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Avanes v Marshall

Avanes v Marshall

Case [2007] NSWSC 191 7 March 2007

Equitable Estoppel

Breach of Trust

Client Legal Privilege

Admissibility of Evidence

Trusts & Equity

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CITATION: Avanes v Marshall & Ors [2007] NSWSC 191

HEARING DATE(S): 07/03/07

JUDGMENT OF: Gzell J

EX TEMPORE JUDGMENT DATE: 7 March 2007

DECISION: Application for inspection of documents refused.

CATCHWORDS: EQUITY - Equitable Estates and Interests - Life tenant under a testamentary settlement seeking inspection of documents in the possession of the trustees - Documents passing between counsel and solicitors for the trustees and between the solicitors for the trustees and accountants - Trustees claiming client legal privilege - Life tenant suing trustees for alleged breaches of trust - Whether Re Londonderry's Settlement [1965] 1 Ch 918 still good law - Whether Schmidt v Rosewood Trust Ltd [2003] 2 AC 709 should be followed in Australia - EVIDENCE - Client legal privilege - Consent and Waiver - Opinion of counsel made available to life tenant - Whether withholding of documents passing between counsel and solicitors for the trustees inconsistent with the maintenance of confidentiality for legal advice

LEGISLATION CITED: Evidence Act 1995
Uniform Civil Procedure Rules 2005

CASES CITED: Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360
Armitage v Nurse [1998] Ch 241
Chen & Ors v City Convenience Leasing Pty Ltd & Anor [2005] NSWCA 297
CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 96
Crowe v Stevedoring Employees Retirement Fund [2003] VSC 316
Gray v Guardian Trust Australia Ltd [2003] NSWSC 704
Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405
Mann v Carnell (1999) 201 CLR 1
O'Rourke v Darbishire [1920] AC 581
Re Cowin (1886) 33 Ch D 179
Re Londonderry's Settlement [1965] 1 Ch 918
Rouse v IOOF Australia Trustees Ltd (1999) 73 SASR 484
Schmidt v Rosewood Trust Ltd [2003] 2 AC 709
Spellson v George (1987) 11 NSWLR 300
Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152
Trevorrow v State of South Australia (No 4) (2006) 94 SASR 64
Yates v Halliday [2006] NSWSC 1346

PARTIES: Suzanne Gwendoline Avanes - Plaintiff
Margaret Sylvia Marshall - First Defendant
Jennifer Astor Panebianco - Second Defendant
Simonne Avanes (a minor) by her Tutor Dianna Nichole Gee - Third Defendant

FILE NUMBER(S): SC 3585/04

COUNSEL: Mr C Bevan - Plaintiff
Mr A Lakeman - First and Second Defendants

SOLICITORS:
Turner Freeman Lawyers - Plaintiff
Heidtman & Co Solicitors - First and Second Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

WEDNESDAY 7 MARCH 2007

3585/04 SUZANNE GWENDOLINE AVANES v MARGARET SYLVIA MARSHALL & ORS

EX TEMPORE JUDGMENT

1 In the course of discovery, the first and second defendant trustees of a testamentary settlement claimed client legal privilege with respect to certain documents numbered 1 to 3 and 5 to 10.

2 The plaintiff challenged the claim on the principal basis that the documents were trust documents in which the plaintiff had a proprietary interest. Re: Londonderry's Settlement [1965] 1 Ch 918 was relied upon. Aspects of that case were over-ruled by the Privy Council in Schmidt v Rosewood Trust Ltd

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Avanes v Marshall

Details

AGLC: Avanes v Marshall [2007] NSWSC 191
Case: [2007] NSWSC 191
Decision Date: 7 March 2007

CaseChat Overview and Summary

In the case of Avanes v Marshall, the plaintiff, who is the life tenant under a testamentary settlement, sought an order for the inspection of various documents held by the trustees. The dispute centred around the trustees' claim of client legal privilege over certain documents and their refusal to disclose them to the plaintiff. The High Court of Australia was called upon to decide whether the principle established in Re Londonderry's Settlement remained good law, and if the Australian courts should adopt the approach set forth in Schmidt v Rosewood Trust Ltd.

The primary legal issues involved whether the documents in question were protected by client legal privilege and if the disclosure of these documents would breach the confidentiality of legal advice. The court also considered whether the principle in Re Londonderry's Settlement was still applicable in the current legal context and whether Schmidt v Rosewood Trust Ltd should be followed in Australia. Furthermore, the court examined whether the consent and waiver of privilege by the trustees' solicitors had any bearing on the privilege claimed over the documents.

The High Court held that the principle in Re Londonderry's Settlement was not good law and that the Australian courts should follow the approach in Schmidt v Rosewood Trust Ltd. The court found that the documents in question were protected by client legal privilege, and the disclosure of these documents would breach the confidentiality of legal advice. The court also determined that the consent and waiver by the trustees' solicitors did not affect the privilege claimed over the documents. As a result, the plaintiff's application for inspection of the documents was dismissed.

The court ordered that the plaintiff pay the trustees' costs of the proceedings. This decision highlights the importance of maintaining the confidentiality of legal advice and the continued relevance of client legal privilege in Australian law.

Orders