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Chen v City Convenience Leasing Pty Ltd

Chen v City Convenience Leasing Pty Ltd

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CITATION:
Chen & Ors v City Convenience Leasing Pty Ltd & Anor [2005] NSWCA 297
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S):
10/08/05

JUDGMENT DATE:

12 September 2005

JUDGMENT OF:
Bryson JA at 1; Windeyer J at 2; Gzell J at 3

DECISION:
"New trial: see [56]

CATCHWORDS:
EVIDENCE - client legal privilege - consent and waiver - lease of city convenience store - lessors sued for rent &c, lessee cross-claimed for misrepresentation, misleading or deceptive conduct in negotiations preceding grant of lease - correspondence and drafts sent to lessee's solicitor before grant of lease contained statements relevant to alleged misrepresentations - lessee objected and DCJ rejected questions in cross-examination relating to communications and advice from solicitor in relation to lease before execution - held that conduct of cross-claim was inconsistent with maintenance of confidentiality for legal advice - in interests of fairness, client legal privilege ought not to be maintained and waiver of privilege is to be imputed by operation of law - consideration of Evidence Act 1995 (NSW) s 118, s 122 - extensive review of authorities - Telstra Corporation v B T Australasia (1998) 85 FCR 152 (FC FC) followed - new trial ordered.

LEGISLATION CITED:
Fair Trading Act 1987
Evidence Act 1995
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005
Civil Procedure Act 2005
Suitors' Fund Act 1951

CASES CITED:
Jones v Dunkel (1959) 101 CLR 298
Telstra Corporation v Australis Media Holdings (1997) 41 NSWLR 277
Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360
Akins v Abigroup Ltd (1998) 43 NSWLR 539
ESSO Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
District Court Rules 1973
Mann v Carnell (1999) 201 CLR 1
Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152
Wayne Lawrence Pty Ltd v Hunt [1999] NSWSC 1044
Garratt's Ltd v Thanga Thangathurai [2002] NSWSC 39
Fort Dodge Australia Pty Ltd v Nature Vet Pty Ltd [2002] FCA 501
BP Australia Pty Ltd v Nyran Pty Ltd [2002] FCA 1302
United Rural Enterprises v Lopmand [2002] NSWSC 1142
DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499
Singapore Airlines v Sydney Airports Corporation [2004] NSWSC 380
Wyadra Pty Ltd v Mailler (No 2) [2005] NSWSC 88
Equuscorp Pty Ltd v Kamisha Corp Ltd (1999) ATPR 41-697
John Tanner Holdings Pty Ltd v Mortgage Management Ltd (2001) 182 ALR 201
Liquorland (Australia) Pty Ltd v Anghie [2003] 7 VR 27 at 42
Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 1296
Stead v State Government Insurance Commission (1986) 161 CLR 141

PARTIES:
Mr Xian Sheng Chen, Shu Hsing Tseng and Jie Chen Zheng - Appellants
City Convenience Leasing Pty Ltd (formerly known as City Convenience Stores Pty Ltd) - First Respondent
Jamal Gebara - second Respondent

FILE NUMBER(S):
CA 40749/04

COUNSEL:
Mr D B McGovern SC/ Mr A O'Brien - Appellants
Mr N Cotman SC/ Mr K…

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.

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Details

Case: [2005] NSWCA 297
Decision Date: 12 September 2005

CaseChat Overview and Summary

The appeal concerned a dispute between a lessor, City Convenience Leasing Pty Ltd, and a lessee, Chen, regarding a lease of a city convenience store. The lessor had sued the lessee for rent, and the lessee had cross-claimed alleging misrepresentation and misleading or deceptive conduct during the lease negotiations. The primary issue on appeal was the admissibility of certain communications and advice provided to the lessee by their solicitor prior to the execution of the lease, which were relevant to the alleged misrepresentations.

