The Trust Company Ltd v Visa Global Logistics Pty Ltd (No 3) [2020] NSWSC 1666

Supreme Court New South Wales

Medium Neutral Citation: The Trust Company Ltd v Visa Global Logistics Pty Ltd (No 3) [2020] NSWSC 1666 Hearing dates: 19 November 2020 Decision date: 23 November 2020 Jurisdiction: Equity - Commercial List Before: Hammerschlag J Decision: Privilege claim upheld Catchwords: EVIDENCE – Legal professional privilege – Waiver – No issue of principle Legislation Cited: Evidence Act 1995 (NSW) Category: Procedural and other rulings Parties: The Trust Company Limited - Plaintiff Visa Global Logistics Pty Ltd - Defendant Representation: Counsel: T.W. Marskell - Plaintiff N. Kidd SC – Defendant

Solicitors: Wotton + Kearney - Plaintiff Johnson Winter & Slattery - Defendant File Number(s): 2014/365944

JUDGMENT 1. HIS HONOUR: The plaintiff (TCL) seeks production of 55 documents discovered by the defendant (VISA) over which VISA claims legal professional privilege. TCL says VISA has waived privilege because it has put its own state of mind in issue and the documents go to that state of mind. It also puts that production is reasonably necessary to enable a proper understanding of documents in respect of which there has been an earlier voluntary waiver of privilege: see Evidence Act 1995 (NSW) ss 122(2) and 126. 2. TCL is the landlord of premises at 1 Coal Pier Road, Banksmeadow, being a warehouse facility which was purpose-built for VISA and of which VISA is the tenant. In the principal proceedings, TCL seeks an order rectifying the lease. The underlying dispute is the correct method of a survey of part of the leased area described as the 'Hardstand Space', which is represented by hatched areas in Annexures F and G to the lease. The method of survey will determine the area of the 'Hardstand Space' and, in turn, the rent payable. 3. TCL says the hatched area in Annexure F was not to scale and not intended to represent the exact dimensions. VISA says that the survey should be undertaken on the basis that the hatched area in Annexure F represents exact dimensions. The first method produces a larger area and a higher rent. TCL says that if VISA's method is to be adopted, the lease should be rectified. 4. The parties agreed that the documents are to be produced if they fall within the following agreed description: Documents…which contain any comment, advice, request for advice or discussion about: (a) The meaning or effect of Annexure F to the Agreement for Lease as executed or in any draft of the Agreement for Lease; or (b) whether VISA would pay rent for the areas under the warehouse awnings (also called warehouse aprons) and/or truck circulation roadways including, without limitation, any agreement that VISA would not pay rent for the areas under the warehouse awnings (or aprons) and/or truck circulation roadways. 1. The parties also agreed that I should examine the documents and rule on whether any of them fit this description. 2. I have examined the documents. I do not consider that any of them fit the description and I so rule. 3. VISA's claim for privilege is upheld. 4. The documents will be returned to VISA.

************ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 November 2020