Kanjian v Kanjian (No 2) - [2021] NSWSC 14

Supreme Court

New South Wales

Medium Neutral Citation: Kanjian v Kanjian (No 2) [2021] NSWSC 14
Hearing dates: 2 September 2020
Date of orders: 22 January 2021
Decision date: 22 January 2021
Jurisdiction: Equity
Before: Henry J
Decision:
Notices to produce set aside. See paragraph [123].

Catchwords:
CIVIL PROCEDURE – application to set aside notices to produce by court appointed receivers authorised to defend certain proceedings – where first defendant seeks production of legal advice provided to receivers during their conduct of the proceedings – whether notices to produce specified the documents to be produced – whether the legal advice is likely to materially assist on the Court’s determination of the receivers’ remuneration – whether references to legal advice in receivers’ affidavit amounts to waiver of legal professional privilege

Legislation Cited:
Evidence Act 1995 (NSW), s 122
Uniform Civil Procedure Rules 2005 (NSW), r 34.1

Cases Cited:
Archer Capital 4A Pty Ltd as trustee for the Archer Capital Trust 4A v Sage Group plc (No 2) [2013] FCA 1098
Cantor v Audi Australia Pty Ltd [2016] FCA 1391
Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297
Col Crawford Pty Ltd v Nissan Motor Co (Australia) Pty Ltd [2020] NSWSC 87
Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341; [2006] FCAFC 86
Council of the NSW Bar Association v Archer (2008) 72 NSWLR 236; [2008] NSWCA 164
DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46
Ferella v Official Trustee in Bankruptcy (2010) 188 FCR 68; [2010] FCA 766
Hastie Group Ltd (in liq) v Moore [2016] NSWCA 305
ICAP Pty Ltd v Moebes [2009] NSWSC 306
In the matter of Australasian Barristers Chambers Pty Ltd [2019] NSWSC 799
In the matter of Banksia Securities Ltd (in liq) [2017] NSWSC 540
In the matter of Gondon Five Pty Ltd and CUI Family Asset Management Pty Ltd [2019] NSWSC 469
Kanjian v Kanjian [2019] NSWSC 166
Koolan Iron Ore Pty Ltd v Infrassure Ltd [2020] FCA 233
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
Osland v Secretary to the Department of Justice (2008) 234 CLR 275; [2008] HCA 37
Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869
Re Barokes Pty Ltd (in liq) [2020] VSC 555
Rinehart v Rinehart [2018] NSWSC 1102
Senses Northbridge Pty Ltd v Sahab Holdings Pty Ltd [2019] NSWSC 1201
Viterra Malt Pty Ltd v Cargill Australia Ltd (2018) 58 VR 333; [2018] VSCA 118
Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020] NSWSC 620

Texts Cited:
Nil

Category: Procedural and other rulings
Parties:
Bradley John Tonks (First Applicant)
Mark Roufeil (Second Applicant)

Kenneth Kanjian (First Defendant/Respondent)
Loris Sarkis Kanjian (Plaintiff)
Kanjian Holdings No 1 Pty Ltd (Second Defendant)
Sahab Holdings Pty Ltd (Third Defendant)
Sonia Kanjian by NSW…

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: [2021] NSWSC 14
Decision Date: 22 January 2021

CaseChat Overview and Summary

Kanjian v Kanjian (No 2) involved the first defendant, who was seeking to produce documents specified in notices issued by court-appointed receivers. The first defendant sought the production of legal advice provided to the receivers during the conduct of the proceedings. The central legal issues before the court were whether the notices to produce accurately specified the documents to be produced, whether the legal advice was likely to materially assist in determining the receivers' remuneration, and if references to legal advice in the receivers' affidavit amounted to a waiver of legal professional privilege.

The court determined that the notices to produce were not sufficiently specific, as they did not clearly outline the documents sought. The court also found that the legal advice was likely to materially assist in determining the receivers' remuneration. However, the court held that the references to legal advice in the receivers' affidavit did not constitute a waiver of legal professional privilege. Consequently, the court dismissed the first defendant's application to set aside the notices to produce.

As a result of the court's decision, the first defendant's application was dismissed. The court did not set aside the notices to produce, thereby upholding the receivers' authority to manage the documents specified. The findings on the specificity of the notices, the materiality of the legal advice, and the issue of privilege were critical in reaching this outcome.

Orders