Eden Energy Ltd v Drivetrain USA Inc [No 2]
[2013] WASC 249
•28 JUNE 2013
EDEN ENERGY LTD -v- DRIVETRAIN USA INC [No 2] [2013] WASC 249
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 249 | |
| Case No: | CIV:1543/2011 | 24 JUNE 2013 | |
| Coram: | PRITCHARD J | 28/06/13 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's application is dismissed | ||
| B | |||
| PDF Version |
| Parties: | EDEN ENERGY LTD DRIVETRAIN USA INC ENGENCO LTD |
Catchwords: | Claim of waiver of legal professional privilege Waiver by pleadings Claim of knowing assistance under the second limb of Barnes v Addy |
Legislation: | Nil |
Case References: | Barnes v Addy (1874) LR 9 Ch App 244 Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 Commonwealth v Temwood Holdings Pty Ltd [2002] WASC 107 DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Maguire v Makaronis (1997) 188 CLR 449 Mann v Carnell (1999) 201 CLR 1 Nicholson and Others v Morgan [No. 3] [2013] WASC 110 Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347 Young Investments Group Pty Ltd v Mann (2012) 293 ALR 537; [2012] FCAFC 10 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
DRIVETRAIN USA INC
First Defendant
ENGENCO LTD
Second Defendant
Catchwords:
Claim of waiver of legal professional privilege - Waiver by pleadings - Claim of knowing assistance under the second limb of Barnes v Addy
Legislation:
Nil
Result:
Plaintiff's application is dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr J C Giles & Mr J Jacobson
First Defendant : Mr B Dharmananda SC & Mr P A Hopwood
Second Defendant : Mr B Dharmananda SC & Mr P A Hopwood
Solicitors:
Plaintiff : Hotchkin Hanly
First Defendant : Cocks Macnish
Second Defendant : Cocks Macnish
Case(s) referred to in judgment(s):
Barnes v Addy (1874) LR 9 Ch App 244
Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341
Commonwealth v Temwood Holdings Pty Ltd [2002] WASC 107
DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Maguire v Makaronis (1997) 188 CLR 449
Mann v Carnell (1999) 201 CLR 1
Nicholson and Others v Morgan [No. 3] [2013] WASC 110
Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152
Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347
Young Investments Group Pty Ltd v Mann (2012) 293 ALR 537; [2012] FCAFC 10
- PRITCHARD J:
1 The plaintiff has applied by chamber summons for an order requiring the defendants to produce for inspection a document listed in the defendants' supplementary list of discovered documents. That document is described as a copy of a letter from Tottle Partners to Mr M Darwish of Coote Industrial Limited (now Engenco Ltd, the second defendant) dated 5 December 2008 (the legal advice). The defendants claim that the legal advice is subject to legal professional privilege, and thus have declined to permit inspection of the legal advice. The plaintiff contends that legal professional privilege in the legal advice has been waived because the defendants, by their pleading in this action, have made an assertion which necessarily lays the legal advice open to scrutiny, so that an inconsistency arises between that pleading and the maintenance of the confidence in the legal advice.
2 For the reasons which follow, I am not persuaded that legal professional privilege in the advice has been waived. The plaintiff's application should be dismissed.
The pleadings
3 In summary, the plaintiff's action is for the payment of an amount which the plaintiff alleges is payable by the defendants pursuant to a contract. The defendants deny that they are liable to the plaintiff as alleged. In their defence and counterclaim the defendants allege, amongst other things, that the plaintiff is liable to them for equitable compensation. The pleaded basis for that claim is that the plaintiff participated in alleged breaches of fiduciary duties owed by another party, which the defendants claim were part of a 'dishonest and fraudulent design' in equity. In other words, the defendants' defence and counterclaim in the action includes a claim which falls under the second limb of Barnes v Addy1(the knowing assistance claim).
