Luu Bankruptcy (Re)

Luu Bankruptcy (Re)

Records evidencing receipt and disbursement of trust funds in the law firm's trust account relating to the bankrupt from August 1, 2011 to the present are factual and not presumptively privileged and must be produced, subject to expungement of any portions containing legal advice or communications for the purpose of obtaining legal advice; transfers from trust to payment of legal fees are presumptively privileged and need not be disclosed; law firm entitled to reasonable costs of production; parties otherwise bear their own costs.

Citation
2013 BCSC 1374
Parties
Petitioner; Foreign Representative; Trustee: Wong Tak Man Stephen; Petitioner; Foreign Representative; Trustee: Osman Mohammed Arab; Respondent; Bankrupt: Luu Hung Viet Derrick; Respondent; Law Firm Representing Bankrupt: Murray Jamieson LLP
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
31 July 2013
Procedural Posture
Bankruptcy and Insolvency Act Part XIII (cross Border Insolvency) Recognition and Ancillary Disclosure Under S.269 / Interlocutory Application for Production of Records / Disclosure
Outcome
Application granted in part.
Legal Topics
Foreign Recognition of Trustees, Production of Trust Account Records, Privilege V Factual Records, Expungement of Privileged Communications, Lawyer's Fees Privilege
Source Language
English
Bankruptcy Cross Border Insolvency Solicitor Client Privilege Civil Procedure Trust Law Foreign Recognition of Trustees Production of Trust Account Records Privilege V Factual Records +2 more

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Parties

Wong Tak Man Stephen

Petitioner; Foreign Representative; Trustee

Osman Mohammed Arab

Petitioner; Foreign Representative; Trustee

Luu Hung Viet Derrick

Respondent; Bankrupt

Murray Jamieson LLP

Respondent; Law Firm Representing Bankrupt

Procedural Posture

Bankruptcy and Insolvency Act Part XIII (cross Border Insolvency) Recognition and Ancillary Disclosure Under S.269 / Interlocutory Application for Production of Records / Disclosure

Legal Issues

  1. 1 Whether trust account records and related documents held by the law firm are protected by solicitor-client privilege
  2. 2 Whether the distinction between communications for legal advice and independent facts governs producibility
  3. 3 Whether records that arise out of the solicitor-client relationship are presumptively privileged

Ratio Decidendi

Records evidencing receipt and disbursement of trust funds in the law firm's trust account relating to the bankrupt from August 1, 2011 to the present are factual and not presumptively privileged and must be produced, subject to expungement of any portions containing legal advice or communications for the purpose of obtaining legal advice; transfers from trust to payment of legal fees are presumptively privileged and need not be disclosed; law firm entitled to reasonable costs of production; parties otherwise bear their own costs.

Court Disposition

Application granted in part.

Orders

  • Law firm must disclose records showing the amount of any trust funds held by it for or at the direction of Luu Hung Viet Derrick as of the date of judgment.
  • Law firm must disclose records showing receipt of any trust funds (except those specific funds already known to applicants) from August 1, 2011 to the present, subject to expungement of privileged communications.