The central legal question before the Court of Appeal was whether the lessee had waived client legal privilege over communications and advice received from their solicitor concerning the lease negotiations. Specifically, the court had to determine if the lessee's conduct in pursuing the cross-claim for misrepresentation was inconsistent with the maintenance of confidentiality for that legal advice, and if, in the interests of fairness, privilege ought not to be maintained and waiver should be imputed by operation of law. The court was required to consider the principles of client legal privilege, consent, and waiver, particularly in light of sections 118 and 122 of the *Evidence Act 1995* (NSW).

The Court of Appeal, after an extensive review of authorities including *Telstra Corporation v B T Australasia*, held that the lessee's conduct in bringing the cross-claim was indeed inconsistent with the maintenance of confidentiality regarding the legal advice received. The court reasoned that to allow the lessee to rely on the alleged misrepresentations while simultaneously asserting privilege over the very advice that might have informed them of those misrepresentations would be unfair. Consequently, the court imputed a waiver of client legal privilege by operation of law.

The Court of Appeal ordered a new trial.

Orders

Orders of the court

"New trial: see [56]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Chen & Ors v City Convenience Leasing Pty Ltd & Anor [2005] NSWCA 297 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	10/08/05
JUDGMENT DATE:	12 September 2005
JUDGMENT OF:	Bryson JA at 1; Windeyer J at 2; Gzell J at 3
DECISION:	"New trial: see [56]

CATCHWORDS:	EVIDENCE - client legal privilege - consent and waiver - lease of city convenience store - lessors sued for rent &c, lessee cross-claimed for misrepresentation, misleading or deceptive conduct in negotiations preceding grant of lease - correspondence and drafts sent to lessee's solicitor before grant of lease contained statements relevant to alleged misrepresentations - lessee objected and DCJ rejected questions in cross-examination relating to communications and advice from solicitor in relation to lease before execution - held that conduct of cross-claim was inconsistent with maintenance of confidentiality for legal advice - in interests of fairness, client legal privilege ought not to be maintained and waiver of privilege is to be imputed by operation of law - consideration of Evidence Act 1995 (NSW) s 118, s 122 - extensive review of authorities - Telstra Corporation v B T Australasia (1998) 85 FCR 152 (FC FC) followed - new trial ordered.
LEGISLATION CITED:	Fair Trading Act 1987 Evidence Act 1995 Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005 Civil Procedure Act 2005 Suitors' Fund Act 1951
CASES CITED:	Jones v Dunkel (1959) 101 CLR 298 Telstra Corporation v Australis Media Holdings (1997) 41 NSWLR 277 Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 Akins v Abigroup Ltd (1998) 43 NSWLR 539 ESSO Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 District Court Rules 1973 Mann v Carnell (1999) 201 CLR 1 Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 Wayne Lawrence Pty Ltd v Hunt [1999] NSWSC 1044 Garratt's Ltd v Thanga Thangathurai [2002] NSWSC 39 Fort Dodge Australia Pty Ltd v Nature Vet Pty Ltd [2002] FCA 501 BP Australia Pty Ltd v Nyran Pty Ltd [2002] FCA 1302 United Rural Enterprises v Lopmand [2002] NSWSC 1142 DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499 Singapore Airlines v Sydney Airports Corporation [2004] NSWSC 380 Wyadra Pty Ltd v Mailler (No 2) [2005] NSWSC 88 Equuscorp Pty Ltd v Kamisha Corp Ltd (1999) ATPR 41-697 John Tanner Holdings Pty Ltd v Mortgage Management Ltd (2001) 182 ALR 201 Liquorland (Australia) Pty Ltd v Anghie [2003] 7 VR 27 at 42 Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 1296 Stead v State Government Insurance Commission (1986) 161 CLR 141
PARTIES:	Mr Xian Sheng Chen, Shu Hsing Tseng and Jie Chen Zheng - Appellants City Convenience Leasing Pty Ltd (formerly known as City Convenience Stores Pty Ltd) - First Respondent Jamal Gebara - second Respondent
FILE NUMBER(S):	CA 40749/04
COUNSEL:	Mr D B McGovern SC/ Mr A O'Brien - Appellants Mr N Cotman SC/ Mr K…