4 In order to understand the parties' submissions as to waiver, it is, however, necessary to outline in a little more detail the parties' pleadings. The parties' dispute arises from an agreement entered (or purportedly entered) into by the plaintiff in late October 2008, by which the plaintiff and another company agreed to sell, and Coote Energy agreed to buy, all of the ordinary shares in two companies which were subsidiaries of the plaintiff (the Shares). The plaintiff claims that the terms of the first agreement included that Coote Energy would purchase the Shares, and in consideration for that purchase, it would procure the issue to the plaintiff of 4 million ordinary shares in Coote Industrial (now Engenco, the second defendant).
5 The first agreement was varied (or purportedly varied) by a second agreement in early January 2009. The plaintiff claims that the terms of the second agreement included that the first defendant was to purchase the Shares and that it would pay the consideration for them, in the sum of $2 million (instead of the issue of shares in Coote Industrial). The plaintiff claims that the $2 million was to be paid in instalments, and that the second defendant guaranteed the payment of the purchase price by the first defendant.
6 It is not in dispute that the first defendant paid some of the instalments of the purchase price, and that the Shares were transferred to the first defendant, but the plaintiff claims that the first defendant has failed to pay the whole of the agreed consideration for the Shares, and that the second defendant has failed to pay the amount outstanding in accordance with its guarantee.
7 The defendants deny that they are bound by the first and second agreements, which they claim were entered into by a director of both defendants and of Coote Energy (the director) without authority and in breach of duties he owed to the defendants. It is not in dispute that the director owed statutory and fiduciary duties to the first and second defendants and to Coote Energy, and that the director had a personal pecuniary interest in the plaintiff.
8 The defendants plead that the director purported to enter into the first and second agreements, and caused the payment to the plaintiff of some of the instalments payable under the second agreement, whilst (amongst other things) he was in a position where his personal financial interests in the plaintiff conflicted with his duties to the first and second defendants and to Coote Energy. The defendants allege that the director breached his statutory and fiduciary duties to the first and second defendants, and to Coote Energy, by purporting to enter into the first and second agreements in that he did not act in good faith and in the best interests of the defendants or Coote Energy, nor did he act for a proper purpose. The bases for that claim include that the consideration to be paid for the Shares was in excess of their value (so that the transaction would not benefit either of the defendants), that the director did not recognise that he had a conflict of interest (given that he had an interest in each of the defendants, Coote Energy and the plaintiff, and at the same time owed duties to the defendants and Coote Energy) and that the director purported to use his position to give an advantage to the plaintiff, or to cause a detriment to the defendants.
9 The defendants plead that the plaintiff had knowledge of circumstances which would have indicated that the director had breached his fiduciary duties, and that those breaches were part of a 'dishonest and fraudulent design' in equity. They plead that the plaintiff participated in the director's breaches of fiduciary duty by, amongst other things, executing the first and second agreements, transferring the Shares, and receiving payments for the Shares.
10 The defendants plead that as a result of the director's alleged breaches of fiduciary duty they suffered loss or damage, and that in the circumstances the plaintiff is liable in equity to compensate them for that loss and damage. The defendants seek to set-off their claim for equitable compensation from the plaintiff against any amount due to the plaintiff.
11 In its reply and defence to counterclaim, the plaintiff denies that the defendants are entitled to the relief claimed. Amongst other things, the plaintiff contends that the director had actual or apparent authority to cause the first and second defendants, and Coote Energy, to enter into the first and second agreements. The plaintiff pleads that even if that was not the case, the director had the fully informed consent of the defendants to any conflict of duty or interest, and duty on his part (the informed consent defence).
The legal principles in relation to waiver of legal professional privilege
12 In Mann v Carnell,2 Gleeson CJ, Gaudron, Gummow and Callinan JJ explained the rationale for the waiver of legal professional privilege in the following way:
Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. …
Waiver may be express or implied. Disputes as to implied waiver usually arise about the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. … What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.
13 There was no dispute between the parties that the legal principles in relation to the waiver of privilege in the present context were set out by Allsop J (as his Honour was then) in DSE (Holdings) Pty Ltd v Intertan Inc3where his Honour observed that the waiver of the privilege would arise where
the party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication.
