondent

Loris Sarkis Kanjian

Plaintiff

Kanjian Holdings No 1 Pty Ltd

Second Defendant

Sahab Holdings Pty Ltd

Third Defendant

Sonia Kanjian by NSW Trustee as tutor

Fourth Defendant

Procedural Posture

Civil / Interlocutory Application—application to Set Aside Notices to Produce

Legal Issues

  1. 1 Whether the notices to produce specified the documents to be produced as required by UCPR r 34.1
  2. 2 Whether the legal advice sought was likely to materially assist the Court on the determination of the receivers' remuneration
  3. 3 Whether references to legal advice in the receivers' affidavit amounted to waiver of legal professional privilege

Ratio Decidendi

The disputed paragraphs of the notices to produce did sufficiently identify the documents sought; however, the legal advice sought was not likely to materially assist the determination of the receivers' remuneration given the appointment orders and scope of the receivership. Additionally, the references to legal advice in the receivers' affidavit did not amount to a waiver of privilege as the contents were not put in issue. Accordingly, the notices to produce were set aside.

Court Disposition

Receivers' application granted. Notices to produce set aside; access motion dismissed; costs ordered against Ken Kanjian.

Orders

  • Pursuant to r 34.2 of the Uniform Civil Procedure Rules 2005 (NSW), paragraphs 1 to 4 of the notice to produce to Court issued by the First Defendant addressed to the Receivers dated 26 September 2019 be set aside.
  • Pursuant to r 34.2 of the Uniform Civil Procedure Rules 2005 (NSW), the notice to produce to Court issued by the First Defendant addressed to the Receivers dated 10 August 2020 be set aside.