In the matter of Creditors Trust Deed Established in the Administration of Bevillesta Pty Ltd [2011] NSWSC 1419

In the matter of Creditors Trust Deed Established in the Administration of Bevillesta Pty Ltd [2011] NSWSC 1419

The documents were not protected by s 118(c) because their essential character was communications between the administrators' lawyers and Gadens, and they did not fall within s 118(a) or s 118(b). However, at the time the letters were written it was anticipated that Ronnat would lodge a proof of debt, that it might be rejected, and that proceedings would follow raising the same issues as the earlier litigation against Bevillesta. Bevillesta, the receivers and the administrators had the same interest in seeing that Ronnat's claim was not paid unless Bevillesta was legally obliged to pay it. That was sufficient to establish a common interest, so disclosure to the administrators' lawyers did...

Jurisdiction
Australia
Judgment Date
25 November 2011
Procedural Posture
Appeal Against Rejection of Proof of Debt; Application for Access to Documents Produced Under Notice to Produce / Interlocutory Application Concerning Claims for Privilege
Outcome
The plaintiff was denied access to the disputed documents and ordered to pay the first defendants' costs of the application for access.
Legal Topics
['legal Professional Privilege' 'common Interest Privilege' 'notice to Produce' 'proof of Debt' 'voluntary Administration' 'creditors Trust']
['civil Procedure' 'evidence' 'corporations'] ['legal Professional Privilege' 'common Interest Privilege' 'notice to Produce' 'proof of Debt' 'voluntary Administration' 'creditors Trust']

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Procedural Posture

Appeal Against Rejection of Proof of Debt; Application for Access to Documents Produced Under Notice to Produce / Interlocutory Application Concerning Claims for Privilege

Legal Issues

  1. 1 ['Whether the plaintiff should have access to documents produced by the first defendants in response to a notice to produce where privilege was claimed.' "Whether communications between the administrators' lawyers and Gadens Lawyers were protected by legal advice privilege under s 118 of the Evidence Act 1995 (Cth)." 'Whether disclosure of the communications was protected by common interest privilege under s 122(5)(c) of the Evidence Act 1995 (Cth).']

Ratio Decidendi

The documents were not protected by s 118(c) because their essential character was communications between the administrators' lawyers and Gadens, and they did not fall within s 118(a) or s 118(b). However, at the time the letters were written it was anticipated that Ronnat would lodge a proof of debt, that it might be rejected, and that proceedings would follow raising the same issues as the earlier litigation against Bevillesta. Bevillesta, the receivers and the administrators had the same interest in seeing that Ronnat's claim was not paid unless Bevillesta was legally obliged to pay it. That was sufficient to establish a common interest, so disclosure to the administrators' lawyers did...

Court Disposition

The plaintiff was denied access to the disputed documents and ordered to pay the first defendants' costs of the application for access.

Orders

  • ["The plaintiff be denied access to the documents contained in packets N-1 and N-2 produced in response to the plaintiff's notice to produce returnable on 25 October 2011." "The plaintiff pay the first defendants' costs of the application for access." "There be no order for costs in relation to the second...