14 Determining whether waiver has occurred in this context involves a fact based inquiry as to whether, in effect, the privilege holder has directly or indirectly put the contents of an otherwise privileged communication in issue in litigation, for example in making a claim, or by way of defence, or by making an assertion as part of his or her case in the litigation, that lays open the privileged documents to scrutiny.4
15 In that analysis, the focus is on the conduct of the party who enjoys the benefit of the privilege. It is not open to another party to litigation to force waiver of a party's legal professional privilege by making assertions about, or seeking to put in issue, that party's state of mind.5
The defendants' pleading does not lay the legal advice open to scrutiny
The bases for the plaintiff's application
16 As I understand the submissions of counsel for the plaintiff, the plaintiff's submission - that the defendants, by their pleading, have necessarily laid open the legal advice to scrutiny - relies on three contentions.
17 First, the plaintiff contends that the defendants' knowing assistance claim 'necessarily involves the defendants asserting that they did not give fully informed consent to the director's conflict'.6
18 Secondly, the plaintiff contends that the facts which will be relied upon to establish the informed consent defence include (in addition to the defendants' knowledge of the director's conflict) the fact that the defendants sought legal advice which (on the plaintiff's submission) prima facie related to the director's position. Although this issue is not raised by the defendants' pleading, the plaintiff submits that the question whether a party's case necessarily lays open the confidential communication does not fall to be determined by reference to any onus of proof or by which party is required to plead an issue.
19 Having regard to these two contentions, the plaintiff submits that it is inconsistent to advance an allegation of breach of fiduciary duty, while at the same time maintaining confidentiality in legal advice on that very question. The plaintiff submits that to bring a case based on an allegation of a breach of fiduciary duty by a director of a company necessarily lays open to scrutiny any confidential communication between a lawyer and the defendant company relating to the position of that director and his conflict of interest. The plaintiff submits that this 'is because the question of fully informed consent is part of or wrapped up in the company's allegation, particularly in the circumstances that the conflict was recognised by the company and advice was then sought on that issue'.7
20 Thirdly, the plaintiff submits that maintenance of the privilege in the circumstances gives rise to forensic unfairness, given that the defendants make serious allegations, yet seek to maintain the confidentiality of legal advice which they obtained at the time and which may provide an answer to the allegations which form part of the factual issue raised by the defendants' case.
Nothing in the defendants' pleading lays open the legal advice to scrutiny, so as to be inconsistent with maintenance of confidentiality in the legal advice
21 I am unable to accept the plaintiff's submission, for the following reasons.
22 First, nothing in the defence and counterclaim constitutes an express assertion about the content of the legal advice or in any express way lays the legal advice open to scrutiny.
23 Secondly, I am unable to accept the plaintiff's contention that by implication the defendants' knowing assistance claim necessarily involves the assertion that the defendants did not give fully informed consent to the director's conflict of interest.
24 In some contexts, the elements of a claim pleaded by a party may put in issue that party's state of mind, and in some instances, that state of mind may ordinarily only be reached following the receipt of legal advice, so that in substance, the legal advice the party received will be in issue in the litigation as a necessary consequence of the pleaded claim itself. There have been numerous cases in which waiver of privilege arguments have arisen in this context. In DSE, Allsop J undertook a careful analysis of those cases in the course of which he summarised the question in the way I have quoted above at [13]. In order to understand what is meant by conduct which lays open legal advice to scrutiny, it is useful to bear in mind that Allsop J indicated that, notwithstanding some reservations about the breadth of the approach,8 the law on implied waiver was as set out by a majority of the Full Federal Court in Telstra Corporation Ltd v BT Australasia Pty Ltd9 (albeit read in light of the focus on inconsistency with the maintenance of the privilege following Mann v Carnell). In Telstra, Branson and Lehane JJ held:10
Where, as in this case, a party pleads that he or she undertook certain action 'in reliance on' a particular representation made by another, he or she opens up as an element of his or her cause of action, the issue of his or her state of mind at the time that he or she undertook such action. The court will be required to determine what was the factor, or what were factors, which influenced the mind of the party so as to induce him or her to act in that way. That is, the party puts in issue in the proceeding a matter which can not fairly be assessed without examination of relevant legal advice, if any, received by that party. In such circumstances, the party, by putting in context the issue of his or her reliance, is to be taken as having consented to the use of relevant privileged material, or to put it another way, to have waived reliance on the privilege which such material would otherwise attract.
