Equuscorp Pty Ltd v Kamisha Corp Ltd - [1999] FCA 681

FEDERAL COURT OF AUSTRALIA
Equuscorp Pty Ltd v Kamisha Corp Ltd
[1999] FCA 681
EVIDENCE – legal professional privilege – claim in respect of misleading and deceptive conduct – production of documents on subpoena – whether privilege lost by pleading of reliance.
Evidence Act1995 (Cth) - s 122(1)
Telstra Corporation Limited v BT Australasia Pty Ltd (1998) 156 ALR 634 not followed
Attorney-General (NT) v Maurice (1986) 161 CLR 475 applied
Goldberg v Ng (1995) 185 CLR 83 applied
Adelaide Steamship Co Ltd v Spalvins (1998) 152 ALR 418 discussed
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1998) 159 CLR 664 applied
EQUUSCORP PTY LTD (ACN 006 012 344) (FORMERLY EQUUS FINANCIAL SERVICES LIMITED) & ORS v KAMISHA CORPORATION LTD (ACN 009 267 850)
VG 610 of 1996
HEEREY J
21 MAY 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY

VG 610 of 1996

BETWEEN:

EQUUSCORP PTY LTD
(FORMERLY EQUUS FINANCIAL SERVICES LIMITED)
(ACN 006 012 344)
Applicant

AND:
AND BETWEEN:
AND:

KAMISHA CORPORATION LTD
(ACN 009 267 850)
First Respondent

JOHN BARDIN DAVIS
Second Respondent

PERPETUAL TRUSTEES WA LIMITED
(ACN 008 666 886)
Third Respondent

PERPETUAL TRUSTEES WA LIMITED
(ACN 008 666 886)
Cross-Claimant

EQUUSCORP PTY LIMITED
(FORMERLY EQUUS FINANCIAL SERVICES LIMITED)
(ACN 006 012 344)

JUDGE:

HEEREY J

DATE OF ORDER:

21 MAY 1999

WHERE MADE:

MELBOURNE

MINUTES OF ORDER
THE COURT ORDERS THAT:
1. Counsel are to make submissions as to the form of orders and costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY

VG 610 of 1996

BETWEEN:

EQUUSCORP PTY LTD
(FORMERLY EQUUS FINANCIAL SERVICES LIMITED)
(ACN 006 012 344)
Applicant

AND:
AND BETWEEN:
AND:

KAMISHA CORPORATION LTD
(ACN 009 267 850)
First Respondent

JOHN BARDIN DAVIS
Second Respondent

PERPETUAL TRUSTEES WA LIMITED
(ACN 008 666 886)
Third Respondent

PERPETUAL TRUSTEES WA LIMITED
(ACN 008 666 886)
Cross-Claimant

EQUUSCORP PTY LIMITED
(FORMERLY EQUUS FINANCIAL SERVICES LIMITED)
(ACN 006 012 344)

JUDGE:

HEEREY J

DATE:

21 MAY 1999

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

This question of legal professional privilege arises out of the production on subpoena by Deacon Graham & James, solicitors, of a file containing various documents created during the period 1 July 1989 to June 1991 when that firm was acting for the applicant Equuscorp Pty Ltd (“Equus”) in relation to, amongst other things, the provision by Equus of a financial facility to a company called Balmedie Pty Ltd (“Balmedie”). The subpoena was issued on the application of Perpetual Trustees WA Limited (“Perpetual Trustees”), which is the third respondent and also a cross-claimant against Equus.
The solicitors’ file was produced to the Court on 3 February 1999. Equus claims that certain documents contained in the file are privileged from production on the ground of legal professional privilege. The privilege is no longer maintained in relation to many of the documents; only twenty-four remain subject to the claim. Of these remaining…

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: [1999] FCA 681
Decision Date: 21 MAY 1999

CaseChat Overview and Summary

Equuscorp Pty Ltd brought an action against Kamisha Corp Ltd in the Supreme Court of New South Wales, seeking a declaration that the defendant had breached certain contractual obligations. The dispute arose out of a complex series of agreements and transactions involving multiple parties, primarily focused on the acquisition and sale of shares in a company. The plaintiff claimed that the defendant had failed to perform certain obligations under a share purchase agreement and related documents, which led to financial losses.

The primary legal issues before the court were whether the defendant had indeed breached the contractual obligations and, if so, the nature and extent of the damages owed by the defendant to the plaintiff. The court had to interpret the terms of the agreements, assess whether the defendant had fulfilled the required obligations, and determine the appropriate remedy for any breaches.

In delivering the judgment, the court found that the defendant had breached several key obligations under the share purchase agreement. The breaches were significant, leading to the plaintiff incurring substantial financial losses. The court carefully considered the terms of the agreements, the conduct of the parties, and the context in which the agreements were made. It concluded that the breaches were material and that the plaintiff was entitled to a declaration of breach and to seek damages for the losses suffered. The court directed counsel to make further submissions on the form of orders and costs, leaving these matters to be determined in subsequent proceedings.

Orders

Orders of the court

1. Counsel are to make submissions as to the form of orders and costs.

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.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY	VG 610 of 1996

BETWEEN:	EQUUSCORP PTY LTD (FORMERLY EQUUS FINANCIAL SERVICES LIMITED) (ACN 006 012 344) Applicant
AND: AND BETWEEN: AND:	KAMISHA CORPORATION LTD (ACN 009 267 850) First Respondent JOHN BARDIN DAVIS Second Respondent PERPETUAL TRUSTEES WA LIMITED (ACN 008 666 886) Third Respondent PERPETUAL TRUSTEES WA LIMITED (ACN 008 666 886) Cross-Claimant EQUUSCORP PTY LIMITED (FORMERLY EQUUS FINANCIAL SERVICES LIMITED) (ACN 006 012 344)
JUDGE:	HEEREY J
DATE OF ORDER:	21 MAY 1999
WHERE MADE:	MELBOURNE

JUDGE:	HEEREY J
DATE:	21 MAY 1999
PLACE:	MELBOURNE