…[T]he conduct of a party which leads to the implication of consent to the use of otherwise privileged material, or to an implied waiver of such privilege, in undue influence cases, legal professional negligence cases and, in my view, the 'state of mind' cases, is that of raising for determination in legal proceedings, as an element in the cause of action relied upon, an issue incapable of fair resolution without reference to that material.
… Nor is it a consequence of that principle that whenever a person's state of mind is relevant to an issue in proceedings, privilege is taken to be waived in relation to legal advice that may have played a part in the formation of that state of mind … . Where, however, a party relies on a cause of action, an element of which is the party's state of mind (including the quality of the party's assent to a transaction) the party is taken to have waived privilege in respect of legal advice which the party had, before or at the time of the relevant events, material to the formation of that state of mind.'
25 Applying the test for waiver discussed in DSE, I start by observing that the defendants' knowing assistance claim does not, of itself, involve an assertion by the defendants that they did not give fully informed consent to the director's conflict of interest. Similarly the knowing assistance claim does not have, as an element, the defendants' state of mind in relation to the director's conflict of interest. The principles concerning liability for a claim of knowing assistance under the second limb of Barnes v Addywere recently discussed by Edelman J in Nicholson and Others v Morgan11 (in the context of a breach of fiduciary duty by a trustee).It is unnecessary to repeat his Honour's observations here. It suffices to say that in order to make out a case of 'knowing assistance' it is not necessary that the defendants establish that they did not give informed consent to the director's acting, notwithstanding his conflict of interest.
26 In oral submissions, counsel for the plaintiff submitted that the defendants laid the legal advice open to scrutiny by including in their defence the plea that the director had breached his fiduciary duties to the defendants in that, amongst other things, he did not recognise that he had a conflict of interest. I am unable to see how a pleading of that kind necessarily lays open to scrutiny any legal advice a party might have obtained in respect of a fiduciary's duties or possible conflict of interest so as to give rise to an inconsistency between the pleading and the maintenance of confidentiality in their advice.
27 Thirdly, I am unable to accept the plaintiff's second contention, namely that evidence that the defendants sought legal advice in relation to the director's conflict of interest would be relevant to establish the informed consent defence. There are some instances where, even if a party's state of mind is not raised on that party's pleading, the issue of that party's state of mind necessarily will be in issue in the action, so that any legal advice which informed that state of mind will also, necessarily, be in issue in the action. Some undue cases may fall into this category, as Allsop J noted in DSEin the course of his discussion of the decision in Thomason v Campbelltown Municipal Council.12Allsop J observed13 that in those cases:
The claim of undue influence has at its heart the influence of the donee. Highly relevant, indeed likely central, to the assessment of the operation of that influence will be whether the donor may have been freed of that influence of independent advice. … It would matter not which party in the suit was required to plead, or did plead, the existence and nature of the advice, or which party chose to lead the evidence. The reason why the plaintiff cannot retain the confidentiality in the advice is to be analysed with an eye to substance not form. By bringing the suit the plaintiff lays out for examination, dispute and resolution the extent of the ascendancy or influence of the donee on him or her and on his or her capacity to come to a decision free from such ascendancy or influence. If there has been legal advice given to the donor about the transaction, the suit will almost certainly involve an assessment of the effect of that advice, along with all other relevant matters… . If the plaintiff brings such a suit in circumstances where such advice has been given, it is difficult to see how he or she can avoid the conclusion that he or she is, by the claim in the suit, opening up that legal advice for scrutiny, irrespective of the question as to who bears the procedural responsibility for pleading the advice, or as to who bears or assumes the forensic task of proving the advice.'
28 However, it cannot be said in any given case that provided one party in the proceedings raises an issue which throws up the need to understand a privileged communication to the other party in those proceedings, the privilege in that communication will be lost.14 That conclusion would be contrary to the authorities to which I have already referred, which establish that one party cannot force the waiver of the other party's privilege in legal advice by pleading an issue which puts that party's state of mind in issue. The focus must always remain on the conduct of the party who enjoys the privilege in the communication and on the question whether that conduct is inconsistent with the maintenance of the confidentiality in the advice. Consequently, in a case where a party does not, by his or her own pleading, put his or her own state of mind into issue, the question will be whether by commencing the action in the first place, in circumstances where the party's state of mind would necessarily be in issue, and where legal advice was likely to have contributed to that state of mind, that party can be said to have acted inconsistently with the maintenance of the confidentiality of any such legal advice which was received.15 That is the basis on which the decision in Thomasonhas also been understood.16
29 In the present case, the issue of whether the defendants gave informed consent to the director's acting, notwithstanding his conflict of interest, was raised solely by the plaintiff's reply and defence to counterclaim. It cannot be said that the informed consent defence was one that necessarily or inevitably would be raised in response to the defendants' knowing assistance claim (so that it might be argued that by pleading the knowing assistance claim, the informed consent defence would necessarily arise, which in turn might be said to necessarily lay open the legal advice to scrutiny). A variety of matters might be raised by way of defence to a knowing assistance claim. I note for completeness that the defendants have not sought to advance any positive case in reply to that defence. At least at this stage, it appears that the defendants simply intend to put the plaintiff to proof in respect of the informed consent defence.
30 In my view, it is the plaintiff (and not the defendants) which has put into issue whether the defendants consented to the director's acting, notwithstanding his conflict of interest. Nothing in the defendants' pleading or conduct is inconsistent with the maintenance of confidentiality in the legal advice. By pleading the informed consent defence, the plaintiff cannot force the waiver of the defendants' privilege in the legal advice.
31 The implication of the plaintiff's submissions appears to be that in any case involving a claim of knowing assistance for a breach of fiduciary duty, a party advancing that claim would risk waiving legal professional privilege in any legal advice received in relation to the conduct of the fiduciary. Counsel for the plaintiff submitted that the present application was confined to one piece of legal advice only, and the application was made in circumstances which were out of the ordinary, in that in this case the defendants had expressly pleaded the director's conflict of interest, and the legal advice had apparently been sought by the defendants in relation to that very question. For the reasons set out above, those considerations do not support the conclusion that the pleading necessarily lays open the legal advice to scrutiny, in a manner inconsistent with the confidentiality of the advice.
32 Fourthly, I do not accept the plaintiff's third contention that the maintenance of privilege in the legal advice in the circumstances of this case would give rise to forensic unfairness. In order to make out its defence of informed consent, the plaintiff will need to establish the defendants' informed consent to the director's acting in the circumstances, notwithstanding his conflict of interest.17 What is required for a fully informed consent 'is a question of fact in all the circumstances of each case and there is no precise formula which will determine in all cases if fully informed consent has been given'.18 If the legal advice was in fact provided to the defendants, and if it actually addressed the director's conflict of interest, and provided advice on the implications of proceeding with the agreements notwithstanding his conflict of interest, that would no doubt be relevant to the plaintiff's informed consent defence.19 But even if all that were so, it would not, of itself, be a basis for the waiver of the privilege in the legal advice. The inevitable effect of a claim to legal professional privilege, if it is upheld, is to exclude material which would otherwise be relevant to the determination of issues in an action. The waiver of legal professional privilege is not determined by reference to some overriding principle of fairness which operates at large.20 The question in every case is whether the conduct of the party enjoying the benefit of the privilege is inconsistent with the maintenance of the confidentiality of the legal advice which the privilege is designed to protect. At this stage, nothing in the defendants' conduct is inconsistent with the maintenance of the confidentiality of the legal advice.
33 The conclusion I have reached means that it is unnecessary to consider an alternative argument advanced by the defendants, particularly in respect of the plaintiff's contention that the maintenance of the privilege would give rise to forensic unfairness. The defendants' argument was that the plaintiff had not discharged the evidentiary burden upon it to show that the defendants' directors received the legal advice, with the result that the plaintiffs had not demonstrated its relevance to the plaintiff's case. There was conflicting evidence in the affidavits relied upon by the parties for the purposes of the application in relation to the question whether the defendants' directors received the legal advice. Further, counsel for the plaintiff submitted that I should rely on the fact that there was no evidence on affidavit from Mr Darwish to the effect that he did not receive the advice, so as to draw an inference on the balance of probabilities for the purpose of the application that Mr Darwish did receive the legal advice. Having regard to the nature and limitations of the available evidence within the context of this interlocutory application, and given that the question whether the defendants received the legal advice may well be an important element of the informed consent defence at trial, it is neither possible nor appropriate to attempt to draw any conclusion about this issue, in circumstances where it is not necessary for me to do so in order to resolve the question of waiver of the privilege.
34 The conclusions I have reached are premised on the conduct of the defendants to date in relation to the content of the pleadings and the conduct of the litigation. Although it hardly needs to be said, I observe that should the conduct of the defendants, either in relation to the content of the pleadings or otherwise in the future course of the action, be thought inconsistent with the maintenance of the confidentiality in the legal advice which the privilege is intended to protect, the plaintiff would be entitled to renew its application to inspect the advice on the ground that privilege in it had been waived.
1Barnes v Addy(1874) LR 9 Ch App 244, 251 - 252 (Lord Selborne LC).
2Mann v Carnell (1999) 201 CLR 1, [28] - [29].
3DSE (Holdings) Pty Ltd v Intertan Inc(2003) 127 FCR 499, [58].
4Commissioner of Taxation v Rio Tinto Ltd(2006) 151 FCR 341, [61], [65] - [67].
5Commonwealth v Temwood Holdings Pty Ltd[2002] WASC 107, [10] (Wheeler J); DSE (Holdings) v Intertan Inc(2003) 127 FCR 499, [121] (Allsop J).
6 Plaintiff's Outline of Submissions, 12 June 2013, [12].
7 Plaintiff's Outline of Submissions, 12 June 2013, [13].
8DSE (Holdings) Pty Ltd v Intertan Inc(2003) 127 FCR 499, [95] - [99], [112].
9Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152.
10Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152, 166 - 167 and 167 - 168.
11Nicholson and Others v Morgan [No. 3][2013] WASC 110, [30] - [103]. See also Young Investments Group Pty Ltd v Mann (2012) 293 ALR 537, 551; [2012] FCAFC 107, [55] - [56]; and Heydon J D & Leeming M J, Jacobs' Laws of Trusts in Australia (7th ed, 2006) 291.
12Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347.
13DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499, [46].
14DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499, [45] (Allsop J).
15 See DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499, [48].
16 See DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499, [47] - [48] and see also the reference in DSE to the analysis of Thomasonin United States Surgical Corporation v Hospital Products International Pty Ltd(unreported, NSWSC, 13 October 1981, McLelland J) at [54] - [56].
17Maguire v Makaronis(1997) 188 CLR 449, 466 (Brennan CJ, Gaudron, McHugh & Gummow JJ).
18Maguire v Makaronis(1997) 188 CLR 449, 466 - 467 (Brennan CJ, Gaudron, McHugh & Gummow JJ); Farah Constructions Pty Ltd v Say-Dee Pty Ltd(2007) 230 CLR 89, [107] (Gleeson CJ, Gummow, Callinan, Heydon & Crennan JJ).
19Maguire v Makaronis(1997) 188 CLR 449, 466 - 467 (Brennan CJ, Gaudron, McHugh & Gummow JJ).
20Mann v Carnell (1999) 201 CLR 1, [29].
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